SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed an application for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his convictions for aggravated trafficking in illegal drugs and possession of a firearm while in the commission of a felony in the District Court of Canadian County, Case No. CF-2012-739. Respondent has filed a Motion to Dismiss arguing the Petition should be dismissed as second and successive. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be granted.
I. Current Habeas Petition
Petitioner was charged with aggravated trafficking in illegal drugs and possession of a firearm while in the commission of a felony following a traffic stop in which drugs and other materials were found in Petitioner's vehicle. Doc. No. 14- 1 at 1-3. In November 2013, Petitioner was convicted, following a jury trial, of each count. Doc. No. 1 ("Petition") at 2. Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals ("OCCA"), which affirmed his convictions in a summary opinion on December 15, 2014. Doc. No. 14-1.
Petitioner initiated the current action challenging those convictions on June 18, 2018. See generally Petition. In Ground One, Petitioner contends the OCCA failed to follow its own procedural rules in denying one of his post-conviction appeals. Petition at 6-7. In Ground Two, Petitioner contends the "State failed to preserve evidence that would establish Petitioner's innocence in violation of due process of law." Petition at 8.
With regard to the second ground, the record indicates that on June 28, 2017, Petitioner filed a motion with the state district court requesting, inter alia, new and/or additional DNA testing on the drug packaging and other related materials found in his vehicle at the time of his arrest. Doc. No. 14-10 at 5-6. In an order entered on October 25, 2017 denying said request, the state district court explained, "The Court today heard argument from the Defendant who appears in person, and from the State. The Court also received a copy of an email communication from the supervisor of the Oklahoma Bureau of Narcotics interdiction team stating that all evidence seized from the Defendant at the time of the arrest, save one GPS unit and charging cable, have been destroyed in the normal course of OBN's evidence procedures. The Court notes that it has been over four years since the conclusion of the trial in this case. Therefore, the request to test any of the seized evidence is moot, as there is no relevant evidence to test. . . ." Doc. No. 14-11 at 1. In this action, Petitioner contends that he did not discover the State had destroyed the referenced evidence, thereby preventing him from obtaining new and/or additional DNA testing, until the October 24, 2017 hearing referenced in the above Order. Doc. No. 16 at 1.
In the Brief in Support of his Motion to Dismiss, Respondent advises that Petitioner has already sought habeas corpus relief under 28 U.S.C. § 2254 with respect to these convictions. See Sanchez v. Bryant, Case No. CIV-15-79-R. Therein, United States District Judge David L. Russell denied the Petition on the merits and the Tenth Circuit Court of Appeals subsequently denied Petitioner's request for a Certificate of Appealability. Sanchez v. Bryant, 652 F. App'x 599 (10th Cir. 2016). In his Response to Defendant's request for dismissal, Petitioner concedes that he filed the previous habeas action, explains that he did not understand the proper procedure prior to filing this second habeas action, and asks this Court to transfer his action to the Tenth Circuit rather than dismiss it. See generally Doc. No. 16.
28 U.S.C. § Section 2244(b) limits the circumstances in which a petitioner may proceed with a second or successive habeas corpus action under § 2254 by providing that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). This statutory requirement for prior authorization is jurisdictional. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (per curiam) ("The district court had no jurisdiction to decide [the petitioner's] successive § 2254 petition without authority from the court of appeals.").
As noted, Petitioner concedes that he did not receive the requisite prior authorization from the Tenth Circuit before filing his current Petition in this Court. Doc. No. 16 at 1. As the Tenth Circuit has explained, "[w]hen a second or successive § 2254 . . . claim is filed in the district court without the required authorization from this court, the district court may transfer the matter to this court if it determines it is in the interest of justice to do so under [28 U.S.C] § 1631, or it may dismiss the motion or petition for lack of jurisdiction." In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). "Where there is no risk that a meritorious successive claim will be lost absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the interest of justice to transfer the matter to this court for authorization." Id.
Respondent maintains that the interest of justice does not require transfer of this action to the Tenth Circuit because Petitioner's grounds for relief are time-barred. Doc. No. 14 at 3. The three primary considerations governing a court's decision to transfer rather than dismiss are as follows: (1) whether the action was filed in good faith in the wrong court; (2) whether dismissal might make it difficult for the petitioner to comply with the one-year limitations period governing federal habeas petitions; and (3) whether the claims are likely to have merit. See In re Cline, 531 F.3d at 1251. For two reasons, the undersigned finds it would not be in the interests of justice to transfer this action to the Tenth Circuit Court of Appeals and dismissal is appropriate.
First, the Petition would be time-barred under the one-year statute of limitations set out in the Antiterrorism and Effective Death Penalty Act "(AEDPA"). The AEDPA establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. §2244(d)(1).
The OCCA affirmed Petitioner's convictions on December 15, 2014, see Doc. No. 14-1, and they became final on March 15, 2015, the deadline for Petitioner to seek certiorari review with the United States Supreme Court. Locke v. Saffle, 237 F.3d 1269, 1273 (2001) ("Under the statute, a petitioner's conviction is not final and the one-year limitation period for filing a federal habeas petition does not begin to run until - following a decision by the state court of last resort - after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed." (quotations omitted)).
Thus, Petitioner had one year beginning March 16, 2015, to file his federal habeas petition commensurate with 28 U.S.C. § 2244(d)(1)(A). Absent statutory or equitable tolling, his one-year filing period expired on March 16, 2016, over two years before he filed the Petition herein.
Under 28 U.S.C. § 2244(d)(2), "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" will generally toll the statute of limitations applicable to a petitioner's time in which to file his habeas petition. However, Petitioner did not file an Application for Post-Conviction Relief until November 1, 2016, after the statute of limitations to file a habeas action had expired. Doc. No. 14-7. Thus, Petitioner is not entitled to statutory tolling.
In his Response, Petitioner contends that his Petition is not untimely because the basis for Ground Two is a "factual innocence claim thwarted by failure of the State to preserve evidence" and that the basis for the same was not discovered until the hearing held on October 24, 2017. Doc. No. 16 at 1. Construing Petitioner's argument liberally, the undersigned interprets this as an argument for the application of equitable tolling.
Petitioner's first ground for relief related to the OCCA's alleged failure to follow its own procedural rules, see Petition at 6-7, is not related to or centered on a claim of actual innocence. --------
The limitations period may be equitably tolled in extraordinary circumstances so long as the petitioner has diligently pursued his federal claims. Holland v. Florida, 560 U.S. 631, 645 (2010). See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) ("Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."). Actual innocence or incompetence may constitute extraordinary circumstances that warrant equitable tolling of the limitations period. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (recognizing equitable tolling might be appropriate where prisoner is actually innocent).
While Petitioner may not have been aware until October 2017 that evidence seized during his arrest had been destroyed, his ground for relief constitutes at best legal, rather than factual, innocence. A claim of legal, not factual, innocence does not provide a basis for equitable tolling. See Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (noting that actual innocence means factual innocence and that petitioner's claim his guilty plea was involuntary did not assert actual innocence of the crime to which he pled guilty); Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (noting legal defenses to criminal charge do not show factual innocence). See also Craft v. Jones, 435 F. App'x 789, 792 (10th Cir. 2011) (habeas petitioner's self-defense argument implicated legal, not factual, innocence and did not warrant equitable tolling).
Similarly, if the Court interprets Petitioner's assertions as an attempt to save his untimely filing under § 2244(d)(1)(D), delaying the running of the statute of limitations until the date the factual predicate of the claim presented could have been discovered through the exercise of due diligence, this claim remains untimely. While Petitioner may not have been aware that seized evidence had been destroyed, he could have made a request for DNA testing at the time of his trial and certainly prior to the filing of his first habeas petition. Thus, the Court should reject any reliance on 28 U.S.C. § 2244(d)(1)(D).
Second, the Court should conclude Petitioner would be unable to satisfy the requirements for filing a successive petition. To do so, Petitioner would have to meet one of two standards. First, Petitioner could establish his claims rely on a new rule of constitutional law made retroactively applicable to cases pending on collateral review. 28 U.S.C. § 2244(b)(2)(A). Or, similar to 28 U.S.C. § 2244(d)(1)(D), Petitioner could demonstrate that the factual predicate of his claims could not have been discovered previously through the exercise of due diligence, and clear and convincing evidence exists such that no reasonable factfinder would have found Petitioner guilty of the underlying offenses. 28 U.S.C. § 2244(b)(2)(B). Because Petitioner does not rely on a new rule of constitutional law, he would have to prove the latter standard as set forth in 28 U.S.C. § 2244(b)(2)(B). However, in the discussion of § 2244(d)(1)(D), the undersigned has already established Petitioner cannot meet such a requirement.
Because the action would be time-barred and Petitioner is unable to satisfy the requirements for filing a successive petition, it is not in the interests of justice to transfer this action to the Tenth Circuit Court of Appeals, pursuant to 28 U.S.C §1631. Instead, the Court should dismiss the Petition for lack of jurisdiction.
Based on the foregoing findings, it is recommended that Respondent's Motion to Dismiss Petition as Second and Successive (Doc. No. 13) should be granted and the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be dismissed for lack of jurisdiction. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by September 17th , 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 28th day of August, 2018.
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE