Opinion
No. CIV-19-542-HE
11-25-2019
ROY L. BOWMAN, Petitioner, v. JIMMY MARTIN, Warden, Respondent.
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 conviction for murder in the second degree in the District Court of Comanche County, Case No. CF-1976-202. Respondent has filed a Motion to Dismiss arguing, inter alia, 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. Procedural Background
This case has a complex and lengthy procedural background. In light of this, as well as the complicated issues presented herein, the undersigned shall limit discussion primarily to those proceedings most relevant to the resolution of the current Petition.
In 1976, Petitioner was convicted, following a jury trial, of murder in the second degree. Doc. No. 1 ("Petition") at 6. Petitioner was sentenced to "an indeterminate term of forty (40) years to life . . . ." Bowman v. State, 789 P.2d 631, 631 (Okla. Crim. App. 1990). "On September 17, 1976, the trial court ruled this sentence invalid as an ex post facto sentence under [Okla. Stat. tit. 21, § 701.9(B)] and re-sentenced Petitioner to an indeterminate sentence of ten (10) years to life." Id.
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals ("OCCA"), which affirmed the same on October 25, 1978. Bowman v. State, 585 P.2d 1373 (Okla. Crim. App. 1978). On March 3, 1988, Petitioner filed a Petition for Writ of Habeas Corpus. Doc. No. 12-1, Bowman v. Cowley, Case No. CIV-88-371-P. Therein, United States District Judge Layne R. Phillips dismissed the Petition. Doc. Nos. 12-3, 12-4.
In June 1989, Petitioner filed an application for post-conviction relief with the state district court. Bowman, 789 P.2d at 631. Petitioner argued, relying on previous decisions by the OCCA, that "he [wa]s entitled to have his sentence modified to the minimum of ten (10) years." Id. at 632. "[T]he trial court found that Petitioner's indeterminate sentence of ten (10) years to life was improper under [Okla. Stat. tit. 57, § 353] and that pursuant to [Okla. Stat. tit. 22, § 1085], Petitioner was to be resentenced to a determinate sentence. The trial court then sentenced Petitioner to life imprisonment." Id. at 631.
Petitioner appealed the district court's ruling to the OCCA. On appeal, the OCCA reversed the state district court's ruling, explaining, "It is a well established rule of law that the appropriate criminal penalty is the penalty in effect at the time the defendant commits the crime." Id. At the time of Petitioner's crime, "the penalty for second degree murder was a mandatory indeterminate term of 10 years to life, pursuant to [Okla. Stat. tit. 21, § 701.4]." Id. at 632. Accordingly, the OCCA remanded the case back to the state district court with instructions "to correct Petitioner's record and show his sentence to be an indeterminate sentence of ten (10) years to life." Id. In accordance with the OCCA's ruling, on January 18, 1991, the state district court entered an order resentencing Petitioner "to an indeterminate sentence of ten (10) years to life." Doc. No. 12-10 at 2.
On October 21, 2015, Petitioner filed a "Motion for Resentencing to Allow Petitioner the Opportunity to Be Present and Heard" with the state district court. Oklahoma State Courts Network, Bowman v. State, Comanche County District Court, Case No. CF-1976-202. The state district court held a hearing on Petitioner's motion on December 2, 2015. Doc. No. 12-12. Within the limited transcript Respondent provided to the Court, the state district court judge indicated that he permitted the hearing because Petitioner was not present in 1991 when the state court entered the order resentencing Petition in accordance with the OCCA's ruling. Id. at 4. The state court judge explained, "The reason that Mr. Bowman stands before this Court today is that I feel that the defendant is entitled to be present at all stages of his trial. That would include sentencing. Since he apparently was not personally present on the 18th day of January, 1991, when Judge Brock entered this order, I felt compelled to bring Mr. Bowman here to be present for a correction of the record to a sentence of ten years to life." Id. However, in addition to allowing his presence, the trial judge allowed Petitioner "to present evidence by way of mitigation" with regard to his sentence. Id.
See also http://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF 1976-202
The trial court found Petitioner had not presented any evidence justifying a modification to his sentence, therefore, he explained, "I will follow the mandate of the Court of Criminal Appeals and echo the sentence that was passed on the 18th day of January, 1991, by Jack Brock. Mr. Bowman, your sentence is now corrected pursuant to mandate of Court of Criminal Appeals for you to serve a term of ten years to life, an indeterminate sentence, as was the law at the time that your crime was committed." Id. at 5. The state court judge also stated that he did not think entering this sentence worked to "reinitiate any rights to a direct appeal." Id.
The Petitioner appealed the state court's ruling to the OCCA on January 19, 2016. Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. F-2015-1078. The OCCA dismissed the appeal as untimely on September 16, 2016. Doc. No. 12-14.
See also http://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F 2015-1078.
On October 24, 2017, Petitioner filed another application for post-conviction relief with the state court. Doc. No. 1-3. Therein, Petitioner relied on an Affidavit from Dr. William Yarbrough, dated October 6, 2017, in which Dr. Yarbrough stated that at the time of the murder underlying Petitioner's conviction, he was suffering from post-traumatic stress disorder ("PTSD") and chronic alcoholism. Doc. No. 1-3 at 9-10; Doc. No. 1-4 at 2. Petitioner argued this constituted new, mitigating evidence and that failure to consider the same renders his sentence in violation of the Fourteenth Amendment. Doc. No. 1-3 at 9, 12-13. Petitioner further relied on a state statute effective in November 2016 recognizing PTSD resulting from military service as a mitigating factor in determining criminal sentences. Id. at 10-11. In his second ground for relief, Petitioner attacked both his conviction and sentence, apparently based upon a theory of ineffective assistance of counsel claim, arguing counsel should have raised a defense of chronic alcoholism resulting in "settled insanity." Id. at 13-18. Finally, Petitioner argued that his "indeterminate sentence" violates the Eighth and Fourteenth Amendments. Id. at 19-20.
The district court denied Petitioner's application on March 7, 2018. Doc. No. 1-2. The court ruled that evidence related to Petitioner's mental state, including PTSD and chronic alcoholism, could have been raised in his sentencing hearing, his direct appeal, or his previous applications for post-conviction relief and thus, claims based thereon are procedurally barred from review. Id. at 2. The court also noted that the OCCA has previously concluded Petitioner's sentence was lawful. Id. at 2-3.
Petitioner appealed this decision to the OCCA, which affirmed the same on September 26, 2018. Doc. No. 1-1. The OCCA explained, "Petitioner has not established that the 2017 PTSD diagnosis relates back to the time of his crime and would have had a probable effect on his jury's verdict. If the 2017 PTSD diagnosis relates back to the time of his crime, Petitioner has not established sufficient reason why the issue was not asserted or was inadequately raised in previous proceedings." Id. at 4 (citation omitted). As to the constitutionality of his indeterminate sentence, the OCCA explained that counsel for Petitioner had failed to read and/or understand its previous rulings on this matter and the statutory basis for Petitioner's sentence. Id.
On June 13, 2019, Petitioner initiated the current action. See generally Petition. By this action, Petitioner asserts that his sentence is unconstitutional based on his PTSD diagnosis. He contends the diagnosis constitutes newly discovered mitigating evidence that must be considered in his sentence. Id. at 13-18. He further argues the OCCA's determination that this claim could have been raised earlier is unreasonable because the state law providing that PTSD is a mitigating factor for veterans was not effective until 2016. Id. at 14-15.
Though not clearly delineated as a separate ground for habeas relief, Petitioner also asserts claims of ineffective assistance of trial and appellate counsel. Id. at 19-22. He contends trial counsel failed to investigate and/or offer evidence related to his chronic alcoholism and extreme intoxication that created a state of settled insanity during the commission of the murder underlying his conviction. Id. He further argues his appellate counsel was deficient for failing to raise this issue on appeal. Id. at 21.
Respondent has filed a Motion to Dismiss in which he argues this action constitutes a second and successive habeas action. Doc. No. 12. Although such a finding generally requires transfer of this matter to the Tenth Circuit Court of Appeals for authorization to file a second habeas application, Respondent argues a transfer is unnecessary and/or not in the interest of justice because Petitioner's action is untimely and should be dismissed. Id.
II. Second or Successive
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) ("The district court had no jurisdiction to decide [the petitioner's] successive § 2254 petition without authority from the court of appeals.").
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). "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.
It is undisputed that Petitioner filed an action seeking habeas corpus relief in 1988 that was subsequently dismissed in 1989. Doc. Nos. 12-3, 12-4. However, relying on Magwood v. Patterson, 561 U.S. 320 (2010), Petitioner argues the current action is not second or successive based on the fact that subsequent to his first habeas action, a new "judgment" was entered by the state court resentencing him. The undersigned agrees.
In Magwood, the petitioner was found guilty of murder and was sentenced to death. Id. at 324. He ultimately obtained relief on his sentence in a § 2254 proceeding. Id. at 326. On remand, the state trial court resentenced the petitioner to death. Id. He then filed a second-in-time § 2254 petition challenging his new death sentence. Id. at 328. The question presented was whether this second-in-time §2254 petition was a "second or successive" petition under 28 U.S.C. § 2244(b) such that he needed to obtain permission from the federal appellate court to file it. Id. at 330.
The Supreme Court concluded the limitations imposed by § 2244(b) apply only to a "'habeas corpus application under § 2254,' that is, 'an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court.'" Id. at 332 (quoting 28 U.S.C. § 2244(b), 28 U.S.C. § 2254(b)(1)). The Court explained that "the phrase 'second or successive' must be interpreted with respect to the judgment challenged." Id. at 333. Because the petitioner's second-in-time § 2254 petition challenged a new judgment for the first time, it was not "second or successive" under § 2244(b). Id. at 323-24. In so concluding, the Supreme Court rejected the state's argument that § 2244(b) should be applied on a claim-by-claim basis, which would have required courts to look at each claim raised in the petition and decide whether the petitioner "had an opportunity to raise it in his first application, but did not do so." Id. at 331-32.
In the present case, Petitioner, unlike the petitioner in Magwood, challenges not only his sentence but also his underlying conviction. Notably, in Magwood, the Supreme Court declined to decide whether "a petitioner who obtains a conditional writ as to his sentence [would be allowed] to file a subsequent [§ 2254] application challenging not only his resulting, new sentence, but also his original, undisturbed conviction" because the petitioner had not previously attempted to challenge his underlying conviction. Id. at 342. However, on at least one occasion, the Tenth Circuit, has ruled that Magwood applies to a second in time application in which the petitioner challenges not only the new sentence but also the underlying conviction. See Tillman v. Bigelow, 672 F. App'x 803, 804 (10th Cir. 2016) (finding authorization unnecessary where the petitioner had been resentenced between the initial action seeking habeas relief and the current habeas action, explaining "Supreme Court precedent treated 'the existence of a new judgment [as] dispositive' in determining whether a § 2254 application is second or successive." (quoting Magwood, 561 U.S. at 338)). See also Wentzell v. Neven, 674 F.3d 1124, 1128 (9th Cir. 2012) (finding that a petition was not second or successive due to the presence of a new, intervening judgment, even where the amended judgment did not alter the convictions or sentences being challenged in the habeas petition); Campbell v. Sec'y for Dep't of Corr., 447 F. App'x 25, 27-28 (11th Cir. 2011) (finding that the petitioner who received an intervening judgment revising his sentence could, based on Magwood, also attack the unaltered prior conviction and remanding to district court for reconsideration of the petitioner's Rule 60(b) motion); Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010) ("It follows that, where a first habeas petition results in an amended judgment, a subsequent petition is not successive regardless of whether it challenges the conviction, the sentence, or both.").
A review of the case docket in Tillman confirms the petitioner was challenging not only his sentence but also his underlying conviction. Motion for Authorization to File a Second or Successive Habeas Corpus Petition under 28 U.S.C. § 2244(b) by a Prisoner in State Custody, Tillman v. Bigelow, No. 14-4106 (10th Cir. Sept. 9, 2014).
The undersigned concludes the Magwood rule applies to the facts presented herein. There is no dispute Petitioner was originally sentenced in 1976. See, supra. Although Petitioner has previously sought federal habeas relief, that petition was resolved in 1989 and the OCCA subsequently ruled Petitioner's sentence was unlawful and, at the OCCA's direction, the state district court entered an order resentencing Petitioner in 1991. Doc. No. 12-10. Thus, according to Magwood, Petitioner's current habeas is not in fact second or successive as it attacks a judgment that has not previously been challenged through a habeas action. Accordingly, Respondent's request to dismiss the Petition as second or successive should be denied.
III. Timeliness
A. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act "(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;28 U.S.C. §2244(d)(1).
(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.
The OCCA affirmed Petitioner's conviction on direct appeal on October 25, 1978, see Bowman v. State, 585 P.2d 1373 (Okla. Crim. App. 1978), and it became final on January 23, 1979, 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)). "Where a conviction became final before [the] AEDPA took effect, . . . the limitations period for a federal habeas petition starts on [the] AEDPA's effective date, April 24, 1996." Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Accordingly, Petitioner had until April 24, 1997, to file his federal habeas petition, Brim v. Zavaras, 371 F. App'x 885, 886 (10th Cir. 2010), and Petitioner did not file this action until June 13, 2019.
Petitioner, however, argues that his current action is timely under three alternative bases. First, Petitioner contends the action is timely, presumably pursuant to § 2244(d)(1)(C), based upon Oklahoma's passage of Okla. Stat. tit. 22, § 973a, allowing juries to consider PTSD as a mitigating factor in criminal sentences for veterans. Doc. No. 14 at 5. Second, he contends the state court's order on his motion for resentencing essentially restarted his one-year deadline to file under § 2244(d)(1)(A). Id. Finally, he asserts his Petition is timely under § 2244(d)(1)(D), arguing the statute of limitations did not begin to run until Dr. Yarbrough completed his Affidavit in October 2017 regarding Petitioner's PTSD diagnosis. Id. at 5-6.
Petitioner's reliance on § 2244(d)(1)(C) and Oklahoma's passage of Okla. Stat. tit. 22, § 973a is without merit. As the Respondent notes in his Motion to Dismiss, § 2244(d)(1)(C) provides that the one-year limitations period may begin running from the date on which a constitutional right is initially recognized by the Supreme Court. It is not triggered by a change in state law. See Perez v. Dir., Okla. Dep't of Corr., No. CIV-14-1271-R, 2015 WL 2131275, at *4 (W.D. Okla. May 6, 2015) (explaining that § 2244(d)(1)(C) is not triggered by decisions from state or other federal courts but "explicitly applies to a decision by the Supreme Court").
C. § 244(d)(1)(A)
Petitioner's argument that this action is timely based on the state court's ruling on his 2015 motion for resentencing is also unavailing. Petitioner states, "Petitioner's amended judgment and sentence was issued on March 8, 2016, and Petitioner filed an application for post-conviction relief with a request for evidentiary hearing on February 24, 2017, 353 days into the AEDPA." Doc. No. 14 at 5. Although the undersigned finds dubious at best Petitioner's assertion that the state court's ruling on his motion for resentencing restarted his habeas timeline, his action would remain untimely.
As Petitioner's counsel is aware, the state court history in this matter established that the proper date of the state's order denying Petitioner's motion for resentencing was December 2, 2015. Doc. No. 12-13. As the OCCA noted in finding that Petitioner's subsequent appeal from the ruling was untimely, "Judge Tayloe [] entered a written order, filed on December 2, 2015, stating, 'The record should be corrected by way of an Amended Judgment and Sentence reflecting the sentence of ten (10) years to life imprisonment as reflected in the Order previously entered herein.'" Doc. No. 12-4 at 3. The OCCA further explained that the Amended Judgment and Sentence subsequently filed on March 8, 2016, was "[a]pproved as to form' by both the Assistant District Attorney and Appellant's counsel. That document states that on December 2, 2015, 'Defendant Roy L. Bowman appears personally'" and having previously been sentenced for the crime of second degree murder, is sentenced to a term of ten years to life. Id. at 3-4. The OCCA concluded, "Judge Tayloe's December 2, 2015 written order in disposition of those pleadings constitutes the final judgment made appealable by [Oklahoma's Post-Conviction Procedure Act]." Id. at 4.
The undersigned notes Petitioner's counsel is inherently aware that December 2, 2015 was the ruling date in light of the fact that she initially filed her Petition in Error on January 19, 2016, almost three months prior to the March 8, 2016 Amended Judgment and Sentence. See Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Bowman v. State, Case No. F-2015-1078, http://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2015 1078.
As noted, under 28 U.S.C. § 2244(d)(1)(A), the one-year limitations period generally begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Again, presuming without deciding that the ruling on Petitioner's motion for resentencing restarted his habeas timeline, the relevant ruling was issued on December 2, 2015. See, supra. Because the state court interpreted Petitioner's motion for resentencing as a request for post-conviction relief, his Judgment and Sentence became final under 28 U.S.C. § 2244(d)(1)(A) on Monday, January 4, 2016, when the time for Petitioner to file a notice of appeal expired. Thus, absent statutory or equitable tolling, his one-year filing period expired on January 5, 2016, over three years before he filed the Petition herein. Thus, absent statutory or equitable tolling, Petitioner's action is untimely.
(i) Statutory TollingUnder 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. Petitioner's appeal of the state court ruling was not timely, see Doc. No. 12-14, and Petitioner did not file an application for post-conviction relief following the December 2015 ruling until February 21, 2017, after the statute of limitations to file a habeas action had expired. Doc. No. 12-15; Oklahoma State Courts Network, Bowman v. State, Comanche County District Court, Case No. CF-1976-202. Thus, Petitioner is not entitled to statutory tolling.
See also http://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF 1976-202
(ii) Equitable Tolling
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).
Petitioner does not assert actual innocence to the crime for which he was convicted but instead attacks his sentence and challenges whether he can be considered "criminally culpable for his actions" due to an alleged state of settled insanity. See generally Petition. Accordingly, Petitioner is not entitled to equitable tolling.
Finally, Petitioner argues this action is timely under § 2244(d)(1)(D), allowing a petitioner to timely file a habeas action within one year from the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. Petitioner's primary request for habeas relief is based on his contention that his sentence violates the Fourteenth Amendment because the trial court has not been presented with evidence that he suffered from PTSD during the commission of the murder for which he was convicted. Petition at 13-18. Petitioner argues he was not aware of this mental illness until October 2017, when Dr. Yarbrough completed an Affidavit setting forth a PTSD diagnosis, and therefore, his action is timely under § 2244(d)(1)(D).
Petitioner presented similar arguments to both the state district court and the OCCA. Each court rejected Petitioner's contention as a basis for post-conviction relief. As previously noted, the OCCA found, "Petitioner has not established that the 2017 PTSD diagnosis relates back to the time of his crime and would have had a probable effect on his jury's verdict. If the 2017 PTSD diagnosis relates back to the time of his crime, Petitioner has not established sufficient reason why the issue was not asserted or was inadequately raised in previous proceedings." Doc. No. 1-1 at 4 (citations omitted).
Similarly, in the present action, the undersigned finds Petitioner has not established that this condition could not have been discovered prior to 2017. In O'Bryant v. Okla., 568 F. App'x 632 (10th Cir. 2014), the petitioner raised a similar argument to that being raised in the current matter. Specifically, the petitioner filed a habeas action over 12 years after his underlying criminal conviction. Id. at 633-34. The petitioner argued that he was entitled to equitable tolling of his statute of limitations based on mental incompetence resulting from PTSD. Id. at 636. In its decision, the Tenth Circuit also implied the petitioner may have attempted to rely on § 2244(d)(1)(D) to argue his habeas petition was timely, asserting that his statute of limitations would have started to run on the date he discovered he suffered from this mental incompetence. Id. at 635. The court rejected this argument, explaining:
[The petitioner] has not made a plausible showing that the factual predicate for his claim of mental incompetence could not have been discovered prior to 1997 through the exercise of due diligence, especially since he is asserting a condition he supposedly suffered from at the time of his conviction and, therefore, during his life preceding the crime.Id.
Although, in the present case, Petitioner does not seek equitable tolling based on PTSD, the undersigned notes the Tenth Circuit's reasoning in rejecting a similar argument.
Mental incompetence, and even a late assertion of PTSD, covers a broad spectrum of more specific conditions. And within those specific conditions there are degrees of severity, functionality, and duration, all of which also include treatments, medications and much more. As a result, federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity such as that resulting in institutionalization or adjudged mental incompetence. See, e.g., United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004); Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998). Mr. O'Bryant's assertions fall far short of that level of specificity and incapacity which qualify as an extraordinary circumstance that prevented him from filing for years at a time.Id. at 636.
The same reasoning applies in the present case. Petitioner contends he has suffered from PTSD since as early as the age of nine. Doc. No. 1-4 at 1-2. In light of that, Petitioner has not made a plausible showing that he would not have been aware through the exercise of due diligence that he was suffering from a mental illness prior to 1997. See O'Bryant, supra.
Moreover, the relevant date for purposes of § 2244(d)(1)(D) is the date the factual predicate of his claim of mental illness could have been discovered, not the date Petitioner managed to obtain Dr. Yarbrough's Affidavit. See, cf., Taylor v. Martin, 757 F.3d 1122, 1124 (10th Cir. 2014) ("The "factual predicate" of Mr. Taylor's claim is that Mr. Cheatham lied when he testified on May 6, 2009, not that he swore out an affidavit to that effect in August 2011."); Craft v. Jones, 435 F. App'x. 789, 791 (10th Cir. 2011) (holding the petitioner knew about the factual predicate of his self-defense claim on the date of the crime, not the date (nearly five years later) when he obtained an exculpatory affidavit from a witness); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001) ("[T]he trigger in § 2244(d)(1)(D) is . . . discovery of the claim's 'factual predicate,' not recognition of the facts' legal significance."); Stelly v. Allbaugh, No. CIV-15-1215-W, 2016 WL 6956827, at *5 (W.D. Okla. Oct. 19, 2016) ("When a petitioner has knowledge of the underlying facts in a witnesses' affidavit, the timing for statute of limitations purposes begins at the time of the underlying action, not the date the affidavit was discovered."). Dr. Yarbrough's Affidavit itself establishes Petitioner was aware of his PTSD prior to 2017. Doc. No. 1-4 at 2. Dr. Yarbrough specifically states, "A prison psychologist and physician have both opined that he has PTSD as well." Id. Based on these reasons, Petitioner has failed to establish that the factual predicate of his claim, that he allegedly suffered from PTSD at the time of the underlying 1976 murder, was not discoverable with due diligence more than one year prior to the filing of his Petition. Accordingly, this case should be dismissed as untimely.
IV. Ineffective Assistance of Counsel
Although by no means a model of clarity, the Petition also appears to raise claims of ineffective assistance of trial and appellate counsel. Petition at 19-22. Petitioner contends trial counsel's performance was deficient based on counsel's failure to investigate and raise a defense of settled insanity resulting from severe intoxication and/or chronic alcoholism during the commission of the crime. Petition at 19-22. He also contends appellate counsel was ineffective for failing to raise this issue in his direct appeal. Id. at 21. Petitioner does not present an argument specific to this claim that would render it timely. There is no question Petitioner would have known of his own alcohol consumption at the time of the underlying crime and thus, could have raised these claims on direct appeal and/or the multiple state proceedings following the same. Thus, based on the same reasoning set forth above, Petitioner's ineffective assistance claims are untimely.
The undersigned notes Petitioner's ineffective assistance of counsel claims are also procedurally barred from habeas review. See Grant v. Royal, 886 F.3d 874, 889-90 (10th Cir. 2018) (explaining that habeas review is generally not available for claims that have been procedurally defaulted in state court).
RECOMMENDATION
Based on the foregoing findings, it is recommended Respondent's Motion to Dismiss (Doc. No. 11) be granted and the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by December 16th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this 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 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 25th day of November, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE