Opinion
CIV-22-766-D
06-15-2023
JOHN HIGLEY, Petitioner, v. KAMERON HARVONEK, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner appearing pro se, has filed this action seeking relief under 28 U.S.C. § 2254. Respondent has filed a Motion to Dismiss (Doc. No. 18), to which Petitioner filed a Response. Doc. No. 23. 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 Respondent's Motion to Dismiss be granted and this action dismissed as untimely.
I. Background
On August 30, 2019, following an entry of a nolo contendere plea, the state district court convicted Petitioner of Lewd Molestation. Doc. No. 19-1. The court sentenced Petitioner “to a term of 25 years [imprisonment] with all but the first 20 years suspended.” Id. Petitioner did not move to withdraw his plea nor file a direct appeal. Since shortly after his conviction, Petitioner has been confined at the Lexington Assessment and Reception Center (“LARC”) located in Lexington, Oklahoma.
Petitioner contends that he submitted an application for post-conviction relief seeking to file an appeal out of time on February 4, 2021, however, the state district court has no record of receiving the same. Doc. No. 19-4. On March 29, 2021, Petitioner filed an application for post-conviction seeking an order recommending an appeal out of time. Doc. No. 19-5. Prior to the state district court ruling on Petitioner's application, he filed a second application seeking the same relief on May 13, 2021. Doc. No. 19-8. On May 20, 2021, the state district court denied Petitioner's requests. Doc. No. 19-10.
Petitioner appealed the state court's denial to the Oklahoma Court of Criminal Appeals, which affirmed the lower court's ruling on September 28, 2021. Doc. No. 19-11. Petitioner then filed a Petition for Writ of Certiorari with the United States Supreme Court, which denied the same on June 13, 2022. Doc. No. 19-12.
Petitioner filed the current action on August 30, 2022. By this action, Petitioner contends that he was denied an opportunity to appeal through no fault of his own and in violation of his rights to due process. He also contends that he was denied an evidentiary hearing that would have allowed him to bring meritorious claims for ineffective assistance of counsel. Respondent has filed a Motion to Dismiss Habeas Corpus Petition as Time-Barred by the Statute of Limitations. Doc. No. 18.
II. Statute of Limitations
A. Applicable Limitations Period
Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must seek habeas relief within one-year and said 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[.]” The state court sentenced Petitioner on August 30, 2019, following a plea of nolo contendere. Doc. No. 19-1. Petitioner did not move to withdraw his plea nor file a direct appeal. Petitioner's conviction became final under 28 U.S.C. § 2244(d)(1)(A) on Monday, September 9, 2019, when the time for Petitioner to file an application to withdraw his guilty plea expired. Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (noting the petitioner's Oklahoma convictions became “final ten days after entry of Judgment and Sentence”).
Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18 App.
Thus, Petitioner had one year beginning on September 10, 2019, 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 Monday, September 10, 2020. Petitioner did not file this action until August 30, 2022.
B. Statutory Tolling
Providing Petitioner with every benefit of the doubt, the Court will presume, without deciding, that he filed his first application for post-conviction relief on February 4, 2021, when he claims he did so but the state court did not receive the same. Doc. No. 19-4; Doc. No. 23-3. 28 U.S.C. § 2244(d)(2) provides, “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 filing a habeas petition. (emphasis added). Presuming Petitioner filed his first application on February 4, 2021, it was not filed until after his statute of limitations had already expired. Thus, Petitioner is not entitled to statutory tolling.
C. Equitable Tolling
28 U.S.C. “§ 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling is “a rare remedy to be applied in unusual circumstances.” Al-Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir. 2015) (quotations omitted). “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.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). “An inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quotations and alteration omitted). He must also describe “the steps he took to diligently pursue his federal claims while those circumstances existed.” Pena-Gonzales v. State, No. No. 21-3174, 2022 WL 214747, at *1 (10th Cir. Jan. 25, 2022) (quotations omitted) (noting that Yang requires both “extraordinary circumstances and due diligence”). Said differently, the inmate must provide “specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal” petition. Miller, 141 F.3d at 978.
Petitioner contends that extraordinary circumstances, in the form of multiple lockdowns, prevented him from pursuing his rights in a timely manner. With his Response, Petitioner submitted a letter, dated April 7, 2023, from Mike Rogers, LARC's Acting Warden. In his letter, Warden Rogers explains that LARC was under a statewide lockdown from September 2019 through October 2019 due to security issues. Doc. No. 23-1. Warden Rogers further states that LARC was on a facility wide lockdown from April 2020 through June 2021 due to the COVID-19 pandemic. Id. Warden Rogers explains that during these lockdowns, “inmates' access to legal material [was] extremely limited and [they] were unable to utilize the law library resources.” Id.
Petitioner urges the Court to equitably toll the statute of limitations on his habeas action during these periods of lockdown due to his limited access to legal materials and resources. He also states that during these periods of lockdown, the inmates, including himself, were often confined to their cells for two to four days at a time or were only released for 20 minutes per day in order to shower. Doc. No. 23 at 4. Petitioner contends these circumstances warrant the application of equitable tolling to his statute of limitations. Id.
Generally, a lockdown that impedes access to relevant law is insufficient to warrant equitable tolling. Winston v. Allbaugh, 743 Fed.Appx. 257, 258-59 (10th Cir. 2018) (citing Bickham v. Allbaugh, 728 Fed.Appx. 869, 871 (10th Cir. 2018)); Jones v. Taylor, 484 Fed.Appx. 241, 242-43 (10th Cir. 2012); Sandoval v. Jones, 447 Fed.Appx. 1, 4 (10th Cir. 2011); see also Phares v. Jones, 470 Fed.Appx. 718, 719 (10th Cir. 2012) (“The mere fact of a prison lockdown . . . does not qualify as extraordinary absent some additional showing that the circumstances prevented him from timely filing his habeas petition.”). The same is true when an inmate lacks library access for other reasons. See Weibley v. Kaiser, 50 Fed.Appx. 399, 403 (10th Cir. 2002) (“[A]llegations regarding insufficient library access, standing alone, do not warrant equitable tolling.”). Equitable tolling may be available based on a total lack of legal access, such as “a complete confiscation of [the petitioner's] legal materials just weeks before his filing deadline[.]” United States v. Gabaldon, 522 F.3d 1121, 1126 (10th Cir. 2008). However, the inmate must still establish due diligence. Id.
This law has not changed in the context of the COVID-19 pandemic. The Tenth Circuit has repeatedly declined to apply equitable tolling where the habeas petitioner had “limited access to the prison law library due to COVID-19 quarantine lockdowns[.]” Strickland v. Crow, No. 21-6085, 2022 WL 245521, at *4 (10th Cir. 2022); Donald v. Pruitt, 853 Fed.Appx. 230, 234 (10th Cir. 2021) (same); see also Pena-Gonzales, 2022 WL 214747, at *1 (finding no equitable tolling where the petitioner alleged “lockdowns caused by COVID-19, riots, and prison killings prevented him from accessing the prison law library”); Strickland v. Crow, No. CIV-21-64-HE, 2021 WL 3566406, at *4 (W.D. Okla. June 8, 2021) (“While a COVID-19 lockdown is certainly outside an inmate's control, a lockdown merely impedes access to the relevant law, which the Tenth Circuit Court of Appeals has repeatedly ruled insufficient to warrant equitable tolling.”).
The circumstances in Donald are similar to the present case. The petitioner there argued he had “limited access to the law library in the wake of COVID-19” and that “COVID restrictions prevented him from meeting with another inmate for help in preparing and filing his legal documents[.]” Donald, 853 Fed.Appx. at 234. The Tenth Circuit concluded that, notwithstanding these obstacles, the petitioner failed to show “he was pursuing his rights diligently throughout the one-year window, including before the COVID-19 restrictions went into place.” Id.
Similarly, even if Petitioner established extraordinary circumstances, the facts fail to show he made any diligent efforts to pursue claims during the seven months before COVID restrictions were in place. For example, Petitioner “does not mention particular steps he took to finalize and file [documents for state or federal court before] the limitations period ran.” Pena-Gonzales, 2022 WL 214747, at *1 (quotations omitted) (addressing equitable tolling in light of COVID lockdowns). See also United States v. Henry, No. 2:17-CR-00180, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (“The bottom line is that the COVID-19 pandemic does not automatically warrant equitable tolling for any petitioner who seeks it on that basis. The petitioner must establish that he was pursuing his rights diligently and that the COVID-19 pandemic specifically prevented him from filing his motion.”); Gabaldon, 522 F.3d at 1127 (finding due diligence where habeas petitioner made “multiple requests” to obtain “legal materials before his filing deadline”). Moreover, Petitioner was clearly able to prepare and submit multiple documents with both the state district and appellate courts beginning on February 4, 2021, well before the COVID lockdown terminated at the end of June 2021. Doc. Nos. 19-4, 19-5, 19-6, 19-8, 23-2; see also Oklahoma Supreme Court Network, Higley v. State, Oklahoma Court of Criminal Appeals, Case No. PC-2021-663. Thus, Petitioner fails to satisfy the due diligence prong of equitable tolling with respect to a lack of legal access during the COVID-19 lockdown.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2021-663
The Supreme Court has also held that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, such tolling of the limitations period for actual innocence is appropriate only in rare instances in which the petitioner shows that “in light of the new evidence [presented by the petitioner], no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Petitioner does not set forth new evidence indicating he was innocent of the underlying crime in this matter. Accordingly, as Petitioner has failed to establish a basis for equitable tolling, Respondent's request for dismissal of this action as untimely should be granted.
RECOMMENDATION
Based on the foregoing findings, it is recommended Respondent's Motion to Dismiss (Doc. No. 18) be GRANTED. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by May 22, 2023. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 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.