Opinion
CIV-23-492-D
07-19-2023
TYLER HOSTETTER, Petitioner, v. SHARON MCCOY, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 6). Chief United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be DISMISSED on filing as untimely.
I. PROCEDURAL BACKGROUND
In this action, Petitioner challenges four Oklahoma County District Court convictions: (1) Case No. CF-2020-3833; (2) Case No. CF-2021-3811; (3) Case No. CF- 2021-2060; and (4) Case No. CF-2021-2895. (ECF No. 6:1). In Case No. CF-2020-3833, on November 18, 2020, Petitioner entered a guilty plea to one count of unlawful possession of a controlled dangerous substance with the intent to distribute and one count of possession of a firearm while in the commission of a felony. See ECF No. 6:2; State Court Docket Sheet, State of Oklahoma v. Hostetter, Case No. CF-2020-3833 (Okla. Co. Dist. Ct. Nov. 18, 2020). At the time, Petitioner's sentence was deferred, and he was subject to supervision by the Oklahoma Department of Corrections. See id. On June 14, 2021 and August 16, 2021, the State filed an Application and an Amended Application to Accelerate Petitioner's Deferred Sentence. See State Court Docket Sheet, State of Oklahoma v. Hostetter, Case No. CF-2020-3833 (Okla. Co. Dist. Ct. June 14, 2021 & August 16, 2021). On October 12, 2021, the Court granted the Application and sentenced Petitioner to 7 years incarceration on each count, to run concurrently. See State Court Docket Sheet, State of Oklahoma v. Hostetter, Case No. CF-2020-3833 (Okla. Co. Dist. Ct. Oct. 12, 2021).
On page one of the form Petition, in response to the query regarding “name and location of court that entered the judgment of conviction [he is] challenging,” Mr. Hostetter listed Oklahoma County Court Case Nos. CF-2021-2060 and CF-2021-2895, for which Petitioner was convicted of possession of a firearm while on probation and possession of a firearm after former felony conviction, respectively. See ECF No. 6:1; see also State Court Docket Sheet, State of Oklahoma v. Hostetter, Case Nos. CF-2021-2060 & CF-2021-2895 (Okla. Co. Dist. Ct.); United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”). However, immediately thereafter, Plaintiff states that the corresponding “[c]riminal docket or case number[s]” to the case(s) he is challenging are: Case Nos. CF-2020-3833; CF-2021-3811; CF-2021-2060; and CF-2021-2895. (ECF No. 6:1). Thus, the undersigned will liberally construe the Petition as a challenge to all four cases.
In Case No. CF-2021-3811, on October 12, 2021, Mr. Hostetter plead guilty to one count of possession of a controlled dangerous substance with intent to distribute and one count of unlawful possession of a narcotic with intent to distribute, and was sentenced to 7 years incarceration on each count, to run concurrently. See ECF No. 6:2; State Court Docket Sheet, State of Oklahoma v. Hostetter, Case No. CF-2021-3811 (Okla. Co. Dist. Ct. Oct. 12, 2021). In Case No. CF-2021-2060, on October 12, 2021, Petitioner pled guilty to possession of a firearm while on probation, and was sentenced to 10 years incarceration, to run concurrently with the sentences in Petitioner's other cases. See ECF No. 6:2; State Court Docket Sheet, State of Oklahoma v. Hostetter, Case No. CF-2021-2060 (Okla. Co. Dist. Ct. Oct. 21, 2021). Finally, in Case No. CF-2021-2895, on October 12, 2021, Mr. Hostetter pled guilty to a charge of felon in possession of a firearm after a former conviction, and was sentenced to 10 years incarceration, to run concurrently with the sentences in Petitioner's three other cases. See ECF No. 6:2; State Court Docket Sheet, State of Oklahoma v. Hostetter, Case No. CF-2021-2895 (Okla. Co. Dist. Ct. Oct. 21, 2021).
Petitioner did not seek to withdraw any of the pleas, and thus failed to perfect a direct appeal in any of the cases. (ECF No. 6:2); see York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003). Petitioner sought no other review in state court until he filed a Motion for Judicial Review in all four cases on February 21, 2023. See ECF No. 6:3; See State Court Docket Sheets, State of Oklahoma v. Hostetter, Case Nos. CF-2020-3833; CF-2021-3811; CF-2021-2060; CF-2021-2895. (Okla. Co. Dist. Ct. Feb. 21, 2023). Mr. Hostetter filed his habeas Petition on June 5, 2023. (ECF No. 1). In the Petition, Mr. Hostetter asserts two grounds for relief. In Ground One, Petitioner alleges a violation of Double Jeopardy based on the two convictions for firearms possession. See ECF No. 6:5. In Ground Two, Mr. Hostetter argues “factual innocence” on one of the firearms charges, and one or more of the drug charges, stating: “[the] weapon was never in my possession. It was found in a center consoul [sic]. The drugs were not on me personally either.” (ECF No. 6:6-7).
On June 5, 2023, Mr. Hostetter filed the original petition, which was deemed deficient. (ECF Nos. 1 & 4). The undersigned therefore ordered Petitioner to use the Court-approved form, which was sent to him, and Mr. Hostetter complied by filing the form petition on June 26, 2023. (ECF No. 6). To be sure, a habeas petitioner may amend a habeas petition under Federal Rule of Civil Procedure 15, f and only fthe original [petition] was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case. Woodward v Williams, 263 F.3d 1135, 1142 (10th Cir. 2001). However, because Petitioner was ordered to utilize the Court's form petition, the undersigned does not construe ECF No. 6 as an Amended Petition, perse, but instead construes it as a clarification of Petitioner's claims he had raised in the original petition, as both petitions assert the same claims. See ECF Nos. 1 & 6. As a result, the undersigned liberally construes the filing date in favor of Petitioner as June 5, 2023, instead of June 26, 2023. But as discussed below, neither date would be timely. See infra.
II. SCREENING REQUIREMENT
District courts must review habeas petitions promptly and summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 Cases. Additionally, “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). However, “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising the issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred.” Day, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a § 2254 habeas petition sua sponte only if the petition is clearly untimely on its face. Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
III. AEDPA LIMITATIONS PERIOD
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;
(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)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing. See Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015). Because Mr. Hostetter did not appeal from his pleas, his conviction became final ten days following sentencing, on October 22, 2021. See supra. Thus, without tolling, Petitioner's one-year habeas statute of limitations to file a habeas petition expired on October 24, 2022. But Petitioner filed the habeas petition on June 5, 2023, over seven months after the limitations period had expired. (ECF No. 1). Thus, absent any statutory or equitable tolling, the action is untimely.
Because the one-year limitations period fell on Saturday, October 22, 2022, the Petitioner had until the following Monday, October 24, 2022 to file his habeas petition. See Fed.R.Civ.P. 6(a)(1)(C); Alexander v. Zavaras, 424 Fed.Appx. 738, 740, n. 1 (10th Cir. 2011).
IV. STATUTORY TOLLING
The AEDPA limitations period is tolled pending adjudication of a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim. See 28 U.S.C. § 2244(d)(2). On February 23, 2023, Mr. Hostetter filed a Motion for Judicial Review in each of his four cases. See supra. Whether statutory tolling is implicated by motions for judicial review under Oklahoma law is an unresolved issue in the Tenth Circuit. See Randal v. Albaugh, 662 Fed.Appx. 571, 573 n. 3 (10th Cir. 2016)); see also Ameen v. Clayton, 829 Fed.Appx. 864, 865 (10th Cir. 2020) (assuming, without deciding, that statutory tolling applied to time during which motion for judicial review under Okla. Stat. tit. 22, § 982a was pending and noting the issue is unresolved in the Tenth Circuit). But even if a motion for judicial review qualified for statutory tolling, Mr. Hostetter did not file any motions for judicial review until after expiration of the one-year limitations period. See supra. As such, those motions do not afford Petitioner the benefit of any statutory tolling. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Davis v. Nunn, No. CIV-21-1028 SLP, 2022 WL 1618534, at *3 (W.D. Okla. May 23, 2022) (finding that the petitioner's motions for judicial review which were filed after the expiration of the habeas limitations period, did not afford any statutory tolling). Accordingly, unless equitable tolling is applicable, the § 2254 claim is untimely.
V. EQUITABLE TOLLING
The AEDPA limitations period may be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an extraordinary circumstance stood in the petitioner's way and prevented timely filing. See Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances are extraordinary, equitable tolling is only available when the petitioner has been diligent in the pursuit of his habeas claims. See Holland, 631 U.S. at 653. Under this standard, the petitioner bears a “‘strong burden to show specific facts.'” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted).
Petitioner argues he is entitled to equitable tolling regarding Ground One (the alleged violation of Double Jeopardy) because he “did not find out about the multiple charges of poss of a firearm until after a year.” (ECF No. 6:13). But the undersigned finds this claim disingenuous, at best, as Mr. Hostetter pled guilty to the firearms charges in separate hearings, at separate times, and nowhere does he assert that he did not understand the plea agreement or was otherwise incompetent at the plea hearing. However, crediting Petitioner's allegations as true, Mr. Hostetter's failure to diligently pursue his habeas claims is fatal to his plea for equitable tolling. As stated, Mr. Hostetter claims that he discovered the basis for Ground One “a year” after his convictions. Taking this statement to be true, Petitioner's “discovery” occurred in approximately October of 2022. Yet Petitioner did nothing in either state or federal court to pursue the habeas claims, until he filed the Petition nearly eight months later.“Under long-established principles, petitioner's lack of diligence precludes equity's operation.” Pace v. DiGuglielmo, 125 S.Ct. 1807, 1815, 544 U.S. 408, 419 (2005). The Court should conclude that Petitioner is not entitled to equitable tolling.
Petitioner also states: “[I] did not find out about facts about firearms location in the vehicle until after a year had passed.” (ECF No. 6:13). This argument apparently relates to Ground Two-Petitioner's claim of actual innocence on one of the firearms charges. See supra. The undersigned will address this argument separately. See infra.
Petitioner admits that he never appealed the convictions or sought post-conviction relief. See ECF No. 6. Although Mr. Hofstetter claims that “exhaustion would be futile [because] [he] was out of time for post-conviction,” once he became aware of the factual basis for his claims, he could have sought an appeal-out-of time in state court as was his right under Okla. Ct. Crim. App. R. 2.1(E).
VI. ACTUAL INNOCENCE EXCEPTION
“[A] credible showing of actual innocence” based on newly discovered evidence “may allow a prisoner to pursue his constitutional claims” as to his conviction, under an exception to 28 U.S.C. § 2244(d)(1)-established for the purpose of preventing a miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Successful actual-innocence claims are rare due to the demanding evidentiary requirements for such claims. See id. at 383, 392, 401; House v. Bell, 547 U.S. 518, 538 (2006). “[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.' ” House v. Bell, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord McQuiggin v. Perkins, 569 U.S. at 399 (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims must be based on “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Petitioner attempts to invoke the actual innocence exception as to Ground Two (the claim of actual innocence) by stating he “did not find out about facts about firearms location in the vehicle until after a year had passed.” (ECF No. 6:13). Without a doubt, a sufficiently supported claim of factual, or actual, innocence is grounds for equitably tolling the limitation period of § 2244(d), See Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). But Petitioner's conclusory statement about not knowing about the location of the firearm in the vehicle “until after a year had passed” is insufficient to meet his heavy burden of proof to support his claim that he is actually innocent. See Weib/ey v. Kaiser, 50 Fed.Appx. 399, 403 (10th Cir. 2002) ("Weibley's final argument-that he is actually innocent-fails because he does not make a colorable claim of actual innocence. Weibley makes only conclusory allegations regarding his innocence and provides no analysis or specific facts to warrant equitable tolling.”).
VII. SUMMARY
Under § 2244(d)(1)(A), Petitioner's conviction became final on October 22, 2021 and the one-year habeas limitations expired on October 24, 2022. Petitioner is not entitled to any statutory tolling for his Motion for Judicial Relief because it was filed after the expiration of the limitations period. Mr. Hostetter is not entitled to any equitable tolling because he has failed to demonstrate that he diligently pursued his habeas claims. Finally, Petitioner is not entitled to any period of tolling under the “actual innocence” exception based on his failure to present a colorable claim. Because Petitioner waited until June 5, 2023 to file his petition, the Court should dismiss it as untimely.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED as untimely.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by August 7, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10thCir. 2010).
IX. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.