Opinion
CIV-23-949-HE
11-27-2023
TIMOTHY MCHUGH, Petitioner, v. CHRISTE QUICK, 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. United States District Judge Joe Heaton 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
On July 13, 2020, in Jefferson County District Court Case No. CF-2018-19, Petitioner pled guilty to one count of trafficking in illegal drugs and one count of child abuse/neglect. On July 20, 2020, Judgment and Sentence was entered accordingly. (ECF No. 1:1); Judgment and Sentence, State of Oklahoma v. McHugh, Case No. CF-2018-19 (Jeff. Co. Dist. Ct. July 20, 2020). A review of OSCN.net reveals that Petitioner did not file an appeal. On June 7, 2021, Petitioner filed a Pro Se Motion for Judicial Review for Sentence Modification pursuant to 22 O.S. § 991a in the Jefferson County District Court. See Pro Se Motion for Judicial Review Sentence Modification, State of Oklahoma v. McHugh, Case No. CF-2019-18 (Jeff. Co. Dist. Ct. June 7, 2021). The Jefferson County District Court denied the motion on June 16, 2021. See Order Declining to Consider Mortification of Sentence, State of Oklahoma v. McHugh, Case No. CF-2019-18 (Jeff. Co. Dist. Ct. June 16, 2021).
See State of Oklahoma v. McHugh, Case No. CF-2018-19 (Jeff. Co. Dist. Ct. July 13, 2020);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”) (citation omitted).
On October 12, 2021, Petitioner moved to Amend the Judgment and Sentence Nunc Pro Tunc to reflect the sentences to run concurrently, because the Judgment and Sentence was silent as to the issue. Motion for Order to Amend Judgment and Sentence Nunc Pro Tunc, State of Oklahoma v. McHugh, Case No. CF-2019-18 (Jeff. Co. Dist. Ct. Oct. 12, 2021). Following Petitioner's motion, the State filed a formal application to amend the Judgment and Sentence and the District Court entered a Nunc Pro Tunc Judgment and Sentence on November 8, 2021. Nunc Pro Tunc Judgment and Sentence, State of Oklahoma v. McHugh, Case No. CF-2019-18 (Jeff. Co. Dist. Ct. Nov. 8, 2021).
On December 16, 2022, in the Jefferson County District Court, Petitioner filed an Application for Post-Conviction Relief seeking an appeal out of time. Application for Post Conviction Relief Request for Recommendation of Appeal out of Time, State of Oklahoma v. McHugh, Case No. CF-2019-18 (Jeff. Co. Dist. Ct. Dec. 16, 2022). On June 8, 2023, the Jefferson County District Court denied the Application and Mr. McHugh filed an appeal in Oklahoma Court of Criminal Appeals (OCCA). See ECF No. 1-2; Petition in Error, McHugh v. State of Oklahoma, Case No. PC-2023-594 (Okla. Ct. Crim. App. July 17, 2023). On July 24, 2023, the OCCA declined jurisdiction, based on Petitioner's untimeliness in perfecting the appeal. See ECF No. 1-1. Mr. McHugh filed the instant habeas Petition on October 18, 2023. (ECF No. 1).
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. McHugh did not appeal from his plea, his conviction became final ten days following sentencing, on July 30, 2020.Thus, without tolling, Petitioner's one-year habeas statute of limitations to file a habeas petition expired on July 30, 2021. Petitioner filed the habeas petition on October 18, 2023, over two years after the limitations period had expired. (ECF No. 1).
Although the Jefferson County District Court entered a Nunc Pro Tunc Judgment and Sentence on November 8, 2021, see supra, the original date of sentencing (July 20, 2020) furnishes the predicate of Mr. McHugh's habeas claims for purposes of calculating the date when his conviction became “final,” not the amended/Nunc Pro Tunc Judgment and Sentence, because it only clarified how his sentences were to be served. See Williams v. Beck, 115 Fed.Appx. 32, 33, 2004 WL 2491764, at *1 (10th Cir. 2004); Vaughn v. Woody, 2018 WL 4345283, at *3 (W.D. Okla. July 17, 2018), adopted, 2018 WL 4344474 (W.D. Okla. Sept. 11, 2018) (“[T]he Court should conclude that the August 8, 2013 Amended Nunc Pro Tunc Order entered in response to Plaintiff's Motion Requesting an Amended Judgment and Sentence was not part of the direct appeal review process for purposes of the AEDPA. In addition, the Order did not change Petitioner's original Judgment and Sentence, rather it clarified how the sentences were to be carried out. . . . Finally, the [nunc proc tunc] order had no bearing on Petitioner's habeas claims, rather the factual predicate of the claims stemmed from the original judgment and sentence. Accordingly, the Court should reject [the petitioner's] claim that his sentence became final [the date that the nunc pro tunc order was entered].”)
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 June 7, 2021, with 53 days left to file his habeas Petition, Mr. McHugh filed a Pro Se Motion for Judicial Review for Sentence Modification pursuant to 22 O.S. § 991a in the Jefferson County District Court. See Pro Se Motion for Judicial Review Sentence Modification, State of Oklahoma v. McHugh, Case No. CF-2019-18 (Jeff. Co. Dist. Ct. June 7, 2021). On June 16, 2021, the Jefferson County District Court denied the Motion. See Order Declining to Consider Modification of Sentence, State of Oklahoma v. McHugh, Case No. CF-2018-19 (Jeff. Co. Dist. Ct. June 16, 2021).
Whether statutory tolling is implicated by motions for judicial review under Oklahoma law is an unresolved issue in the Tenth Circuit. See Randall v. AHbaugh, 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 was pending and noting the issue is unresolved in the Tenth Circuit). Assuming, without deciding, that Mr. McHugh's motion qualifies as a “properly filed . . . application for . . . other collateral review,” he is entitled to tolling for the period in which the motion was under review. See supra. Because the Jefferson County District Court denied the motion on June 16, 2021, the 53 days remaining on the one-year habeas clock began again on the following day, June 17, 2021, and ended on August 9, 2021.
On October 12, 2021, Petitioner moved to Amend the Judgment and Sentence Nunc Pro Tunc and on December 16, 2022, Petitioner filed an Application for PostConviction Relief seeking an appeal out of time. See supra. But Petitioner is not entitled to any period of tolling for either the motion to amend or the post-conviction application, because they were each filed after the AEDPA limitations period had already expired on August 9, 2021. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 Fed.Appx. 727, 729 (10th Cir. 2006) (“[A] petition for post-conviction relief filed in state court after the limitations period has expired no longer serves to toll it.”). Accordingly, unless equitable tolling or another exception applies, the Petition 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). Mr. McHugh has made no arguments that he is entitled to equitable tolling, therefore the Court should conclude that equitable tolling does not apply.
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 53637 (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).
Regarding this exception, Mr. McHugh states: “Actual Innocence tolls the Statute of Limitations.” (ECF Np. 1:14). But Petitioner has made no allegation that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to the same. As a result, the Court should conclude that the “actual innocence” exception does not apply.
VII. SUMMARY
Under § 2244(d)(1)(A), Petitioner's conviction became final on July 30, 2021 and, with statutory tolling, the one-year habeas limitations expired on August 9, 2021. Mr. McHugh is not entitled to any equitable tolling because he has failed to demonstrate, with specificity, why he was prevented from filing a timely petition. Finally, Petitioner is not entitled to any period of tolling under the “actual innocence” exception. Because Petitioner waited until October 18, 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 December 14, 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 (10th Cir. 2010).
IX. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED.