Opinion
CIV-23-1135-HE
01-25-2024
PATRICK RODRIGUEZ, Petitioner, v. CARRIE BRIDGES,[1] 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. 1). 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 Court either: (1) dismiss the petition as untimely with prejudice, or (2) abstain from adjudicating the Petition under the Younger abstention doctrine, and dismiss the Petition without prejudice.
I. PROCEDURAL BACKGROUND
On July 10, 2018, in Comanche County District Court Case No. CF-2017-376, Petitioner entered a plea of guilty to one count of first-degree rape and was sentenced to 30 years incarceration, with the first ten years suspended. See State Court Docket Sheet, State of Oklahoma v. Rodriguez, Case No. CF-2017-376 (Comanche Co. Dist. Ct. July 10, 2018). Mr. Rodriguez did not seek to withdraw the plea, and thus failed to perfect a direct appeal. See York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003).
See 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”).
Mr. Rodriguez stated that he filed an appeal, see ECF No. 1:3, but a review of the Oklahoma Court of Criminal Appeals' docket sheets via OSCN.net reveals otherwise.
Petitioner sought no other review in state court until he filed an Application for Post-Conviction Relief in the Comanche County District Court on August 15, 2023. See State Court Docket Sheet, State of Oklahoma v. Rodriguez, Case No. CF-2017-376 (Comanche Co. Dist. Ct. Aug. 15, 2023). On September 12, 2023, the Comanche County District Court denied the application and the Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial on November 8, 2023. See State Court Docket Sheet, State of Oklahoma v. Rodriguez, Case No. CF-2017-376 (Comanche Co. Dist. Ct. Sept. 12, 2023); State Court Docket Sheet, Rodriguez v. State of Oklahoma, Case No. PC-2023-778 (Okla. Ct. Crim. App. Nov. 8, 2023).
On September 29 and October 2, 2023, Petitioner filed a second post-conviction application and an amendment, which the Comanche County District Court denied on October 18, 2023. See State Court Docket Sheet, State of Oklahoma v. Rodriguez, Case No. CF-2017-376 (Comanche Co. Dist. Ct. Oct. 18, 2023). A review of OSCN.net reveals that Petitioner's appeal of this denial is currently pending in the OCCA. See State Court Docket Sheet, Rodriguez v. State of Oklahoma, Case No. PC-2023-1003 (Okla. Ct. Crim. App.).
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). Here, the undersigned will calculate the limitations period under both subsections (A) and (D).
IV. FINALITY OF THE CONVICTION- 28 U.S.C. § 2244(D)(1)(A)
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. Rodriguez did not appeal from his plea, his conviction became final ten days following sentencing, on July 20, 2018. See supra. Thus, without tolling, Petitioner's one-year statute of limitations to file a habeas petition expired on July 22, 2019. But Mr. Rodriguez filed the habeas petition on December 13, 2023, over four years after the limitations period had expired. (ECF No. 1). Thus, absent any statutory or equitable tolling or other exception, the action is untimely.
Because the one-year limitations period fell on Saturday, July 20, 2019, Mr. Rodriguez had until the following Monday, July 22, 2019 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).
V. 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). Here, Mr. Rodriguez filed the first of two Applications for Post-Conviction Relief in the Comanche County District Court on August 15, 2023. See supra. But Petitioner is not entitled to any period of tolling for either post-conviction application because they were each filed after the AEDPA limitations period had already expired on July 22, 2019. 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 another exception applies, the Petition is untimely.
VI. SECTION 2244(d)(1)(D)/ACTUAL INNOCENCE
In the section on “timeliness” in his habeas petition, Mr. Rodriguez states: “Im [sic] within the time frame because the Brady evidence is newly discovered in August 2023.” (ECF No. 1:14). Elsewhere, as grounds for relief, Mr. Rodriguez argues that “The State suppressed evidence in violation of Brady vs Maryland.” (ECF No. 1:6). By means of explanation, Petitioner states that following a hearing in August 2023 for DNA testing, he learned that “the victim was separated from her Brother prior to [him] being arrested. The Brother and Sister were having sex with each other. This was exculpatory but the State did not turn it over.” (ECF No. 1:6).
The undersigned liberally construes this argument to assert timeliness under 28 U.S.C. § 2244(d)(1)(D) and the “actual innocence” exception. Section 2244(d)(1)(D) starts the one-year limitations period on “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)(D). Likewise, “[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) (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)).
Under Section 2244(d)(1)(D), Mr. Rodriguez avers that his limitations period began approximately “August 2023” when he learned of the allegedly withheld evidence following a hearing in state court for DNA testing. See supra. But the limitation period under § 2244(d)(1)(D) begins on the date that a reasonably diligent petitioner could have discovered the factual basis of his or her claims, not the date that a particular petitioner first discovers the legal basis of his or her claims. Stiltner v. Nunn, Case No. 21-CV-0374-GKF-CDL, 2022 WL 951997, at *5 (N.D. Okla. Mar. 29, 2022). Through due diligence, Mr. Rodriguez could have discovered the factual basis for his claim (that the victim was having sex with her brother) well before he allegedly learned of this fact in open court. “If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.” Worthen v. Kaiser, 952 F.2d 1266, 1269 (10th Cir. 1992) (emphasis added). Under this theory, the Court should reject any argument that Section 2244(d)(1)(D) or the “actual innocence” exception applies to salvage the filing of the habeas Petition.
Alternatively, however, if the Court determines that Mr. Rodriguez should benefit from the application of Section 2244(d)(1)(D) or the “actual innocence” exception, then the Court should abstain from addressing the habeas Petition pursuant to Younger v. Harris, 401 U.S. 37 (1971).
In Younger, the United States Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are: (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; see Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). “[T]he district court must abstain once the conditions are met, absent extraordinary circumstances.” Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotation omitted). And, “Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (citations omitted). Exceptions exist for “bad faith or harassment,” prosecution under a statute that is “‘flagrantly and patently'” unconstitutional, or other “extraordinary circumstances” involving irreparable injury. Younger, 401 U.S. at 46-55 (citation omitted); Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). If the Court finds that Mr. Rodriguez is entitled to benefit from Section 2244(d)(1)(D) or the “actual innocence” exception, abstention is appropriate.
First, Petitioner has a post-conviction appeal currently pending in the OCCA that presents the same ground as asserted in the instant habeas Petition related to his claim of innocence based on an alleged Brady violation. See Petition in Error, Rodriguez v. State of Oklahoma, Case No. PC-23-1003 (Okla. Ct. Crim. App. Dec. 13, 2023). Thus, Petitioner's criminal case is “ongoing” under Younger, See Carbajal v. Hotsenpille, 524 Fed.Appx. 425, 428 (10th Cir. 2013) (holding that the plaintiff's pending application for post-conviction relief satisfied Younger's first condition that state criminal proceedings be “ongoing”).
Second, Petitioner does not make any allegations regarding the inadequacy of the state forum. The third Younger requirement is met since "[f]or the purposes of Younger, state criminal proceedings are viewed as 'a traditional area of state concern.' ” Winn v. Coo, 945 F.3d 1253, 1258 (10th Cir. 2019); see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (holding that injunction against state criminal enforcement activities "seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger”); Green v. Whetse, 166 Fed.Appx. 375, 376 (10th Cir. 2006) ("Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings in the state's courts.”) (internal quotations omitted).
Finally, Petitioner does not allege any bad faith, harassment, or other extraordinary circumstances. In sum, if the Court determines that Section 2244(d)(1)(D) applies, Younger requires the Court to abstain while Petitioner's Application for Post-Conviction Relief is pending in state court, and Petitioner has not met the heavy burden to show otherwise. See Carbaja, 524 Fed.Appx. at 428-29 (affirming the district court's dismissal under Younger where the plaintiff's claims were the subject of a still-pending application for post-conviction relief in state court).
Thus, if the Court determines that Mr. Rodriguez is entitled to benefit from Section 2244(d)(1)(D) or the “actual innocence” exception based on his alleged Brady claim, the Court should abstain from adjudicating his habeas petition and dismiss the same, without prejudice. Although Mr. Rodriguez' petition is untimely otherwise, see supra, a favorable adjudication of this claim in state court would allow him to timely present the claim in a habeas petition through the application of Section 2244(d)(1)(D) following the conclusion of such proceedings.
VII. 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).
Aside from the aforementioned theory, Mr. Rodriguez offers no argument which could be construed as a plea for equitable tolling-nowhere does Petitioner argue that some extraordinary circumstance stood in his way and prevented timely filing. See ECF No. 1. Thus, the Court should conclude that Petitioner is not entitled to equitable tolling.
VIII. SUMMARY
Mr. Rodriguez' deadline for filing his habeas petition expired on July 22, 2019. See supra. But Mr. Rodriguez filed the habeas Petition on December 13, 2023, over four years after the limitations period had expired. Although Petitioner is not entitled to statutory or equitable tolling, the Court may conclude that Petitioner has adequately invoked Section 2244(d)(1)(D) and/or the “actual innocence” exception which could salvage his claim. If so, the Court should abstain from adjudicating the habeas Petition under Younger, and dismiss the Petition without prejudice. See supra. If, however, the Court does not find that Mr. Rodriguez is entitled to benefit from either provision, the Court should conclude that the Petition is untimely and dismiss it with prejudice.
IX. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court dismiss the petition as untimely, or, alternatively, abstain from adjudicating the Petition under the Younger abstention doctrine.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by February 13, 2024, 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).
X. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.