Opinion
CIV-20-1310-D
02-25-2022
GARY JAMES SMITH, Petitioner, v. RICK WHITTEN, 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). The Respondent has filed a Motion to Dismiss and Brief in Support, seeking dismissal based on untimeliness. (ECF Nos. 14 & 15). The Court should DENY the Motion to Dismiss.
I. RELEVANT PROCEDURAL BACKGROUND
On June 10, 2011, a jury convicted Petitioner of possession of a controlled dangerous substance in Beckham County Case No. CF-2010-51. (ECF No. 6:1-2). On August 5, 2011, the trial court sentenced Petitioner to 99 years of incarceration. (ECF Nos. 6:1; 15-1). Mr. Smith appealed, and on September 10, 2012, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. (ECF Nos. 6:2, 15-3). On September 17, 2012, Petitioner filed a Pro Se Motion for Suspended Sentence pursuant to 22 O.S. § 994. (ECF No. 15-4). From the state court docket sheet, it does not appear that the Beckham County District Court ever ruled on this motion, a point which Respondent concedes. See State Court Docket Sheet, State of Oklahoma v. Smith, Case No. CF-2010-51 (Beckham Co. Dist. Ct.); ECF No. 15:12.
See https://www.oscn.net/dockets/getcaseinformation.aspx?db=beckhamνmbercf-2010-00051&cmid=159732. 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”). Petitioner also pled guilty to a misdemeanor charge which is not the subject of the habeas Petition. See ECF No. 6:2.
II. 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). However, 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).
III. LAW REGARDING THE EFFECT OF A MOTION FOR SUSPENDED SENTENCE UNDER 22 O.S. § 994 ON THE HABEAS STATUTE OF LIMITATIONS
In Oklahoma, a motion for suspended sentence under § 994 is permitted:
After appeal, when any criminal conviction is affirmed, either in whole or in part, the court in which the defendant was originally convicted may suspend the judgment and sentence as otherwise provided by law. Jurisdiction for such suspension shall be vested in said trial court by a request by the defendant within ten (10) days of the final order of the Court of Criminal Appeals. Any order granting or denying suspension made under the provisions of this section is a nonappealable order.22 O.S. § 994.
Generally speaking, a Motion for Suspended Sentence under 22 O.S. § 994 serves to toll the statute of limitations under 28 U.S.C. § 2244(d)(2). See Wall v. Kholi, 562 U.S. 545, 547 (2011) (holding motion to reduce sentence under Rhode Island law was “collateral review” and tolled the AEDPA limitations period); Najera v. Murphy, 462 Fed.Appx. 827, 2012 WL 453649 (10th Cir. 2012) (holding that “[b]ased on the Supreme Court's broad definition of collateral review, a motion for reduction of sentence under Wyoming law tolls the statute of limitations under § 2244(d)(2)); see also Hackett v. Parker, No. 11-CV-322-GKF-TLW, 2012 WL 1029545, at *4 (N.D. Okla. Mar. 26, 2012) (unpublished) (holding that “motion for suspended sentence filed under Okla. Stat. tit. 22, § 994, qualifies as a motion for ‘collateral review' and serves to trigger tolling of the one-year limitations period.”); Clements v. Franklin, No. CIV-12-247-W, 2012 WL 2344430, at *3 (W.D. Okla. May 8, 2012) (same).
IV. RESPONDENT'S MOTION TO DISMISS
Respondent acknowledges that the Beckham County Court never ruled on the Section 994 motion. See supra. However, Mr. Whitten presents two arguments regarding why the motion would not serve to toll the habeas statute of limitations: (1) the motion is not considered “other collateral review” for tolling purposes under Section 2244 (d)(2) and (2) the Section 994 motion was not “properly filed.” (ECF No. 15:12-19). The Court should reject both arguments.
A. Petitioner's Section 994 Motion is Considered “Other Collateral Review” for Purposes of 28 U.S.C. § 2244(d)(2)
As stated, in Wall v. Kholi, 562 U.S. 545, 547 (2011), the United States Supreme Court held that a motion to reduce sentence under Rhode Island law was considered “collateral review” and tolled the AEDPA limitations period. See supra. And the Tenth Circuit Court of Appeals has applied Kholi to hold the same regarding a motion filed under 22 O.S. § 994. See supra. Respondent, however, argues that Section 994 “is more akin to the Florida rule at issue in Baker [v. McNeil, 439 Fed.Appx. 786 (11th Cir. 2011)] than the Rhode Island rule at issue in Wall, and this Court should find a motion under Section 994 is not one for ‘collateral review' which tolls the limitations period.” (ECF No. 15:15). However, in Najera v. Murphy, 462 Fed.Appx. at 830, the Tenth Circuit Court of Appeals rejected the respondent's reliance on Baker, stating:
The State attempts to distinguish Wall, arguing that, unlike under Rhode Island law, Mr. Najera's motion for sentence reduction under Wyo. R. Crim. P. 35(b) is a plea for mercy, not a motion to correct an illegal sentence (citing Baker v. McNeil, 439 Fed.Appx. 786 (11th Cir. 2011) (unpublished)). We are not persuaded. Based on the Supreme Court's broad definition of collateral review, a motion for reduction of sentence under Wyoming law tolls the statute of limitations under § 2244(d)(2). See Wall, 131 S.Ct. at 1286-87.Najera v. Murphy, 462 Fed.Appx. at 830. Accordingly, the Court should reject Respondent's reliance on Baker and conclude that under Wall, Mr. Smith's Section 994 motion constitutes “a properly filed application for . . . other collateral review with respect to the pertinent judgment or claim” for tolling purposes under 28 U.S.C. § 2244(d)(2).
B. Petitioner's Section 994 Motion was “Properly Filed” for Purposes of 28 U.S.C. § 2244(d)(2)
Next, Mr. Whitten argues that Petitioner's Section 994 motion was not “properly filed” for purposes of tolling the statute of limitations. See ECF No. 15:19-21. The Court should disagree.
As stated, Section 2244(d)(2) tolls the AEDPA limitations period “pending adjudication of a properly filed application for . . . other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2). The Supreme Court has held that “an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). See also Robinson v. Golder, 443 F.3d 718, 720 (10th Cir. 2006) (stating that an application is “properly filed” if it satisfies the state's requirements for filing such a pleading). The Tenth Circuit Court of Appeals has stated that a “properly filed” application complies with filing requirements including: “(1) the place and time of filing; (2) the payment or waiver of any required filing fees; (3) the obtaining of any necessary judicial authorizations that are conditions precedent to filing, such as satisfying any filing preconditions that may have been imposed on an abusive filer; and (4) other conditions precedent that the state may impose upon the filing of a post-conviction motion.” Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000).
According to Respondent, Mr. Smith's Section 994 motion was not “properly filed” for purposes of Section 2244(d)(2) because the Beckham County District had no authority to entertain Petitioner's Motion in the first instance. (ECF No. 15:18-19). According to Respondent, under Oklahoma law, district courts ordinarily are prohibited from imposing suspended sentences for “defendants being sentenced upon their third or subsequent to their third conviction of a felony” except “on written application of the district attorney.” (ECF No. 15:18) (citing 22 O.S. § 991a(C) (2011)). Respondent argues that because Mr. Smith had three prior felony convictions when he was sentenced in the underlying criminal case, see ECF No. 15-1, he was not eligible for a sentence reduction under Section 994 unless and upon a written waiver from the district attorney, which was not present in Petitioner's case. See ECF No. 15:18. As a result, Mr. Whitten argues that the Section 994 motion was not “properly filed” for purposes of Section 2244(d)(2). In support, Respondent relies on Knox v. Workman, 425 Fed.Appx. 781 (10th Cir. 2011), but the Court should conclude that Respondent's reliance on Knox is misplaced.
In Knox, the petitioner perfected his appeal in the OCCA from a state court conviction on October 2, 1997. Knox, 425 Fed.Appx. at 783. Thereafter, on October 28 and 29, 1997, the petitioner filed applications for post-conviction relief. Id. Because the appeal had been perfected in the OCCA, but not yet ruled on when the petitioner filed the applications for post-conviction relief, the Tenth Circuit Court of Appeals held: “The state district court had no jurisdiction to entertain these motions; they were therefore not ‘properly filed[]' [under Section 2244(d)(2)].”
Mr. Whitten argues that like the petitioner in Knox, Mr. Smith's Section 994 motion was not “properly filed” for purposes of Section 2244(d)(2) because Mr. Smith was not eligible for relief under Section 994 based on his prior convictions. (ECF No. 15:18). But in Knox, the Court concluded that the applications for post-conviction relief were not “properly filed” for purposes of Section 2244(d)(2) because they had been filed prior to the appeal having been perfected. See supra. But here, Mr. Smith waited until after the OCCA had affirmed the underlying state court conviction to file his Section 994 motion, unlike the petitioner in Knox. See supra (OCCA affirmed the conviction on September 10, 2012 and Petitioner filed the Section 994 motion on September 17, 2012).
Respondent attempts to equate ineligibility for relief under Section 994 with a finding that Petitioner failed to “properly file” said motion and find support for his position in Knox. The Court should disavow Respondent's reliance on Knox and conclude that Petitioner “properly filed” his Section 994 motion for purposes of Section 2244(d)(2).
C. Petitioner's Section 994 Motion Tolls the Statute of Limitations under 28 U.S.C. § 2244(d)(2)
For the reasons discussed, the Court should conclude that Mr. Smith's Section 994 motion, filed September 17, 2012, is considered a “properly filed application for . . . other collateral review” for purposes of 28 U.S.C. § 2244(d)(2). See supra. Because the motion was never ruled on, a point which Respondent concedes, the Court should conclude that Petitioner's habeas limitations period remains tolled. See Estes v. Crow, No. CIV-20-031-RAW-KEW, 2022 WL 301598, at *3 (E.D. Okla. Feb. 1, 2022) (tolling habeas statute of limitations under 28 U.S.C. § 2244(d)(2) based on petitioner's Section 994 motion that had not yet been ruled on). As a result, the Court should deny Respondent's Motion to Dismiss. See Hackett v. Parker, No. 11-CV-322-GKF-TLW, 2012 WL 1029545, at *4 (N.D. Okla. Mar. 26, 2012) (denying respondent's motion to dismiss based on untimeliness, stating that because “the record contains no ruling on the [Section 994] motion . . . the Court is unable to determine with any degree of accuracy the length of time the limitations period was tolled” and “[g]iven Respondent's inability to determine if and when the motion for suspended sentence was ruled on, the Court cannot determine whether the one year limitations period expired before Petitioner filed his [habeas] petition.”).
The Court notes, however, that Mr. Smith would not be entitled to statutory tolling for the time his motion was pending before his conviction became final. See Long v. Crow, No. CV-19-737-D, 2019 WL 5295554, at *2 (W.D. Okla. Sept. 19, 2019), report and recommendation adopted, No. CIV-19-737-D, 2019 WL 5295529 (W.D. Okla. Oct. 18, 2019) (when applications for collateral review are filed prior to a conviction becoming final, such applications have no tolling effect until the conviction becomes final).
D. Respondent's Remaining Arguments
Mr. Whitten also argues that Mr. Smith is not entitled to tolling based on various other state court filings, and that Petitioner is not entitled to equitable tolling or an equitable exception to the statute of limitations based on actual innocence. (ECF No. 15:19-27). But the Court need not consider these arguments in light of the recommendation to deny the motion to dismiss as discussed. See supra.
V. MISCELLANEOUS ISSUES
Based on various statements and actions made by Petitioner throughout these proceedings, it has been unclear to the Court regarding whether Mr. Smith had wanted to voluntarily dismiss his Petition. See ECF No. 29. Most recently, the Court ordered Petitioner, on or before February 14, 2022, to “plainly inform the Court whether he would like to voluntarily dismiss the habeas Petition or not.” (ECF No. 29:2). The Court also informed Mr. Smith that in responding to the order, he “shall not argue the merits of his underlying state court case-i.e.-his guilt or innocence on the charges which form the basis of his criminal conviction.” Id.
On February 16, 2022, Mr. Smith responded to the Order, stating that he did not want to dismiss the Petition, and further asking the Court to “grant petitioner a hold on the toll on the fedal [sic] Habus [sic] corpus.” (ECF No. 30:1). Mr. Smith then discussed various state court pleadings; a potential state court hearing; a commutation of his sentence; and the fact that he should have been resentenced pursuant to a change in the state law. See ECF No. 30:1. However, the undersigned has not considered Petitioner's extrapolations outside of his statement that he did not wish to voluntarily dismiss his Petition.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that Respondent's Motion to Dismiss (ECF No. 14) be DENIED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 11, 2022, 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).
VII. STATUS OF REFERRAL
This Report and Recommendation disposes of all issues and terminates the referral by the District Judge in this matter.