Opinion
CIV-21-64-HE
06-08-2021
ALAN E. STRICKLAND, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner Alan E. Strickland, proceeding pro se, brings this action under 28 U.S.C. § 2254, seeking habeas corpus relief from his state conviction and sentence. Doc. 1.
United States District Judge Joe Heaton referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
An Oklahoma County jury convicted Petitioner of first-degree murder, No. CF-2015-7080, id. at 1, and sentenced him to a life term. Doc. 12, Ex. 1. Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed his conviction on July 12, 2018. Doc. 12, Ex. 2. Petitioner later filed an application for post-conviction relief on September 20, 2019. Doc. 12, Ex. 9 (application). The Oklahoma County District Court denied post-conviction relief, id. Ex. 10, and the OCCA affirmed on December 22, 2020, id. Ex. 13.
This Report and Recommendation cites court documents by their CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
This life term was to run consecutively with Petitioner's burglary- and forgery-related sentences in Nos. CF-12-6265, CF-12-5433, CF-12-244, and CF-11-4622. See Doc. 12, Ex. 1.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahomaνmb er=CF-2015-7080 (last visited May 19, 2021). The undersigned takes judicial notice of the docket report in Petitioner's state post-conviction proceeding. 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” (citation omitted)).
Petitioner filed this action on January 29, 2021. Doc. 1. Respondent moved to dismiss the action as time-barred by the statute of limitations, Doc. 11, and Petitioner responded, Doc. 13. For the reasons explained below, the undersigned recommends the Court grant Respondent's motion and dismiss the petition as untimely.
I. Discussion.
Petitioner brings three claims for relief. First, Petitioner claims he is actually innocent and was convicted despite various evidentiary deficiencies, including “the fact that the person the prosecution[']s eye witness described could not have been Petitioner, ” given physical differences between the witness's description and Petitioner's stature and other physical traits. Doc. 1, at 6-8. Second, Petitioner claims he received ineffective assistance of trial counsel, in violation of the Sixth Amendment, U.S. Const. amend. VI., id. at 11. Finally, Petitioner claims he received ineffective assistance of appellate counsel, also in violation of the Sixth Amendment. Id. at 16. The undersigned will not reach the merits of these claims because, as explained below, Petitioner's habeas petition was filed out of time.
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
The limitation period shall run 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.Id. The statute includes a tolling provision for properly filed post-conviction actions:
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 shall not be counted toward any period of limitation under this subsection.Id. § (d)(2). A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only if it satisfies the stringent equitable tolling standard applied to § 2244. Holland v. Florida, 560 U.S. 631, 645 (2010) (holding that “§ 2244(d) is subject to equitable tolling in appropriate cases”); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“AEDPA's one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.'”) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
B. Petitioner's deadline under 28 U.S.C. § 2244 to file for habeas relief.
Taking into account the statutory tolling while Petitioner's application for post-conviction relief was pending, Petitioner's deadline to file his § 2254 habeas petition was January 12, 2021. See 28 U.S.C. § 2244(d)(2) (statutory tolling provision pending post-conviction application).
1. Conviction finalized under 28 U.S.C. § 2244(d)(1)(A).
Unless a petitioner shows otherwise, the limitations period typically runs from the date the judgment becomes “final, ” as provided by § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “When the petitioner hasn't petitioned for certiorari with the Supreme Court, the one-year period begins to run ‘after the time for filing a petition for certiorari with the Supreme Court has passed.'” Collins v. Bear, 698 Fed.Appx. 946, 949 (10th Cir. 2017) (quoting Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)). Petitioner's conviction and sentence became final on October 10, 2018, ninety days after the Oklahoma Court of Criminal Appeals affirmed them. See Id. at 948 (holding the petitioner's convictions became final ninety days after the OCCA affirmed his convictions).
The one-year limitations period begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” wherein “‘the day of the act . . . from which the designated period of time begins to run shall not be included'” (quoting Fed.R.Civ.P. 6(a))). Therefore, Petitioner's statutory year to file a habeas petition began on October 11, 2018, and, absent tolling, expired one year later on October 11, 2019.
As explained below, the statute of limitations was tolled while Petitioner's application for post-conviction relief was pending.
2. Statutory tolling.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. See 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). An application for post-conviction relief in state court “‘remains pending' ‘until the application has achieved final resolution through the State's postconviction procedures, '” that is, when the “State's highest court has issued its mandate or denied review.” Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).
Petitioner filed his application for post-conviction relief in the Oklahoma County District Court on September 20, 2019. This was twenty-one days before Petitioner's statutory year to file a habeas petition was set to expire, on October 11, 2019. And at that point, the § 2244 limitations period was tolled. The state district court denied Petitioner's post-conviction application, and the OCCA affirmed on December 22, 2020. Once the OCCA affirmed, the § 2244 limitations period began to run again and expired twenty-one days later. See Lawrence, 549 U.S. at 332. Therefore, to be timely filed, Petitioner's application for habeas corpus relief was due by January 12, 2021, that is, within twenty-one days of the OCCA's decision. Petitioner did not file his habeas petition until January 29, 2021, seventeen days after the expiration of the § 2244 limitations period, adjusted for statutory tolling.
C. Petitioner is not entitled to equitable tolling of § 2244 limitations period.
Even though Petitioner filed his habeas petition after the § 2244 limitations period had lapsed, he argues the Court should nevertheless consider the petition timely filed under equitable tolling principles. Doc. 13. “[A] [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011).
As Petitioner points out, the correctional facility where he was housed “went through several housing unit quarantines prior to and at the time” the OCCA affirmed the denial of his application for post-conviction relief on December 22, 2020. Doc. 13, at 1. He did not receive his copy of the OCCA order until January 2, 2021, at which time his unit was in lockdown. Id. Therefore, he calculated that the limitations period did not expire until twenty-one days after he received the OCCA mandate-not twenty-one days after the mandate issued, see Lawrence, 549 U.S. at 332. After receiving the OCCA order, he notified the law library of his impending deadline and was granted library access on January 5, 2021. Doc. 13, at 2.
The one-year period of limitation “is subject to equitable tolling . . . only in rare and exceptional circumstances.” Gibson, 232 F.3d at 808 (citation omitted). And Petitioner must “demonstrate[] that the failure to timely file was caused by extraordinary circumstances beyond his control.” See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
Even assuming Petitioner diligently pursued his rights, such extraordinary circumstances do not exist here. “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.” Phares v. Jones, 470 Fed.Appx. 718, 719 (10th Cir. 2012). 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. 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), and Sandoval v. Jones, 447 Fed.Appx. 1, 4 (10th Cir. 2011)). “Access to the law is merely a ‘means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'” Winston, 743 Fed.Appx. at 258-59 (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)) (additional internal quotations omitted). Temporary deprivation of access to the law does not automatically warrant equitable tolling. Id.; see also Donald v. Pruitt, No. 20-1435, 2021 WL 1526421, at *3 (10th Cir. Apr. 19, 2021) (holding petitioner was “not entitled to equitable tolling based on his allegedly limited access to the law library in the wake of COVID-19, ” and collecting cases). Indeed, after lockdown was lifted, Petitioner was granted library access seven days before his filing deadline. See Doc. 13, at 2.
The undersigned therefore finds Petitioner is not entitled to equitable tolling of the § 2244 limitations period, and his habeas petition was untimely filed.
II. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court GRANT Respondents motion to dismiss Petitioner's petition for habeas relief as untimely filed under 28 U.S.C. § 2244(d)(1)(D).
The undersigned advises Petitioner that he may file an objection to this Report and Recommendation with the Clerk of Court on or before June 29, 2021. The undersigned further advises Petitioner that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.