Opinion
CIV-21-572-D
11-02-2021
CHRISTOPHER THOMPSON, Petitioner, v. SCOTT CROW, [1] Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN JUDGE
Petitioner Christopher Thompson (“Petitioner”), a state prisoner proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Respondent filed a Motion to Dismiss and brief in support, arguing the Petition is time-barred. (Docs. 8, 9). Petitioner responded. (Doc. 10). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be dismissed with prejudice.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Factual and Procedural History
Petitioner is a state inmate incarcerated at the Lawton Correctional Center in Lawton, Oklahoma. (Doc. 1, at 1). On May 18, 2017, Petitioner was found guilty after a bench trial of first-degree burglary, concealing stolen property, and aggravated attempting to elude a police officer. (Id.); see also Oklahoma County District Court, Case No. CF-2014-7069. Petitioner was sentenced to 20 years of imprisonment on each count, to be served concurrently. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF -2014-7069 (Docket Sheet) (last visited Nov. 2, 2021). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. 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 appealed his conviction to the Oklahoma Court of Criminal Appeals (“OCCA”). (Doc. 1, at 2; Doc. 1, Ex. 1, at 26-32); see also OCCA, Case. No. F-2017-544. In his sole proposition of error, Petitioner claimed that he did not knowingly and voluntarily waive his right to a jury trial. (Id.) The OCCA affirmed Petitioner's conviction on July 26, 2018. (Id.) Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days later, on October 24, 2018. See Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F -2017-544 (Docket Sheet) (last visited Nov. 2, 2021).
On August 20, 2018, Petitioner filed a Pro Se Motion For Suspended Sentence in the state district court. (Doc. 9, Ex. 3); see also Oklahoma County District Court, Case No. CF-2014-7069 (see footnote 3, supra). The state district court denied Petitioner's Motion on December 3, 2018. (Doc. 9, Ex. 4) see also Oklahoma County District Court, Case No. CF-2014-7069 (see footnote 3, supra).
Petitioner made no further attempts to challenge his sentence until he filed a Motion For Judicial Review in the state district court on September 28, 2020. (Doc. 9, Ex. 5); see also Oklahoma County District Court, Case No. CF-2014-7069 (see footnote 3, supra). On November 9, 2020, Petitioner filed an Application for Post-Conviction Relief. (Doc. 1, at 3; Doc. 1, Ex. 1, at 7-16). Petitioner asserted three propositions of error in his application. (Id.) In his First Proposition, Petitioner claimed there was “insufficient evidence of elemental claim . . . to sustain the conviction of 1st degree burglary.” (Doc. 1, Ex. 1, at 9). In his Second Proposition, Petitioner claims “ineffective appellate counsel” for failure to raise the First Proposition claim on direct appeal. (Id. at 10). In his Third Proposition, Petitioner claims “ineffective trial counsel” for failure to raise the First Proposition claim in his original trial. (Id. at 11). His application was denied on January 6, 2021. (Doc. 1, at 3; Doc. 1, Ex. 1, at 33-37). Petitioner appealed the denial of his application to the OCCA, and the OCCA affirmed the denial on March 5, 2021. (Doc. 1, at 2; Doc. 1, Ex. 1, at 1-6, 40-43).
On March 30, 2021, Petitioner filed the instant Petition. (Doc. 1, at 15). Petitioner asserts three grounds as the basis for his Petition, which are identical to his three propositions of error in his state Application for Post-Conviction Relief. (Id. at 5-6, 8). For relief, Petitioner asks this court to “reverse conviction or vacate judgment & sentence or whatever else this Court deems appropriate.” (Id. at 14).
Petitioner certified that he placed his Petition in the prison mailing system on March 30, 2021. (Doc. 1, at 15). The envelope in which he mailed the Petition was postmarked June 2, and the Court Clerk received the Petition and filed it on June 4, 2021. (See Doc. 1, Ex. 1). The court gives Petitioner the benefit of the doubt that his certification date was accurate and that the prison mailing system experienced excessive delays beyond his control.
II. Analysis
A. AEDPA Established a One-Year Limitations Period.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.Id. AEDPA includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction 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. at § 2244(d)(2).
B. The Petition is Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[, ] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days after the OCCA affirmed his conviction, on October 24, 2018. See Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020). The one-year statute of limitations began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until October 25, 2019, to file his habeas petition. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day). However, the Petition in this matter was filed on March 30, 2021. See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). Thus, Petitioner's habeas action is untimely under § 2244(d)(1)(A).
Petitioner offers no explanation for his failure to meet the one-year statute of limitations. (Doc. 1, at 13).
C. Petitioner is Not Entitled to Statutory Tolling Under § 2244(d)(2).
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). Because Petitioner did not properly file any form post-conviction relief until September 28, 2020 - after the limitations period had already expired - those efforts did not result in tolling under § 2244(d)(2). See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[Petitioner's] state application [for post-conviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”).
Petitioner's August 20, 2018, pro se motion for suspended sentence similarly did not result in tolling under § 2244(d)(2) because it was improperly filed more than ten days after the OCCA affirmed his conviction on July 26, 2018. See Okla. Stat. tit. 22, § 994; Wilson v. Allbaugh, 2019 WL 4459330, at *3 (W.D. Okla. Apr. 24, 2019) (“Petitioner's next filing - his motion for suspended sentences - was untimely, and therefore does not entitle Petitioner to any statutory tolling.”) (internal citation omitted). Regardless, had it been properly filed, Petitioner's motion would not serve to adequately toll the limitations period, as it was denied by the state district court on December 3, 2018, nearly two years before Petitioner resumed his efforts to seek relief from his conviction.
D. Petitioner Has Not Demonstrated Actual Innocence.
Liberally construing his response to the Motion to Dismiss, Petitioner claims to be innocent of the crimes of which he was convicted. (Doc. 10, at 2-3). “[A] ‘credible showing of actual innocence' provides an outright equitable exception to AEDPA's statute of limitations.” Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 391-92 (2013) (holding that because petitioner did not diligently pursue his claims, he was not entitled to equitable tolling, and thus could only proceed with an equitable “exception” through “a plea of actual innocence”)). But “[t]o be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). And Petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
In his response to the Motion to Dismiss, Petitioner claims that he is innocent as he “was never identified as being a person who committed the alleged ‘elemental actions' of the crime alleged.” (Doc. 10, at 3). In support of his assertion, Petitioner offers the probable cause affidavit for his arrest. (Doc. 10, Ex. 1). But Petitioner does not assert that this evidence is “new” or “was not presented at trial.” Schlup, 513 U.S. at 324. Rather, it seems Petitioner disagrees with the interpretation of this evidence as support for his conviction. Because Petitioner has not adequately supported his allegation of actual innocence, there is no basis for bypassing the statute of limitations bar.
III. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the court grant Respondent's Motion to Dismiss (Doc. 8) and that the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice as untimely. Brown v. Roberts, 177 Fed.Appx. 774, 778 (10th Cir. 2006) (“Dismissal of a [§ 2254 habeas] petition as time barred operates as a dismissal with prejudice[.]”).
The court advises the parties of their right to object to this Report and Recommendation by November 23, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court advises the parties that failure to make timely objection to this report and recommendation waives their 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 the captioned matter.