Opinion
CIV-23-528-R
07-27-2023
RICKEY WHITE, Petitioner, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, et al., 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 David L. Russell 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 January 17-21, 1983, a jury trial was held in Choctaw County District Court and Petitioner was convicted of first-degree murder. (ECF No. 1-2:1). On February 8, 1983, the Choctaw County District Court sentenced Petitioner to life imprisonment. (ECF No. 11:1). On July 9, 1985, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. See ECF No. 1-2:1.
On May 4, 1988, March 20, 1989, and July 6, 1993, Petitioner filed three Applications for Post-Conviction Relief in the Choctaw County District Court, which the district court denied, and Petitioner failed to appeal. See Order Denying and Dismissing Petitioner's Application for Post-Conviction Relief; Motion for Appointment of Counsel; Motion for Evidentiary Hearing; Petition for Writ of Habeas Corpus Ad Testificandum; and Motion to Vacate the Case or Discharge the Case, White v. State of Oklahoma, Case No. CRF-1981-83 (Choctaw Co. Dist. Ct. Feb. 27, 2018). On March 10, 2008, Petitioner filed his fourth Application for Post-Conviction Relief in the Choctaw County Court which the district court denied. See id. Petitioner appealed and the OCCA declined jurisdiction. See State Court Docket Sheet, White v. State of Oklahoma, Case No. PC-2008-731 (Okla. Ct. Crim. App. Oct. 24, 2008). Petitioner then filed eight additional Applications for PostConviction Relief in the Choctaw County District Court, which the district court either denied or dismissed. See Order Affirming Denial of Post-Conviction Relief, White v. State of Oklahoma, Case No. PC-2022-887 (Okla. Ct. Crim. App. Oct. 18, 2022); State Court Docket Sheet, White v. State of Oklahoma, Case Nos. PC-2022-943 & PC-2023-125 (Okla. Ct. Crim. App.). The OCCA subsequently affirmed or dismissed Petitioner's appeals. See id. Mr. White filed the instant habeas Petition on June 12, 2023. (ECF No. 1).
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).
The latest dismissal from the OCCA was entered on May 19, 2023. See Order Declining Jurisdiction, White v. State of Oklahoma, Case No. PC-2023-125 (May 19, 2023).
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). Because Petitioner did not seek review in the United States Supreme Court, his conviction became final on October 7, 1985-90 days following the OCCA's July 9, 1985 affirmance of Mr. White's conviction. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, without tolling, Petitioner's statute of limitations to file a habeas petition expired on October 7, 1986. But Mr. White filed the Petition on June 12, 2023, nearly thirty-seven years after the limitations period had expired. (ECF No. 1:1). Thus, under § 2244(d)(1)(A), this action is untimely absent statutory or equitable tolling.
See ECF No. 1:3.
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). Here, Mr. White filed his first of twelve Applications for Post-Conviction Relief in the Choctaw County District Court on May 4, 1988. See supra. But Petitioner is not entitled to any period of tolling for the postconviction applications because they were filed after the AEDPA limitations period had already expired on October 7, 1986. 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 postconviction 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. White offers no argument in support of equitable tolling. See ECF No. 1. As a result, the Court should conclude that Petitioner is not entitled to equitable tolling.
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. Bel, 547 U.S. 518, 538 (2006). “[Prisoners 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. Bel 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).
Here, Mr. White 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
Mr. White's deadline for filing his habeas petition expired on October 7, 1986. See supra. But Mr. White filed the habeas Petition on June 12, 2023, nearly thirty-seven years after the limitations period had expired. Mr. White is not entitled to equitable tolling and the actual innocence exception does not apply.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court dismiss the Petition as untimely. Adoption of this recommendation will render any pending motions moot. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by August 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.