Opinion
CIV-22-545-R
09-23-2022
ROBERT LOUIS WIRTZ, JR., Petitioner, v. JIM FARRIS, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Robert Louis Wirtz, Jr. (“Petitioner”), a state prisoner appearing pro se,has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 14). For the reasons set forth below, the undersigned recommends that Petitioner's Petition for habeas relief be DISMISSED with prejudice.
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); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions 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 § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
II. Procedural History
A. Petitioner's Oklahoma County Sentence
Petitioner is a state inmate currently incarcerated at the Oklahoma State Penitentiary in McAlester, Oklahoma. (Doc. 1, at 1). On April 30, 2018, Petitioner entered pleas of guilty to four counts of Attempted Robbery in the First Degree (Counts 1-4); Robbery in the First Degree (Count 5); and Larceny of a Motor Vehicle (Count 6). (Id.); see also Oklahoma County District Court, Case No. CF-2017-7185. On the same date, the court sentenced Petitioner to 22 years of imprisonment on each count, to run concurrently, with all but the first 12 years suspended. (Id.) Petitioner neither sought to withdraw his guilty plea nor appealed his judgment or sentence. (Id. at 2-3).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF -2017-7185 (Docket Sheet) (last visited August 23, 2022). 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).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On April 11, 2019, Petitioner filed a Motion for Modification of Sentence. Oklahoma County District Court, Case No. CF-2017-7185 (see footnote 3). The Oklahoma County District Court denied Petitioner's Motion on April 30, 2019. Id.
On April 26, 2021, Petitioner filed a “Motion For Relief From Void Judgment and Sentence or Alternative Relief Because of Actual Innocence” before the Oklahoma County District Court. (Doc. 1, at Ex. 1, at 1-6). The state district court construed this filing as an Application for Post-Conviction Relief and denied the Application on June 3, 2021. (Id. at Ex. 1, at 7-10). On June 18, 2021, Petitioner filed a Motion for Rehearing of the denial of his Application. (Id. at Ex. 3, at 1-4). The state district court denied the Motion on July 30, 2021. (Id. at Ex. 3, at 15). Petitioner then appealed the denial of his Application to the Oklahoma Court of Criminal Appeals (“OCCA”). (Id. at Ex. 3, at 5-14); see also OCCA, Case No. PC-2021-772.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2021-772 (Docket Sheet) (last visited August 23, 2022).
The OCCA affirmed the denial of Petitioner's Application on September 16, 2021. (Doc. 1, at Ex. 2, at 13-16). The OCCA noted that “[w]ith the exception of his claim of actual factual innocence, consideration of Petitioner's claims for relief are waived because they could have been raised in a direct appeal.” (Id. at Ex. 2, at 14) (internal citations omitted). In addressing the merits of Petitioner's actual factual innocence claim, the OCCA found that
The “actual innocence” exception is applicable only to factual innocence, where a petitioner can make a colorable showing he is actually innocent of the crime for which he is convicted. Petitioner's assertions fail to meet this standard. Petitioner does not cite any controlling authority supporting relief and his claims are wholly unsupported by the record. Petitioner's claim of actual innocence is without merit.(Id. at Ex. 2, at 15) (internal citation omitted).
C. The Petition
On April 18, 2022, Petitioner filed the instant action, asserting four grounds for relief. (Doc. 1, at 5-11). In Ground One, Petitioner alleges that he is “actually innocent” of Count Five, Robbery in the First Degree, because the plea agreement “is wholly void of the violent element and [he] never admitted that [he] intentionally put anyone in fear of immediate serious bodily injury or used any firearm.” (Id. at 5). In Ground Two, Petitioner claims that “[t]he trial court was without jurisdiction to convert Petitioner's motion into an application for postconviction relief.” (Id. at 7). In Ground Three, Petitioner alleges that “[t]he judgment and sentence is void for lack of jurisdiction as to Count 5, Robbery in the First Degree.” (Id. at 8). In Ground Four, Petitioner claims that the “[r]ecord is wholly void of any advisement of the elements of robbery in the first degree.” (Id. at 10).
Petitioner certified that he placed his habeas petition in the mail to the court on April 18, 2022 (Doc. 1, at 15), which is the date the court deems it filed. 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)).
Petitioner claims that he raised Grounds One, Three, and Four before the state court in his Motion For Relief From Void Judgment, (id. at 6, 9, 10), and Ground Two in his Motion for Rehearing, (id. at 7-8). Regarding the timeliness of his Petition, Petitioner claims that “actual innocence is not subject to any bars.” (Id. at 13).
III. Analysis
A. Petitioner Did Not Timely File His Petition.
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).
1. 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)). Because Petitioner did not file a direct appeal, his conviction became final ten days after the trial court entered final judgment, so, on May 10, 2018. OCCA Rule 2.1(B). See also Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“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.”). 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 May 11, 2019, to file his habeas petition, absent any tolling event. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Petitioner's Motion for Modification of Sentence, filed April 11, 2019, and denied April 30, 2019, did not toll the one-year statute of limitations. See Phillips v. Addison, 448 Fed.Appx. 817, 819 (10th Cir. 2011) (“In several unpublished cases, we have held that a request for judicial review of a sentence under Okla. Stat. tit. 22, § 982a - a discretionary, non-appealable form of relief - does not toll the AEDPA limitations period.”) (citing Bohon v. Oklahoma, 313 Fed. App'x. 82, 84 n. 1 (10th Cir.2008) (unpublished); Nicholson v. Higgins, 147 Fed. App'x. 7, 8 n. 2 (10th Cir. 2005) (unpublished)).
Petitioner's next attempts to seek state post-conviction relief began on April 26, 2021, 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 postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”). Thus, Petitioner's habeas action, filed on April 18, 2022, is untimely under § 2244(d)(1)(A).
2. Petitioner Is Not Entitled to The Actual Innocence Exception.
Regarding the timeliness of his Petition, Petitioner claims that “actual innocence is not subject to any bars.” (Doc. 1, at 13). Indeed, a “credible showing of actual innocence” may bypass the limitations period bar. Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). But “[a] claim of actual innocence typically must be based on new evidence suggesting ‘factual innocence, not mere legal insufficiency.'” Griffin v. Scnurr, 640 Fed.Appx. 710, 721 (10th Cir. 2016) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). And “[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). 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).
Petitioner has presented no new evidence to support his claim of actual innocence. Rather, Petitioner claims that he is “actually innocent of robbery in the first degree” because his crime lacked the element of violence and “[he] never admitted that [he] intentionally put anyone in fear of immediate serious bodily injury or used any firearm.” (Doc. 1, at 5). Citing to his plea agreement, Plaintiff claims that because he merely “acted like [he] had a gun in [his] pocket” but did not possess an actual weapon during the robbery, his crime lacked the element of violence, and it therefore did not amount to Robbery in the First Degree. (Doc. 1, at Ex. 1, at 4-5). Plaintiff's argument thus amounts to one of “legal insufficiency” and is not based on “new evidence suggesting factual innocence.” Griffin, 640 Fed.Appx. at 721 (internal quotation omitted). Considering Petitioner's claims and the entire record in the most generous light, Petitioner has provided no new evidence to support his claims, and he has not shown that “in light of new evidence, no reasonable juror would find [him] guilty beyond a reasonable doubt,” failing to meet the “demanding” actualinnocence standard. Id. Thus, there is no basis for bypassing AEDPA's time-limit restrictions.
Petitioner does not allege and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding 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”) (citation omitted).
IV. Recommended Ruling and Notice of Right to Object
For the reasons discussed above, the court recommends that the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
The court advises Petitioner of his right to object to this Report and Recommendation by September 13, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises Petitioner that failure to make timely objection to this report and recommendation waives his 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.