Berryhill v. Jones

Full title: LAVERN BERRYHILL, Petitioner, v. JUSTIN JONES, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Date published: Jul 26, 2012

Case No. CIV-11-1513-W (W.D. Okla. Jul. 26, 2012)

Opinion

Case No. CIV-11-1513-W

07-26-2012

LAVERN BERRYHILL, Petitioner, v. JUSTIN JONES, Respondent.

Robert E. Bacharach

Report and Recommendation:

Supplemental Habeas Petition

Mr. Lavern Berryhill filed a habeas petition and a "supplemental petition." The undersigned has previously addressed the Respondent's dispositive motion, which related to the original petition. Mr. Berryhill's supplemental claims should be summarily dismissed on grounds involving expiration of the limitations period.¹

1 See Rules 1(b), 4, Rules Governing Section 2254 Cases in the United States District Courts.

The Court can sua sponte address the statute of limitations when the habeas petition reflects a time-bar.²

2 See Day v. McDonough, 547 U.S. 198, 209 (2006) ("we hold that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition").

In the supplemental petition, Mr. Berryhill asserts two claims. The first involves a lack of evidence for misconduct convictions involving an assault in 1997 and an attempt to escape at an unidentified point in time. The second claim involves a misconduct conviction in 2001 for a threat to kill the prison warden.

A one-year period of limitations exists,³ and it ordinarily begins when the conviction became final.⁴ However, the limitations period could not begin to run until the factual predicate became reasonably discoverable.⁵ Mr. Berryhill obviously knew in 1997 that he had been assaulted and in 2001 that he had been convicted in disciplinary proceedings for a threat to kill the warden. He does not say when he had experienced the disciplinary conviction for attempted escape. But that obviously took place by 2001 because he claims to have written the warden at that time about removal of the conviction from his record. Thus, the Petitioner has alleged facts in the supplemental petition that would have made the factual predicates for the two new claims reasonably discoverable by 2001. Nonetheless, Mr. Berryhill waited until 2011 to begin the present action.⁶ The ten-year delay should result in summary dismissal of the two supplemental claims because they are untimely as a matter of law.

3 See 28 U.S.C. § 2244(d)(1) (2006); see also Dulworth v. Evans, 442 F.3d 1265, 1267-68 (10th Cir. 2006) (holding that the one-year limitations period under 28 U.S.C. § 2244(d)(1) applies to habeas actions challenging administrative decisions under 28 U.S.C. § 2241).

4 See 28 U.S.C. § 2244(d)(1)(A) (2006).

5 See 28 U.S.C. § 2244(d)(1)(D) (2006).

6 The Court can assume arguendo that the two supplemental claims relate back to the date of the original habeas petition. See Fed. R. Civ. P. 15(c)(1).

Mr. Berryhill is advised of his right to object to this report and recommendation by August 13, 2012.⁷ If he does object, he must file a written objection with the Court Clerk for the United States District Court, Western District of Oklahoma.⁸ The Petitioner is further advised that if he does not timely object, he would waive his right to appellate review over the suggested ruling.⁹

7 See 28 U.S.C. § 636(b)(1) (2006); Fed. R. Civ. P. 6(a)(1)(C), 6(d), 72(b)(2).

8 See Haney v. Addison, 175 F.3d 1217, 1220 n.3 (10th Cir. 1999) (recommending inclusion in the body of a magistrate judge's report a notice that timely objections should be filed with the clerk of the district court).

9 See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

The referral is not discharged.

_______________

Robert E. Bacharach

United States Magistrate Judge