Opinion
CIV-22-902-D
01-20-2023
JAMES ROBERT BLANCHARD, Petitioner, v. STATE OF OKLAHOMA 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. (ECF Nos. 1 & 10). Because the claims raised challenge the revocation of a prior suspended sentence, rather than the validity of Petitioner's underlying conviction, the Court should construe the Amended Petition (ECF No. 10) under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254. Chief United States District Judge Timothy D. DeGiusti 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 Amended Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be summarily DISMISSED.
Although it is difficult to discern the precise nature of Mr. Blanchard's claims, see ECF No. 10, on page one of the Amended Petition, he clearly states that he is challenging the “conviction” dated June 25, 2021, which is the date of the revocation. See ECF No. 10:1; see also Court Minute, State of Oklahoma v. Blanchard, Case No. CF-2020-204 (Garfield Co. Dist. Ct. June 25, 2021); 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); Leatherwood v Albaugh, 861 F.3d 1034, 1041 (10th Cir. 2017) (“A state prisoner's challenge to the revocation of a suspended sentence is properly brought under § 2241.”).
The district court “may apply any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
I. PROCEDURAL BACKGROUND
On May 14, 2021, Petitioner entered a plea of nolo contendere in Garfield County District Court Case No. CF-2020-204 and was sentenced to 20 years imprisonment, all suspended. See ECF No. 10:1; see also Judgment and Sentence, State of Oklahoma v. Blanchard, Case No. CF-2020-204 (Garfield Co. Dist. Ct. May 28, 2021). On June 25, 2021, 10 years of the suspended sentence was revoked, with Mr. Blanchard being sentenced to 10 years imprisonment. See ECF No. 10:1; see also Court Minute, State of Oklahoma v. Blanchard, Case No. CF-2020-204 (Garfield Co. Dist. Ct. June 25, 2021).
Mr. Blanchard did not directly appeal the revocation order, but instead Petitioner filed an Application for Post-Conviction Relief in the Garfield County District Court on January 21, 2022. See ECF No. 10:3; Blanchard v. State of Oklahoma, Case No. CF-2020-204 (Garfield Co. Dist. Ct. Jan. 21, 2022). On January 24, 2022, the district court denied the application, and Mr. Blanchard had twenty days from that date to file an appeal. See Order Denying Motion for Post-Conviction Relief, State of Oklahoma v. Blanchard, Case No. CF-2020-204 (Garfield Co. Dist. Ct. Jan. 24, 2020); Oklahoma Court of Criminal Appeals (OCCA) Rule 5.2(C). Petitioner did not meet the appeal deadline, but did file a Petition for an Appeal out of Time on July 13, 2022. See Appeal out of Time, Blanchard v. Oklahoma Appeal Garfield County Court House, Case No. PC-2022-622 (Okla. Ct. Crim. App. July 13, 2022). On July 27, 2022, the OCCA dismissed the appeal as untimely. See Order Dismissing Application for Post-Conviction Appeal out of Time, Blanchard v. State of Oklahoma, Case No. PC-2022-622 (Okla. Ct. Crim. App. July 27, 2022). Mr. Blanchard filed the instant habeas Petition on September 29, 2022, and filed an Amended Petition on November 9, 2022. See ECF Nos. 1 & 10.
Because Mr. Blanchard's Amended Petition raises the same claims he asserted in the original Petition, the Court deems the Amended Petition filed on September 29, 2022, under the relation-back doctrine. Fed.R.Civ.P. 15(c)(1)(B); Mayle v Felix, 545 U.S. 644, 664 (2005); Baker v. Breslin, No. 21-CV-0126-GKF-CDL, 2022 WL 1251305, at *3 (N.D. Okla. Apr. 27, 2022).
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. The district court may apply any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
III. DISMISSAL OF THE PETITION
Because Mr. Blanchard waited until after the expiration of the applicable limitations period, the Court should dismiss the Amended Petition on grounds of untimeliness.
A. The Court's Sua Sponte Consideration of Timeliness
“[D]istrict 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, 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). The initial review of the Amended Petition shows that the habeas petition is untimely filed, and on this basis, should be dismissed.
B. AEDPA'S Statute of Limitations
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).
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). Under the Oklahoma Rules, Mr. Blanchard had ten days from the date of the revocation to file an appeal. See Rules 2.1 and 2.5, Rules of Oklahoma Court of Criminal Appeals; Burnham v. State, 43 P.3d 387, 390 (Okla. Crim. App. 2002); Klein v. Franklin, 437 Fed.Appx. 681, 684 (10th Cir. 2011). Since Mr. Blanchard did not appeal the June 29, 2021 revocation order, the order became final ten days later, on July 9, 2021. Thus, without tolling, Petitioner's statute of limitations to file the habeas Petition would have been one year later, on July 11, 2022. But Petitioner filed the habeas Petition on September 29, 2022, over two months after the limitations period had expired. See ECF Nos. 1 & 10; see supra. Thus, under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
See supra.
Because the one-year limitations period fell on Saturday, July 9, 2022, the Petitioner had until the following Monday, July 11, 2022, to file his habeas petition. See Fed. R. Civ. P 6(a)(1)(C); Alexander v. Zavaras, 424 Fed.Appx. 738, 740, n. 1 (10th Cir. 2011).
C. Statutory Tolling
The AEDPA limitations period is tolled while a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. See 28 U.S.C. § 2244(d)(2). On January 21, 2022, Mr. Blanchard filed an Application for Post-Conviction Relief in the Garfield County District Court. See supra. As a result, the one-year limitations period was stopped on January 21, 2022, with 169 days left in the filing period. The Garfield County District Court denied the Application on January 24, 2022, and although Mr. Blanchard did not appeal the district court's order, he is entitled to an additional 20 days of tolling for the period of time in which he could have filed an appeal, with the statute of limitations clock resuming on February 14, 2022. See Gibson v. Klnger, 232 F.3d 799, 803 (10th Cir. 2000) (stating that "the limitations period was tolled for the thirty days during which [habeas petitioner] could have filed an appeal of the state court's denial of his application for post-conviction relief.”). With 169 days remaining at this time, the limitations period for Mr. Blanchard to file his habeas petition expired on August 2, 2022. But as stated, Mr. Blanchard did not file the Petition until September 29, 2022, nearly two months later. See ECF No. 1; see supra.
Accordingly, unless equitable tolling applies, the petition is untimely.
D. 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).
Liberally construed, Mr. Blanchard contends that he is entitled to equitable tolling because his trial counsel had essentially “abandoned” him during the ten-day direct appeal period following the revocation order. (ECF No. 10:2, 3, 10, 11, 13). Attorney abandonment, if true, can suffice to establish “extraordinary circumstances beyond [a petitioner's] control.” Maples v. Thomas, 565 U.S. 266, 283 (2012) (citation omitted). However, Mr. Blanchard waited nearly seven months following the date of the final revocation order to present this issue to the Garfield County District Court in his Application for Post-Conviction Relief. See Application for Post-Conviction Relief, Blanchard v. State of Oklahoma, Case No. CF-2020-204 (Garfield Co. Dist. Ct. Jan. 21, 2022). Thus, the Court should conclude that Petitioner has failed to show that he diligently pursued the “abandonment” claim in state court and he is not entitled to equitable tolling. See Washington v. Dowling, 793 Fed.Appx. 667, 2019 WL 5406234, at *1-*3 (10th Cir. 2019) (petitioner's argument that trial counsel had abandoned him during the ten-day appeal period following entry of a guilty plea was not sufficient to invoke equitable tolling because petitioner had waited nearly ten months to raise the issue in state court, which demonstrated a lack of diligence).
Mr. Blanchard has neither proven that any “extraordinary circumstances” existed nor has he satisfied his burden to prove that he otherwise entitled to equitable tolling.
E. 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. Bell, 547 U.S. at 53637 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accordMcQuiggin 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. Blanchard 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.
F. Summary
With the statutory tolling, Mr. Blanchard's deadline for filing his habeas petition expired August 2, 2022. Mr. Blanchard is not entitled to equitable tolling and the actual innocence exception does not apply. Because Petitioner waited until September 29, 2022 to file this action, dismissal is appropriate.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court DISMISS the Amended Petition (ECF No. 10).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by December 27, 2022 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are 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).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.