Opinion
CIV-22-887-JD
06-14-2023
ARMAND P. BOURQUE, Petitioner, v. ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Pro se Petitioner Armand Bourque, an inmate currently incarcerated in the state of Texas, has filed this action under 28 U.S.C. § 2241, attacking a detainer allegedly placed against him by the State of Oklahoma. (ECF Nos. 1 & 17). United States District Judge Jodi W. Dishman has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Respondent has filed a Motion for Summary Judgment, arguing that the Petition was untimely filed, and Petitioner failed to exhaust his state court remedies. (ECF Nos. 16 & 17). The undersigned has examined the pleadings and recommends the Motion for Summary Judgment be GRANTED.
Mr. Bourque has filed a Petition for habeas relief under 28 U.S.C. § 2241, see ECF No. 1, and a “Motion to Dismiss Detainer,” see ECF No. 11. Both pleadings challenge the presence of a detainer and seek relief in the form of the detainer being removed. See ECF Nos. 1 & 17. Thus, the undersigned will consider both documents simultaneously in the analysis.
Based on the recommended dismissal on timeliness, the Court need not address Mr. O'Connor's alternate argument regarding Petitioner's failure to exhaust his state court remedies.
The Respondent filed a Motion to Dismiss and Brief in Support, but in doing so, relied on evidence outside the Petition. See ECF Nos. 16 & 17. As a result, the Court converted the motion to one for summary judgment. See ECF No. 18; see Fed.R.Civ.P. 12(d); see also Alloway v Jordan, 69 Fed.Appx. 431, 433 (10th Cir. 2003) (stating that when the movants requested dismissal on a habeas petition, the district court should have provided notice of conversion to a summary judgment motion and an opportunity to respond with opposing evidence prior to consideration of materials beyond the petition).
I. RELEVANT BACKGROUND/PETITIONER'S ALLEGATIONS
On November 15, 2004, in Oklahoma County District Court Case No. CF-2002-897, Mr. Bourque pled guilty to two counts of indecent or lewd acts with a child under the age of sixteen and was sentenced to 15 years' incarceration on each count. See ECF Nos. 1:2, 11:1, 11-2, 17-1:1, 17-3. At that time, Mr. Bourque was incarcerated in the State of Texas on other charges. See ECF No. 11:5-1. The Judgment and Sentence in the Oklahoma County case states: “These counts are to run concurrently each with the other and with the time now being served in the Texas Department of Corrections.” (ECF No. 11-2:1). In his habeas Petition, Mr. Bourque argues that although he has served the entirety of his Oklahoma sentence, the State of Oklahoma still has a detainer placed on him which is adversely affecting his current incarceration in the Texas Department of Corrections. In his sole ground for habeas relief, Mr. Bourque states:
A plea agreement was reached on November 15th 2004 of 15 years to run concurrent with the Texas time for Armand Paul Bourque in the
Oklahoma District Court under D. Fred Doak as Judge and a detainer on Armand Paul Bourque is still being held on record preventing academical and circumstantial restrictions against inmate Bourque. There is enough evidence to prove Mr. Bourque completed the time of 15 years running CC with his Texas time as of Nov. 15 2019.
(ECF No. 1:6-7).
II. STANDARD FOR SUMMARY JUDGMENT
Federal statutory law does not address the standard for summary judgment in habeas proceedings. Thus, the Federal Rules of Civil Procedure govern Respondent's motion. See Fed.R.Civ.P. 81(a)(4).
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is material 'if under the substantive law it is essential to the proper disposition of the claim.' ” Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016) (quoting Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if a rational trier of fact could find in favor of the nonmoving party on the evidence presented. See id.
“The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the movant meets its initial burden, “the burden then shifts to the nonmovant to set forth specific facts from which a rational trier of fact could find for the nonmovant.” Herrera, 506 F.3d at 1309 (citation omitted). When a respondent seeks summary judgment, the petitioner “must go beyond [his] pleadings and present some evidence in support of [his] claims.” Price-Cornelison v. Brooks, 524 F.3d 1103, 1109 (10th Cir. 2008). In doing so, Mr. Bourque must identify such facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id. Unsupported statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). In applying this standard, the Court “view[s] the evidence and draw[s] all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” At. RichfedCo. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted).
III. RESPONDENT IS ENTITLED TO SUMMARY JUDGMENT
Respondent has filed a Motion for Summary Judgment and Brief in Support, challenging the timeliness of Mr. Bourque's Petition. See ECF Nos. 16 & 17. The Court should grant the Motion.
A. 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 limitations period applies to a petition filed under 28 U.S.C. § 2241, such as that filed by Mr. Bourque. See Brownfield v. Roberts, 154 App'x 686 (10th Cir. 2005).
Respondent concedes that Mr. Bourque is “in custody” for purposes of federal habeas relief. See ECF No. 17:4, n. 4.
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). Here, because Mr. Bourque is challenging a detainer, rather than the underlying conviction, subsection (A) would not apply. Likewise, subsections (B) and (C) are inapplicable, because Mr. Bourque does not argue that “State action” prevented him from filing his Petition or that his claims rely on a newly recognized constitutional right. Instead, the Court should find that the limitations period is triggered by subsection (D) and begins on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” See supra; see Colburn v. Jones, 596 Fed.Appx. 721, 724 (10th Cir. 2014) (affirming district court's finding that subsection (D) provided the trigger date to calculate timeliness on a habeas petitioner's challenge to a detainer).
B. The Petition is Untimely Under 28 U.S.C. § 2244(d)(1)(D)
Mr. Bourque argues that upon completion of his Oklahoma sentence, the State of Oklahoma should have removed a detainer which was placed in Oklahoma County District Court case and which is now adversely affecting his incarceration in Texas. See supra. Utilizing 28 U.S.C. § 2244(d)(1)(D) as the trigger date to calculate the one-year limitations period, the pivotal question is: When did the factual predicate of Mr. Bourque's claim begin?
Mr. Bourque has presented evidence that as of June 22, 2022, the Oklahoma County detainer was “still active.” (ECF No. 11-4).
Respondent provides evidence of a letter dated September 23, 2015, written to the Oklahoma County Court Clerk, wherein Petitioner requests that “the County Court relinquish the detainer that was to run concurrent with the current time [he] [was] doing in the state of Texas.” (ECF No. 17-5). In that letter, Petitioner provides miscellaneous information about the case/detainer, stating that the judge in the case he was referring to was Judge Gray, his attorney was Al Hoch, and he was sentenced sometime between October and December of 2004. (ECF No. 17-5). This information comports with Oklahoma County District Court Case No. CF-2002-897, and the letter was filed in that case. See State Court Docket Sheet, State of Oklahoma v. Bourque, Case No. CF-2002-897 (Okla. Co. Dist. Ct. Sept. 29, 2015).
Respondent argues that this letter provides evidence that Mr. Bourque was aware of the detainer as of September 29, 2015, the date that the letter was filed in Mr. Bourque's criminal case. Consequently, Respondent argues that date triggered the one-year habeas limitations period under § 2244(d)(1)(D), with the deadline thereafter expiring on September 29, 2016. (ECF No. 17:7). The Court should conclude that through this evidence, Respondent has met his initial burden to demonstrate entitlement to judgment as a matter of law. As such, the burden shifted to Mr. Bourque to demonstrate the existence of a factual dispute regarding whether, indeed, he was on notice of the detainer at the time he wrote his 2015 letter.
In an Order dated February 15, 2023, the Court informed Mr. Bourque of his responsibility to respond to the Motion for Summary Judgment, with “counteraffidavits and/or documents to set forth specific facts showing that there is a genuine issue of material fact.” (ECF No. 18). Petitioner responded, stating: “The documents submitted with Habeas petition should serve enough evidence to resolve this conflict.” (ECF No. 19:1). Because Petitioner submitted no “documents” with his habeas Petition, the undersigned liberally construes this statement to encompass documents which Petitioner attached to ECF No. 11-Petitioner's “Motion to Dismiss Detainer.” See ECF No. 11. In this regard, the undersigned notes that Petitioner submitted:
• A handwritten cover sheet for the instant case;
• A copy of the Judgment and Sentence in Oklahoma County District Court Case No. CF-2002-897;
• A single page from what appears to be a docket sheet in the Oklahoma County case, with two entries dated November 15, 2004, reflecting the conviction in that case;
• A letter dated June 22, 2022, from Tony Peterson of the Texas Board of Criminal Justice, to the Oklahoma County Sheriff's Office, stating that his records indicated that the Oklahoma detainer was still active; and
• A record from the Texas Department of Criminal Justice dated October 12, 2022, noting that Petitioner has one active detainer on his record.
(ECF No. 11-1-11-5). However, none of these documents rebut Respondent's evidence which demonstrates that Petitioner was aware of the detainer when he filed the letter with the Oklahoma County Court Clerk's Office in September 2015. As such, the Court should conclude that the date of the letter-September 23, 2015-was “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence” under 28 U.S.C. § 2244(d)(1)(A)-(D). As a result, without tolling, the one-year limitations period to file his habeas petition would have expired on September 23, 2016.
C. Petitioner is not Entitled to Tolling or the “Actual Innocence” Exception to Render his Petition Timely
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). But a review of Mr. Bourque's state court case reveals that Petitioner never made any such filings. See State Court Docket Sheet, State of Oklahoma v. Bourque, Case No. CF-2002-897 (Okla. Co. Dist. Ct.).
In addition to statutory 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). However, Mr. Bourque has made no argument that he is entitled to any equitable tolling. See ECF Nos. 1, 11, 18.
Finally, 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. Bell, 547 U.S. 518, 538 (2006). “[P]risoners 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 536-37 (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, however, Mr. Bourque 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.
IV. SUMMARY
Under § 2244(d)(1)(D), Petitioner's one-year limitations period to file a habeas Petition challenging his Oklahoma County detainer expired September 23, 2016. See supra. Petitioner is not entitled to any form of statutory or equitable tolling, and the “actual innocence” exception does not apply. Because Petitioner waited until September 28, 2022 to file his Petition, the Court should conclude that it is untimely, and Respondent is entitled to Summary Judgment as a matter of law.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court GRANT Respondent's Motion to Dismiss based on the Petition's untimeliness.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 28, 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).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.