Opinion
CIV-21-245-R
10-20-2021
CHARLES E. FRIERSON, JR., Petitioner, v. JIM FARRIS, 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). The Respondent has filed a Motion to Dismiss and Brief in Support. (ECF Nos. 14 & 15). Petitioner has filed a response. (ECF No. 16). The Court should GRANT the Motion to Dismiss.
I. PROCEDURAL BACKGROUND
On January 11, 2017, following a jury trial in Oklahoma County District Court No. CF-2015-2124, Petitioner was convicted on three drug charges and one charge of possessing a firearm during the commission of a felony. (ECF Nos. 1:1-2, 15-1:1). On August 30, 2018, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. (ECF Nos. 1:2, 15-1). On September 17, 2018, Petitioner filed a Pro Se Motion for Suspended Sentence pursuant to 22 O.S. § 994. (ECF No. 15-2). On October 11 & 30, 2019, in the Oklahoma County District Court, Petitioner filed an Application for Post-Conviction Relief and an Amended/Supplement Application for Post-Conviction Relief, respectively. (ECF Nos. 1:3, 4, 15-3, 15-6). On October 18, 2019, the State moved to strike the October 11 pleading because Petitioner, without permission, had exceeded the page limit for motions, in violation of Rule 37(B) of the applicable court rules. (ECF No. 15-4). On November 5, 2019, the district court granted the State's motion. (ECF Nos. 15-4, 15-7).
On January 29, 2020, the State moved to strike the October 30 Application for Post-Conviction Relief based on, once again, Petitioner's violation of Rule 37(B). (ECF No. 15-9). The Court never ruled on this motion. On February 11, 2020, Mr. Frierson filed an Amended/Supplement Application for Post-Conviction Relief, which the Oklahoma County District Court denied on September 15, 2020. (ECF Nos. 1:4, 15-11, 15-14). On January 22, 2021, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial of post-conviction relief. (ECF No. 1:4, 15-19).
Mr. Frierson filed the instant habeas petition on March 22, 2021. (ECF No. 1). Respondent has filed a Motion to Dismiss and Brief in Support, arguing that the Petition is untimely. (ECF Nos. 14 & 15). Mr. Frierson has filed a Response. (ECF No. 16).
II. 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).
Because Petitioner did not seek review in the United States Supreme Court, his conviction became final on November 28, 2018-90 days following the OCCA's August 30, 2018 affirmance of Mr. Frierson's conviction. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). The statute of limitations began to run the following day, November 29, 2018, and without tolling, Petitioner's statute of limitations to file a habeas petition expired one year later, on November 29, 2019. But Mr. Frierson filed the Petition on March 22, 2021, nearly sixteen months after the limitations period had expired. (ECF No. 1). Thus, under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
III. 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). Three pleadings are relevant in this context-Petitioner's September 17, 2018, Motion for Suspended Sentence, and Mr. Frierson's post-conviction applications filed on October 11 & 30, 2019. The Court should conclude that none of these pleadings entitle Petitioner to tolling under § 2244(d)(2).
First, before the limitations period had begun, Mr. Frierson filed a Motion for Suspended Sentence under 22 O.S. § 994. See supra. Generally speaking, a motion under § 994 would serve to toll the statute of limitations under § 2244(d)(2). See Wall v. Kholi, 562 U.S. 545, 547 (2011) (holding motion to reduce sentence under Rhode Island law was “collateral review” and tolled the AEDPA limitations period); Najera v. Murphy, 462 Fed.Appx. 827, 2012 WL 453649 (10th Cir. 2012) (holding “[b]ased on the Supreme Court's broad definition of collateral review, a motion for reduction of sentence under Wyoming law tolls the statute of limitations under § 2244(d)(2).”). And in circumstances similar to Petitioner's, where the motion was filed before the limitations period began under § 2244(d)(1)(A), this Court has held that the limitations period would not begin until the motion had been ruled on. See Clements v. Franklin, No. CIV-12-247-W, 2012 WL 2344430, at *3-4 (W.D. Okla. May 8, 2012), adopted, Clements v. Franklin, No. CIV-12-247-W, 2012 WL 2358564, (W.D. Okla. June 20, 2012).
In this case, it does not appear that the § 994 Motion was ever ruled on. However, tolling under § 2244(d)(2) for the § 994 motion would only be relevant if the motion had been “properly filed.” See supra. To satisfy the “properly filed” requirement of 28 U.S.C. § 2244(d)(2), a petitioner must comply with state procedural requirements. See Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000). Here, Oklahoma law is clear:
After appeal, when any criminal conviction is affirmed, either in whole or in part, the court in which the defendant was originally convicted may suspend the judgment and sentence as otherwise provided by law. Jurisdiction for such suspension shall be vested in said trial court by a request by the defendant within ten (10) days of the final order of the Court of Criminal Appeals.22 O.S. § 994. Because the OCCA affirmed Petitioner's conviction on August 30, 2018, Mr. Frierson had until September 10, 2018 to file his Motion for Suspended Sentence. However, because Petitioner did not file his § 994 motion until September 17, 2018, it was not “properly filed” and, therefore, did not serve to toll the limitations period under § 2244(d)(2). See Wilson v. Allbaugh, 2019 WL 4459330, at *3 (W.D. Okla. Apr. 24, 2019) (“Petitioner's next filing - his motion for suspended sentences - was untimely, and therefore does not entitle Petitioner to any statutory tolling.” (internal citation omitted)).
Because the tenth day fell on Sunday, September 9, 2018, Petitioner had until the following Monday, September 10, 2018, to file his Motion to Suspend Sentence. See 12 O.S. § 2006.
The Court should likewise conclude that neither the October 11, nor the October 30, 2019 post-conviction applications serve to toll the limitations period under § 2244(d)(2), because neither pleading was “properly filed.”
Rule 37(B) of the Official Court Rules of the Seventh Judicial and Twenty-Sixth Administrative Districts, Comprised of Oklahoma and Canadian Counties provides:
All motions, applications and responses thereto, including briefs, ... shall not exceed twenty (20) pages in length, excluding exhibits, without prior permission of the assigned judge. Reply briefs shall be limited to five (5)
pages in length. Page limitations herein exclude only the cover, index, appendix, signature line and accompanying information identifying attorneys and parties, and certificate of service. No. further briefs shall be filed without prior permission of the assigned judge.
Both the October 11 and October 30, 2019 post-conviction applications exceeded twenty pages in length, in violation of Rule 37(B). See ECF Nos. 15-3, 15-6. Indeed, on November 5, 2019, the Oklahoma County District Court reached this conclusion concluded the same with regards to the October 11 pleading. See ECF No. 15-7. As a result, the Court should conclude that neither application was “properly filed, ” for purposes of tolling under § 2244(d)(2). In response to the Motion to Dismiss, Mr. Frierson argues that his October 30 pleading was in compliance with Rule 37(B) and the Oklahoma County District Court neither ruled on his October 30 post-conviction application, nor struck it as exceeding the page limit, as it had with regards to the October 11 pleading. (ECF No. 16:5). Petitioner's arguments are unavailing.
First, it is clear that the October 30, 2019 pleading did violate Rule 37(B), as it was 22 pages in length. See ECF No. 15-6. Second, although Petitioner is correct regarding the status of the October 30 pleading, the District Court's failure to rule on the application is immaterial, because after filing the defective pleading, Petitioner still had approximately 1 month left in the limitations period to “properly file” an Application for Post-Conviction Relief. See Ramirez v. Allbaugh, 771 Fed.Appx. 458, 465 (10th Cir. 2019) (“[T]he fact that the [Oklahoma County District Court] took nearly nine months to rule on [the petitioner's] Overlength [Application for Post-Conviction Relief] may have been a circumstance beyond [the petitioner's] control, but it did not prevent or prohibit him from filing an [Application for Post-Conviction Relief] that complied with the page limitation prior to the expiration of the federal habeas limitations period.”). Simply put, neither the October 11 nor the October 30, 2019 post-conviction applications were “properly filed” under state law, and thus, neither pleading served to toll the habeas limitations period. See Loftis v. Chrisman, 812 F.3d 1268, 1272 (10th Cir. 2016) (concluding that a post-conviction appeal deemed untimely “did not statutorily toll the federal limitations period”). Although Mr. Frierson ultimately “properly filed” an Application for Post-Conviction Relief on February 11, 2020, he is not entitled to any period of tolling for that pleading because it was filed after the AEDPA limitations period had already expired on November 29, 2019. 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 post-conviction relief filed in state court after the limitations period has expired no longer serves to toll it.”). Accordingly, unless equitable tolling is applicable, the § 2254 claim is untimely.
IV. EQUITABLE TOLLING
The AEDPA limitations period may be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 634 (2010). Mr. Frierson is “entitled to equitable tolling 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.” Id. at 649 (internal quotation marks omitted). “The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (citations omitted). Extraordinary circumstances that could warrant equitable tolling include “when an adversary's conduct-or other uncontrollable circumstances-prevents a prisoner from timely filing.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Mr. Frierson “bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
Liberally construed, Petitioner argues that he is entitled to equitable tolling based on three circumstances: (1) being beaten by multiple inmates which resulted in a period of hospitalization, (2) being transferred to a different facility and placed in segregation, and (3) limited access to a law library. (ECF No. 16:6). The Court should conclude that these arguments do not entitle Petitioner to any equitable tolling.
First, Mr. Frierson states that on March 19, 2019, he was beaten and stabbed while asleep, which resulted in “weeks of hospitalization” and blindness in his left eye. (ECF No. 16:6). Although Petitioner provides no specific details regarding his recovery period, he does state that he was transferred to a different facility on April 4, 2019. (ECF No. 16:6). Arguably, this event could be considered an “extraordinary circumstance” worthy of a period of equitable tolling. See, e.g., McKnight v. Oklahoma, 2013 WL 5726039, at *1 (W.D. Okla. Oct. 21, 2013) (allowing equitable tolling for period of time petitioner had been beaten, resulting in surgery, and a period of recovery). But Petitioner also has to prove that he had been pursuing his rights diligently, see supra, and he cannot. In a section of his response titled “Due Diligence history, ” Mr. Frierson notes the OCCA's August 30, 2018 affirmance of the conviction, and then next notes the March 19, 2019 beating/stabbing. (ECF No.16:6). But between the two events, Petitioner does not indicate that he had acted diligently in pursuit of the habeas claim he now asserts. See ECF No. 16:6. Based on the lack of diligence, the Court should conclude that this event does not warrant tolling.
Next, Mr. Frierson states: “April 4, 2019 Petitioner was transferred to James Crabtree Correctional Center where I was placed in segregation upon arrival to the institution due to safety concerns. Being detained in segregation beyond my will I was deprived any and all property including legal materials.” (ECF No. 16:6). But Mr. Frierson does not allege, with any specificity, the steps he took while in administrative segregation to attempt to diligently pursue his habeas claims. The Tenth Circuit Court of Appeals has stated: “[S]olitary confinement, on its own, is not enough to justify equitable tolling. Although confinement in administrative segregation may qualify as an extraordinary circumstance beyond [a prisoner's] control, . . . equitable tolling is justified only where the prisoner has shown that despite his segregated confinement, he diligently pursued his habeas claims and his confinement prevented him from filing on time.” Stovall v. Chaptelain, 660 Fed.Appx. 674, 677 (10th Cir. 2016) (internal citation omitted).
Finally, Petitioner states that on May 22, 2019, he was transferred to a different facility “where he was allotted law library access once a month with A court deadline.” (ECF No. 16:6). But “insufficient access to relevant law . . . is not enough to support equitable tolling.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
In sum, the Court should conclude that Mr. Frierson is not entitled to any period of equitable tolling.
V. 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. 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, Mr. Frierson has alleged “factual innocence” based on his sole ground for habeas relief-insufficient evidence to support the conviction. (ECF No. 16:9). However, in doing so, Petitioner 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.
VI. SUMMARY
Petitioner is not entitled to any tolling and the actual innocence exception does not apply. Petitioner's filing deadline expired December 16, 2019. Because Mr. Frierson waited until March 22, 2021 to file the Petition, the Court should conclude that it is untimely.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court GRANT the Motion to Dismiss (ECF No. 14).
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 8, 2021, 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).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.