Opinion
CIV-22-879-SLP
06-02-2023
WENDELL MONTRELL HAYES, Petitioner, v. JOSEPH NORWOOD, Respondent.[1]
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. United States District Judge Scott L. Palk 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 Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be DISMISSED on filing as untimely.
I. PROCEDURAL BACKGROUND
On December 7, 2000, an Oklahoma County District Court jury convicted Petitioner of first-degree murder and conspiracy to commit a felony-robbery with a firearm. See ECF No. 1:1; see also State Court Docket Sheet, State of Oklahoma v. Hayes, Case No. CF-1999-5510. (Okla. Co. Dist. Ct. Dec. 7, 2000). On June 19, 2001, following Petitioner's notice of intent to appeal the conviction, the Oklahoma Court of Criminal Appeals (OCCA) dismissed Mr. Hayes' appeal as untimely, for failure to file a petition-in-error. See ECF No. 1:2; see also Hayes v. State of Oklahoma, Case No. F-2001-1607 (Okla. Ct. Crim. App. June 16, 2001). On February 2, 2022, Petitioner filed an Application for PostConviction Relief to file an appeal out of time in the Oklahoma County District Court. See State Court Docket Sheet, State of Oklahoma v. Hayes, Case No. CF-1999-5510 (Okla. Co. Dist. Ct. Feb. 2, 2022). The district court denied the application on May 26, 2022. See State Court Docket Sheet, State of Oklahoma v. Hayes, Case No. CF-1999-5510 (Okla. Co. Dist. Ct. May 26, 2022). Petitioner appealed, and on October 14, 2022, the OCCA affirmed the district court. (ECF No. 1-1). Mr. Hayes filed the instant habeas Petition on October 6, 2022. (ECF No. 1).
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).
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. Additionally, “district 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, No. 06-2195, 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).
III. 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). Here, because Mr. Hayes specifically invokes § 2244(d)(1)(D), the undersigned will calculate the limitations period under both subsections (A) and (D). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (noting that unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final-subsection (A)).
See ECF No. 1:14.
IV. FINALITY OF THE CONVICTION- 28 U.S.C. § 2244(d)(1)(A)
Judgment and Sentence in Mr. Hayes' case was pronounced on December 7, 2000. See State Court Docket Sheet, State of Oklahoma v. Hayes, Case No. CF-1999-5510. (Okla. Co. Dist. Ct. Dec. 7, 2000). Pursuant to the OCCA Rules, Petitioner had 90 days- or until March 7, 2000-to file a petition-in-error for his direct appeal. See OCCA Rule 2.1(C). Because Petitioner did not meet this deadline, his conviction became final, for purposes of 28 U.S.C. § 2244(d)(1)(A) on this date. Thus, the one year habeas limitations clock began the following day, on March 8, 2000. See Harris v. Dinwiddie, 642 F.3d 903, 906 n.6 (10th Cir. 2011) (calculating the first day of the § 2254 filing window as the day after the conviction becomes final). Accordingly, without tolling, Petitioner's statute of limitations to file a habeas petition expired on March 8, 2000. But Mr. Hayes filed the instant Petition on October 6, 2022, over 22 years after the limitations period had expired. (ECF No. 1). Thus, under § 2244(d)(1)(A) this action is untimely.
Mr. Hayes' failure to appeal to the OCCA prevented him from receiving an extra 90 days in which to seek certiorari review from the United States Supreme Court. See 28 U.S.C. § 1257(a) ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari”) (emphasis added); Jones v Patton, 619 F. App'x. 676, 679 (10th Cir. 2015) (noting that because the petitioner did not timely appeal his conviction, he was not entitled to file a petition for certiorari in the United States Supreme Court and his conviction became final, for purposes of 28 U.S.C. § 2244(d)(1)(A), on the day of his appeal deadline).
Although Mr. Hayes also invokes Section 2244(d)(1)(D), this section will be analyzed below in conjunction with equitable tolling. See infra.
V. 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). Here, Mr. Hayes filed an Application for Post-Conviction Relief seeking an appeal out of time in the Oklahoma County District Court on February 2, 2022. See supra. But Petitioner is not entitled to any period of tolling for the post-conviction application because it was filed after the AEDPA limitations period had already expired on March 8, 2000. 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, or another exception applies, the Petition is untimely.
VI. EQUITABLE TOLLING/SECTION 2244(D)(1)(d)
In the section on “timeliness” in his habeas petition, Mr. Hayes states: “[I] was just made aware that I didn't receive an Appeal in my case on January of 2022 and that's when my 1 year [habeas] limitations started under 28 U.S.C. § 2244(d)(1)(D)[.]” (ECF No. 1:14). Elsewhere, Mr. Hayes argues that his attorney essentially abandoned him on direct appeal, having failed to file a petition-in-error in state court on his behalf. (ECF No. 1:6-8). The undersigned considers these arguments in tandem, as both § 2244(d)(1)(D) and equitable tolling require due diligence on the part of Mr. Hayes. See 28. U.S.C. § 2244(d)(1)(D) (allowing the one-year habeas limitations period to commence “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”); Holland v. Florida, 560 U.S. 631, 653 (2010) (noting that equitable tolling is only available when the petitioner has been diligent in the pursuit of his habeas claims). The Court should conclude that the lack of due diligence by Petitioner is fatal to his claim.
As stated, Mr. Hayes believed his attorney was filing his direct appeal following his December 7, 2000 conviction. See supra. According to Petitioner, he only realized that the attorney had not filed his direct appeal in January of 2022-approximately 21 years later. To be sure, Mr. Hayes filed an Application for Post-Conviction Appeal out of Time in February 2022, after he found out that an appeal had not been filed. See supra. But a 21-year gap with no action on the part of Mr. Hayes does not qualify as “due diligence” for purposes of Section 2244(D)(1)(d) or equitable tolling. See Hicks v. Kaiser, 203 F.3d 835, 2000 WL 27694, at *2 (10th Cir. 2000); (holding that the attorney's alleged “abandonment” of the petitioner, in the ten days following entry of a guilty plea, did not result in equitable tolling because petitioner's delay of over two years in seeking state court relief reflected a lack of diligence); White v. Mullin, 2010 WL 5620407, Westlaw op. at *3 (W.D. Okla. Dec. 23, 2010) (holding that an attorney's alleged “abandonment” after entry of a guilty plea did not merit equitable tolling because the petitioner's wait of “over 500 days” prior to filing post-conviction application did not reflect diligence); adopted, 2011 WL 196939 (Jan. 19, 2011), affirmed, White v. Mullin, 424 Fed.Appx. 774, 775 (10th Cir. 2011); Trujillo v. Tapia, 359 Fed.Appx. 952, 954, 2010 WL 93125, at *2 (10th Cir. 2010) (finding that a petitioner failed to demonstrate diligence because although he claimed he did not know when his appeal was denied and thus did not know when his habeas limitations period started, he gave “no indication that he ever inquired with the state courts about the status of his appeal[.]”); Harvey v. Addison, 2010 WL 1078399, Westlaw op. at *3 (W.D. Okla. Feb. 9, 2010) (holding that the attorney's alleged “abandonment” after entry of a guilty plea did not merit equitable tolling because the petitioner's wait of almost three years to file an application for post-conviction relief did not reflect diligence), adopted, 2010 WL 1078395 (W.D. Okla. Mar. 18, 2010), appeal dismissed, 2010 WL 3245320 (10th Cir. 2010) As a result, the Court should conclude that Petitioner is neither entitled to invoke Section 2244(D)(1)(d), nor is he entitled to any period of equitable tolling.
VII. 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. Bel 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. Hayes 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.
VIII. SUMMARY
As discussed, Mr. Hayes' deadline for filing his habeas petition expired March 8, 2000. Mr. Hayes is not entitled to statutory or equitable tolling and the actual innocence exception does not apply. But because Petitioner waited until October 6, 2022 to file his Petition, dismissal is appropriate.
IX. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED as untimely.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by January 9, 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).
X. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.