Opinion
Case No. CIV-05-1384-C.
February 24, 2006
REPORT AND RECOMMENDATION
In this habeas corpus action filed pursuant to 28 U.S.C. § 2254, Petitioner, Jesus Mendoza, appearing pro se, challenges his state court conviction in Case No. CF-03-259, District Court of Custer County, State of Oklahoma. Respondent has not addressed the merits of the Petition, instead contending the Petition is time barred pursuant to 28 U.S.C. § 2244(d)(1)(A) and moving for dismissal of the Petition [Doc. ##11-12]. Petitioner has responded to the motion [Doc. #16] and the matter is now at issue. For the reasons set forth below, it is recommended that Respondent's motion be granted and the Petition be dismissed as untimely pursuant to 28 U.S.C. § 2244(d).
Analysis
With the enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which took effect on April 24, 1996, Congress "established a one-year period of limitations for habeas petitions." Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) ( citing 28 U.S.C. § 2244(d)(1)). The one-year limitations period generally begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); accord Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000); Hoggro 150 F.3d at 1225. The one-year limitations period is tolled, however, for "[t]he time during which a properly filed application for State post-conviction relief . . . is pending," see 28 U.S.C. § 2244(d)(2), and may in rare and exceptional circumstances "be subject to equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Petitioner was convicted in Case No. CF-03-259 pursuant to a guilty plea on December 9, 2003, for distribution of a controlled dangerous substance, unlawful possession of a controlled dangerous substance, unlawful possession of drug paraphernalia and cultivation of a controlled dangerous substance. See Petition [Doc. # 1], ¶¶ 1-3, 6. Petitioner did not attempt to withdraw his plea within the ten-day period provided by Oklahoma law. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18 App. (2001) (to appeal from a conviction on a plea of guilty or nolo contendere the defendant must file an application to withdraw the plea within ten days from the date of the pronouncement of the judgment and sentence). Therefore, Petitioner's conviction became final on December 19, 2003, ten days after the pronouncement of his judgment and sentence. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (petitioner's guilty plea convictions were not appealed and, therefore, became final ten days after entry of the judgment and sentence) ( citing Okla. Stat. tit. 22, § 1051; Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals)).
Petitioner had until December 19, 2004, within which to timely file a federal habeas petition. See 28 U.S.C. § 2244(d); see also United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003) (holding that one-year limitation period under § 2244(d)(1) expires on anniversary date of the triggering event). The instant action, filed on November 28, 2005, is untimely pursuant to § 2244(d)(1)(A), absent statutory or equitable tolling.
Statutory Tolling
The AEDPA includes a tolling provision, 28 U.S.C. § 2244(d)(2), which provides that the one-year limitation period is tolled during the time that a properly filed application for state post-conviction relief is pending. Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000). See also Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999) (the time tolled includes all periods during which a prisoner is attempting to exhaust state post-conviction remedies). Petitioner first sought post-conviction relief on July 15, 2005. See Respondent's Brief, Exhibit 1, Docket for Case No. CF-03-259 at 4. The application for post-conviction relief was filed after the expiration of the limitations period. Therefore, statutory tolling is not available to Petitioner. See, e.g., Fisher v. Gibson, 262 F.3d at 1142-43 ("Fisher's petitions cannot be tolled for time spent in state post-conviction proceedings because his applications for post-conviction relief were not filed until after April 24, 1997, the end of the limitations period for convictions, like Fisher's, which became final before the effective date of AEDPA."); Urias v. Lucero, No. 01-2352, 2003 WL 359448 (10th Cir. Feb. 19, 2003) (unpublished op.) ("Statutory tolling under § 2244(d)(2) was unavailable to [petitioner] because he did not engage in state post-conviction proceedings until expiration of the limitations period."). Section 2244(d)(2) therefore does not operate to render the Petition timely filed.
This and all other unpublished opinions referenced in this Report are cited for their persuasive value in accordance with 10th Cir. R. 36.3(B).
Petitioner contends the limitations period was statutorily tolled during the pendency of two separately filed motions for sentence modification. The first motion was filed on May 25, 2004, and denied nine days later on June 3, 2004. The second motion was filed on October 15, 2004, and although the docket sheet does not reflect whether the motion was ruled upon, see Respondent's Brief, Exhibit 1 at 4, the district court's August 2, 2005 order denying Petitioner's application for post-conviction relief states the motion was denied. See Post-Conviction Findings, attached to Petition.
The motions for sentence modification were filed pursuant to Okla. Stat. tit. 22, § 982a. That statute provides in relevant part:
Any time within twelve (12) months after a sentence is imposed or within twelve (12) months after probation has been revoked, the court imposing sentence or revocation of probation may modify such sentence or revocation by directing that another penalty be imposed, if the court is satisfied that the best interests of the public will not be jeopardized. This section shall not apply to convicted felons who have been in confinement in any state prison system for any previous felony conviction during the ten-year period preceding the date that the sentence this section applies to was imposed.
Okla. Stat. tit. 22, § 982a(A) (2001).
The Tenth Circuit has held that Oklahoma's sentence modification procedure is not part of the direct review process under Oklahoma law. See Williams v. Beck, 115 Fed. Appx. 32, 33 (10th Cir. Nov. 5, 2004) (unpublished op.). And, directly addressing the issue of statutory tolling, the Tenth Circuit has held that motions to modify parole revocation under § 982a "seek discretionary review, [and] their denial is not appealable, and they therefore do not constitute post-conviction proceedings for purposes of tolling the AEDPA limitations period." See Nicholson v. Higgins, 147 Fed. Appx. 7, 8 n. 2 (10th Cir. Aug. 2, 2005) (unpublished op.). The same procedures that apply to parole revocation apply to sentence modification. Therefore, the holding in Nicholson is persuasive and supports the conclusion that the sentence modification motions do not qualify to toll the limitations period pursuant to 28 U.S.C. § 2244(d)(2).
Even if motions filed pursuant to Okla. Stat. tit. 22, § 982a would qualify to statutorily toll the limitations period, here, such tolling would not save the Petition from its untimely filing. Under this scenario, Petitioner's application for post-conviction relief would further statutorily toll the limitations period as it was filed on July 15, 2005, during the pendency of the motions for sentence modification. The district court denied Petitioner's application for post-conviction relief on August 2, 2005 and the second motion for sentence modification was also denied, at the latest, on this same date. Petitioner did not timely file his appeal of the district court's denial of post-conviction relief and the OCCA dismissed the appeal on this and other grounds. See OCCA Order Dismissing Appeal of Denial of Post-Conviction Relief, attached to Petition. Therefore, the appeal was not "properly filed." See Pace v. Diguglielmo, 125 S.Ct. 1807, 1814 (2005) (concluding that a state post-conviction petition rejected by the state court as untimely is not "properly filed" within the meaning of § 2244(d)(2)). Nonetheless, the limitations period would be tolled for the thirty-day appeal period, as "only after the thirty-day deadline has passed" could Petitioner's appeal be deemed "no longer `properly filed' in the OCCA." Williams v. Gibson, 237 F.3d 1267, 1269 (10th Cir. 2001). Moreover, "`regardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.'" Id. quoting Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000). Accordingly, the limitations period would have been statutorily tolled through September 1, 2005. To be timely under this scenario, the habeas petition would have had to have been filed by November 15, 2005.
Equitable Tolling
The Tenth Circuit limits equitable tolling of the one-year limitations period to "`rare and exceptional' circumstances." Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003) ( citing Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). "Equitable tolling is appropriate, for example, when a prisoner is actually innocent, when an adversary's conduct — or other uncontrollable circumstances — prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period." Burger, 317 F.3d at 1141, citing Gibson. But equitable tolling is "only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
In responding to the motion to dismiss, Petitioner has failed to demonstrate any extraordinary circumstances beyond his control that prevented him from timely filing his Petition. He alleges that he contacted his counsel many times asking for help in challenging his conviction but his counsel chose not to respond or take his legal matters seriously. Because Petitioner has no right to legal counsel in collateral proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), this is not a sufficient basis for equitable tolling. Petitioner further contends he was unaware of the limitations period. This allegation is likewise insufficient to toll the limitations period. See Marsh, 223 F.3d at 1220 ((ignorance of the law generally does not excuse late filing of pro se prisoner). Moreover, Petitioner's claims do not include allegations of actual innocence. Petitioner, therefore, is not entitled to equitable tolling and the Petition should be denied as time-barred.
RECOMMENDATION
It is recommended that Respondent's Motion to Dismiss [Doc. ##11-12] be granted and the Petition be dismissed as untimely.
NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to file an objection to this Report and Recommendation. See 28 U.S.C. § 636. Any objections must be filed with the Clerk of this Court by March 16th , 2006. See Local Civil Rule 72.1. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation disposes of all issues referred by the District Judge in this matter and terminates the referral.