Opinion
CIV-22-933-HE
05-16-2023
ANTHONY ADAMS MILLAN, Petitioner, v. STEVEN HARPE, 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 Joe Heaton has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a Motion to Dismiss based on untimeliness and has filed a brief in support. (ECF Nos. 13 & 14). Petitioner has not responded. For the reasons set forth herein, it is recommended that Respondent's motion be GRANTED.
I. PROCEDURAL BACKGROUND
On September 13, 2019, an Oklahoma County District Court jury convicted Petitioner of first-degree murder. See ECF No. 1:1; see also State Court Docket Sheet, State of Oklahoma v. Millan, Case No. CF-2017-714 (Okla. Co. Dist. Ct. Sept. 13, 2019).On January 7, 2021, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. See ECF Nos. 1:2; 14-1. On April 7, 2022, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court. See ECF No. 14-3. The district court dismissed the application on July 20, 2022. See ECF No. 14-5. The OCCA affirmed the district court's dismissal on October 14, 2022. See ECF No. 14-6. Mr. Millan filed the instant habeas Petition on October 26, 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).
In the habeas Petition, Mr. Millan references an Application for Post-Conviction Relief filed on August 24, 2020, in Wagoner County District Court Case No. CF-2015-629. (ECF No. 1:3-4). But this reference appears to be a typographical error the referenced action involves not Mr. Millan, but a defendant named Ray Roger Jordan, in an action unrelated to Petitioner's.
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). 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. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
Ordinarily, if a habeas petitioner does not seek certiorari review in the United States Supreme Court following a decision by the state court of last resort, the conviction is considered “final” for purposes of subsection (A) after the 90-day time period for filing a petition for certiorari expires. See Locke v. Saffle, 237 F.3d 1269, 1272-73 (10th Cir. 2001). However, on March 19, 2020, the United States Supreme Court entered an order which lengthened the deadline to file a certiorari petition for additional 60 days. See Order, at 1, 589 U.S. (U.S. Mar. 19, 2020); Wonsch v. Crow, 2022 WL 17337880, at *2 (10th Cir. 2022). That order remained in effect until July 19, 2021. See Order at 1, 594 U.S. (U.S. July 19, 2021); Wonsch, 2022 WL 17337880, at *2. Because the OCCA affirmed Mr. Millan's conviction on January 7, 2021, Petitioner benefitted from the extension. And because Petitioner did not seek review in the United States Supreme Court, his conviction became final on June 7, 2021-150 days following the OCCA's January 7, 2021 affirmance of Mr. Millan's conviction.
Thus, without tolling, Petitioner's statute of limitations to file a habeas petition began the day following the OCCA's affirmance and expired one year later, on June 8, 2022. See U.S. v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003). But Mr. Millan filed the habeas Petition on October 26, 2022, over four 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.
IV. 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. Millan filed an Application for Post-Conviction Relief in the Oklahoma County District Court on April 7, 2022. See supra. However, the Oklahoma County District Court dismissed the application because it had not been verified by Mr. Millan, as required by statute. See 22 O.S. § 1081 ('“A proceeding is commenced by filing a verified "application for post-conviction relief" with the clerk of the court imposing judgment if an appeal is not pending. When such a proceeding arises from the revocation of parole or conditional release, the proceeding shall be commenced by filing a verified "application for post-conviction relief" with the clerk of the district court in the county in which the parole or conditional release was revoked.”); see also ECF No. 14-5.
For purposes of 28 U.S.C. § 2244(d)(2), an application for post-conviction relief is considered “properly filed” according to the filing requirements for a state post-conviction application. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations and footnote omitted) (stating: "an application is 'filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is ‘property filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.”) (emphasis in original); Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (“[w]e believe that a “properly filed” application is one filed according to the filing requirements for a motion for state post-conviction relief. These requirements may include: (1) the place and time of filing; (2) the payment or waiver of any required filing fees; (3) the obtaining of any necessary judicial authorizations that are conditions precedent to filing, such as satisfying any filing preconditions that may have been imposed on an abusive filer; and (4) other conditions precedent that the state may impose upon the filing of a post-conviction motion.”).
Utilizing these guidelines, Oklahoma Courts have held that an application for postconviction relief which is not verified is not “properly filed” to invoke tolling under § 2244(d)(2). See Hyslop v. Nunn, No, 21-45-RAW-KEW, 2022 WL 686308, at *6 (E.D. Okla. Mar. 8, 2022) ("Petitioner's fourteen unverified applications for post-conviction relief were not "properly filed” under Oklahoma law, and those collateral filings thus did not statutorily toll Petitioner's AEDPA year.”); Horton v. Tuggle, No. CIV-19-255-JFH-KEW, 2021 WL 767862, at *4 (E.D. Okla. Feb. 26, 2021) ("Because [habeas petitioner's] postconviction proceedings never were properly commenced by filing a verified application for post-conviction relief under Okla. Stat. tit. 22, § 1081, the statute of limitations was not tolled during the pendency of those proceedings.”); See Brown v. Rios, No. CIV 13 934-M, 2014 WL 3397632, at *2-*3 (W.D. Okla. July 10, 2014) (holding that where state district court struck petitioner's post-conviction application for being unverified as required by state statute, application was not properly filed for purposes of § 2244(d)(2)). Based on the forgoing, the Court should conclude that Mr. Millan's April 7, 2022 Application for Post-Conviction Relief was not “properly filed” for purposes of statutory tolling under 28 U.S.C. § 2244(d)(2). Thus, the Court should conclude that the habeas filing is untimely absent any additional tolling or other exception.
V. 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).
Mr. Millan offers no argument in support of equitable tolling. See ECF No. 1. In his habeas petition, in the section on “timeliness of petition,” Mr. Millan states: “When taking into account all tolling issues, this application is filed timely before this Court.” (ECF No. 1:15). But Petitioner has not: (1) presented any substantive argument regarding any type of tolling, (2) proven that any “extraordinary circumstances” existed, or (3) satisfied his burden to prove that he otherwise entitled to equitable tolling. As a result, the Court should conclude that Petitioner is not entitled to equitable tolling.
VI. 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. Millan 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.
VII. SUMMARY
Mr. Millan's deadline for filing his habeas petition expired on June 8, 2022. See supra. But Mr. Millan filed the habeas Petition on October 26, 2022, over four months after the limitations period had expired. Mr. Millan is not entitled to equitable tolling and the actual innocence exception does not apply.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court GRANT Respondent's Motion to Dismiss and dismiss the Petition as untimely.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by June 1, 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).
IX. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.