Opinion
Case No. CIV-04-1142-HE.
March 30, 2005.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. Pursuant to an order entered by United States District Judge Joe Heaton, the matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Upon initial examination of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, it appeared that the petition was filed beyond the limitations period contained in 28 U.S.C. § 2244(d)(1). Accordingly, Petitioner was directed to show cause why the petition should not be dismissed as untimely. Respondent was also directed to file a reply to Petitioner's response to the order to show cause. After the parties responded to the order to show cause, the undersigned found that there was not enough information to determine the timeliness issue, and ordered the Respondent to file a response to the petition. Respondent then filed a motion to dismiss, to which Petitioner has timely responded. Thus, the matter is at issue and ready for disposition. For the following reasons, the undersigned recommends that the petition be dismissed.
By this action, Petitioner challenges his conviction, pursuant to a plea of nolo contendere, of injury to a minor child for which he was sentenced on October 29, 1979, to six years imprisonment. Case No. CF-1979-409, District Court of Cleveland County. Petitioner applied to withdraw his plea on October 31, 1979, and the state trial court denied that motion on November 19, 1979. Petition, Ex. 1; Amended Application for Post-Conviction Relief, ¶ 4-5 (Attached as Ex. 4 to Brief in Support of Motion to Dismiss). The state trial court allowed Petitioner eight days in which to report to the Sheriff of Cleveland County to execute the Judgment and Sentence entered in Case No. CF-1979-409. Id. at ¶ 5. However, Petitioner failed to appear, and the state trial court issued a bond forfeiture and bench warrant for Petitioner's arrest. Id. at ¶ 6. Petitioner, who is of Iranian descent, instead went to Iran in December of 1979, where he remained until November of 1981. Id. at ¶ 8. In November of 1981, Petitioner and his family moved to Germany, where he worked for the United States military as a civilian for approximately two years. Id. In 1983, he and his family moved to Fayetteville, Arkansas. Id. On February 3, 2003, a bench warrant was issued for Petitioner's failure to surrender for execution of his sentence. Oklahoma State Courts Network, Docket for Case No. CF-1979-409, District Court of Cleveland County, p. 2 http://www.oscn.net/applications/oscn/ getcaseinformation.asp?submitted=truenumber=CF-1979-409db=Clevelandview type=caseGeneral (accessed Dec. 14, 2004). Petitioner states that he was arrested pursuant to this warrant twice: once in Arkansas on February 6, 2003, and in Missouri on March 2, 2003. Petitioner was extradited from Missouri to Oklahoma on April 1, 2003. Petitioner's Response to Order to Show Cause, Ex. A-1. Memorandum in Support of Petition, p. 10. Petitioner filed an application for post-conviction relief on April 22, 2003, which was denied by the state district court on June 2, 2003. Id. at 2-3. A notice of intent to appeal was filed on June 12, 2003. Id. at 3. That appeal was dismissed on July 16, 2003. Oklahoma State Court Networks, Docket for Case No. PC-2003-690, Oklahoma Court of Criminal Appeals, p. 2http://www.oscn.net/applications/oscn/GetCase Information.asp?number= PC-2003-690db=Appellate submitted=true (accessed Dec. 14, 2004). On August 26, 2003, Petitioner filed a motion for judicial review or modification of sentence which was denied by the state district court that same day. Oklahoma State Courts Network, Docket for Case No. CF-1979-409, District Court of Cleveland County, p. 4http://www.oscn.net/applications/oscn/getcase information. asp?submitted=truenumber=CF-1979-409db=Clevelandviewtype=caseGeneral (accessed Dec. 14, 2004). An "Application for Hearing to Modify Sentence or Motion Nunc Pro Tunc Ruling" was filed on March 5, 2004, and was denied by the state district court. Id. Petitioner also filed an application for a writ of habeas corpus in the District Court of Atoka County, which was denied on April 27, 2004. Petition, p. 4. Petitioner appealed that decision by filing an application for a writ of habeas corpus on May 28, 2004, in the Oklahoma Court of Criminal Appeals, which dismissed the petition on July 14, 2004. Oklahoma State Courts Network, Docket for Case No. HC-2004-564, Oklahoma Court of Criminal Appealshttp://www.oscn.net/applications/oscn/GetCaseInformation. asp?number=HC-2004-564db=Appellatesubmitted=true (accessed Dec. 14, 2004).
The state post-conviction application actually states that Petitioner remained in Germany until 1991, but this is obviously a typographical error as is apparent from the remainder of the paragraph. Amended Application for Post-Conviction Relief, ¶ 8 (Attached as Ex. 4 to Brief in Support of Motion to Dismiss).
After the application for post-conviction relief was filed, however, the judgment and sentence was amended so as to accurately reflect that Petitioner pleaded nolo contendere rather than guilty. Petition, Ex. 9(a) (Amended Judgment and Sentence, dated May 14, 2003). "[C]ourts have the power and the duty to correct judgments containing clerical errors or judgments issued due to inadvertence or mistake." Harmon v. Hargett, No. 96-6135, 1997 WL 73296 at **2 (10th Cir. Feb. 20, 1997). (Unpublished disposition cited as persuasive authority pursuant to Tenth Circuit Rule 36.3). The legal effect of a plea of nolo contendere is the same as that of a plea of guilty, "but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." Okla. Stat. tit. 22 § 513.
Petitioner does not state when the application was filed.
In this action, Petitioner raises three grounds for relief. In Ground One, Petitioner alleges that the State lost jurisdiction because by statute, it had no authority to toll the time from Petitioner's original sentence on October 29, 1979, to the time when he was "re-sentenced" on May 20, 2003, and that its execution of his sentence some 24 years after the offense occurred violated his Fourth and Fourteenth Amendment rights. Petition, p. 6; Memorandum in Support of Petition, p. 5. In Ground Two, Petitioner alleges that his trial, appellate, and post-conviction counsel were ineffective. Petition, p. 8; Memorandum in Support of Petition, p. 6. In Ground Three, Petitioner claims that the bench warrant upon which he was arrested was "illegal." Petition, p. 10; Memorandum in Support of Petition, p. 10.
Respondent moves to dismiss the petition as untimely, claiming that his statutory year to file expired, at the latest, on July 16, 2004. The petition herein was not filed until September 13, 2004. As will be explained below, the undersigned agrees that Petitioner's ineffective assistance of trial and appellate counsel claims are barred by the applicable limitations period. However, the undersigned cannot say with certainty based upon the record now before the Court whether Petitioner's other claims are timely. However, those claims are not cognizable in this federal habeas action, leading the undersigned to nonetheless recommend that the petition be summarily dismissed under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
II. DISCUSSION
A. THE AEDPA LIMITATIONS PERIOD
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sets forth a one-year period of limitations for habeas petitioners who are in state custody. The statute provides in pertinent part:
Pub.L. No. 104-132, 110 Stat. 1214, effective April 24, 1996.
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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). As a general rule, the period of limitation under this statute runs from the date the judgment became "final" as provided by § 2244(d)(1)(A), unless a petitioner alleges facts that would implicate the provisions set forth in § 2244(d)(1)(B), (C), or (D) above. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). The undersigned finds that Petitioner's claims implicate § 2244(d)(1)(A) and (D), and so the timeliness of his claims will be analyzed accordingly.
Petitioner's claim that his trial counsel was ineffective is properly analyzed under § 2244(d)(1)(A). Petitioner's remaining claims are properly analyzed under § 2244(d)(1)(D).
Because of the limited information provided by Petitioner, it is difficult to say with certainty when his conviction became final. A conviction in the state courts of Oklahoma ordinarily becomes final on the date the Oklahoma Court of Criminal Appeals affirms the conviction, and the one year statute of limitations begins to run from the date the United States Supreme Court has denied review of a petition for writ of certiorari, or if no petition is filed, after the ninety-day period for filing the petition for writ of certiorari has expired. Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Petitioner states that he moved to withdraw his nolo plea, that the motion was denied, and that he then appealed that denial. He states, however, that the appeal was not perfected by his retained counsel and was thus "abandoned." Petition, p. 3. Although Petitioner fails to indicate the dates upon which these events occurred, they undoubtedly occurred long before the effective date of the AEDPA — April 24, 1996. The same is true of his claim of ineffective assistance of appellate counsel. Although the timeliness of this claim is analyzed under § 2244(d)(1)(D), the factual predicate of his claim that appellate counsel "abandoned" him could have undoubtedly been discovered with due diligence long before April 24, 1996. Petitioner states that in the time before he moved to Fayetteville, he contacted both his bondsman and the court clerk in Cleveland County to determine if there was a warrant for his arrest. Memorandum in Support of Petition, p. 3; Petitioner's Response to Order to Show Cause, p. 4. During these same conversations, Petitioner certainly could have discovered that his appeal was no longer pending, and that, as he alleges, his appellate counsel had abandoned him. Thus, Petitioner had one year from the effective date of the AEDPA, giving him until April 24, 1997, in which to file a petition regarding his ineffective assistance of trial and appellate counsel claim. Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998) (for prisoners who were sentenced prior to the April 24, 1996, effective date of AEDPA, there is an equitable "grace" period of one year from April 24, 1996, to file their habeas petitions). The petition herein was filed on September 13, 2004. Thus, in the absence of statutory or equitable tolling, these claims are untimely.
The certiorari appeal procedure applicable to appeals from a plea of guilty are generally considered part of the direct appeal process under Oklahoma law. York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003).
Federal law provides that the limitations period is tolled for a "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). However, with regard to these two claims, there is no statutory tolling for Petitioner's state post-conviction application and other state collateral proceedings because they were not filed until after the limitations period for the claims in question had expired.Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (no tolling for state collateral proceeding filed after limitations period had already expired).
The period of limitation also "may be subject to equitable tolling" under circumstances where application of the period of limitation would possibly render the habeas remedy "inadequate and ineffective." Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). However, equitable tolling is limited to "rare and exceptional circumstances." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). To justify equitable tolling, the petitioner must "demonstrate 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) (emphasis added). In Gibson, the Tenth Circuit recognized that "[e]quitable tolling would be appropriate . . . 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." Id. (citations omitted); accord Miller, 141 F.3d at 978 (recognizing that circumstances such as a claim of actual innocence or incompetency may exist where application of the limitation period would possibly render the habeas remedy "inadequate and ineffective" and subject the limitation period to equitable tolling)." A petitioner has the burden of demonstrating that equitable tolling applies. Cooper v. Bravo, No. 00-2462, 2002 WL 32716 at *4 (10th Cir. Jan. 11, 2002) (citingMiller).
This and any other unpublished dispositions are cited herein for persuasive authority pursuant to Tenth Circuit Rule 36.3.
Before turning to Petitioner's specific tolling arguments, the undersigned notes at the outset that Petitioner was a fugitive from justice until 2003, and that most of the events he relies on to support his claim for equitable tolling did not occur until after that time. As noted above, Petitioner left the United States for four years, and when he returned, settled in another state — where he lived until his estranged wife reported his whereabouts to authorities. "A petitioner's own behavior may . . . fatally undermine his claim that `rare and extraordinary' or `exceptional' circumstances warrant equitable tolling." Jarman v. New York, 234 F.Supp.2d 213, 216-17 (E.D.N.Y. 2002) (quotingValverde v. Stinson, 224 F.3d 129, 133 n. 3 (2nd Cir. 2000). Thus, as will be noted below in connection with some of Petitioner's equitable tolling claims, much of the delay in this case was caused by circumstances within the control of Petitioner.
Petition, Ex. 15(a) ¶ 4.
Petitioner raises several arguments in support of his claim that the statute of limitations should be equitably tolled in this case. First, he claims that he is being held in the custody of the Oklahoma Department of Corrections for a falsely alleged crime of which he is actually innocent. Petitioner's Response to Motion to Dismiss, p. 1-12. He claims that this crime, which supposedly took place on October 2, 2002, never actually occurred. Id. at 2. Second, he claims that he did not receive extradition documents from the Oklahoma Governor's office showing this fact until September of 2004. Petitioner's Response to Motion to Dismiss, p. 19-26. The undersigned finds that neither of these contentions entitles Petitioner to equitable tolling of the limitation period. Although the application for a warrant of requisition to the Governor of Oklahoma is somewhat ambiguous, the summary order which led to the bench warrant for Petitioner's arrest makes it clear that the reason for the bench warrant's issuance was the fact that Petitioner's judgment and sentence in Case No. CF-1979-409 remained unexecuted — not that Petitioner had committed a "new" crime on October 2, 2002. Petitioner's Response to Motion to Dismiss, Exs. 3, 4. The bench warrant recites that "a disposition having been set on 10-2-2002, chargingFARAMARZ RAHAT with failure to appear for execution of judgement [sic] and sentence; original charge being injury of minor." Petitioner's Response to Motion to Dismiss, Ex. 4 (italics added). The summary order upon which the warrant is based states:
The Application for Requisition states that Petitioner stands charged with "failure to appear for execution of judgement [sic] and sentence on original charge being (injury to minor child) CF-1979-0490 said crime having been committed in said county and state, on or about, October 02, 2002."Petitioner's Response to Motion to Dismiss, Ex. 3, p. 2. The undersigned notes that as Petitioner had up to that point never appeared for execution of his judgment and sentence, the statement he complains of was technically true.
Petitioner continues to refer to this event as a disposition hearing, and makes much of the fact that he was not in attendance. It is not clear from the record whether there was a hearing, or whether the trial court reviewed the file in response to the new information received from Petitioner's estranged wife that he had returned to the United States and was living in Arkansas.
The Defendant having been convicted at jury trial and been released on appeal bond, and having failed to perfect his appeal, [bond forfeiture] having been granted and executed and [bench warrant] issued; said [bench warrant] having been returned by [Cleveland County Sheriff's office] as "RECALLED" without explanation in the record J S remaining unexecuted BENCH WARRANT is ordered re-issued for Defendant's arrest (NO BOND) (enter NCIC Any Juris).
Petitioner's Response to Motion to Dismiss, Ex. 3, p. 10, and Ex. 4.
Thus, Petitioner's claim that he is entitled to equitable tolling because of his late discovery of documents showing that he is in custody for a crime which supposedly took place on October 2, 2002 is unavailing — he was clearly arrested, extradited, and incarcerated because he had never surrendered to serve his sentence pursuant to his 1979 Cleveland County conviction. Moreover, as indicated above, this event stemmed directly from the actions of the Petitioner, and so should not entitle him to equitable tolling of the limitation period applicable to his ineffective assistance of counsel claims. If Petitioner had reported for execution of his sentence rather than leaving the United States, or if he had even reported to the trial court or the district attorney once he returned (rather than calling the court clerk to see if anyone was looking for him), it would not have been necessary to issue a bench warrant or extradition documents.
This leads to Petitioner's third claim in support of equitable tolling, that of "actual innocence." Petitioner goes to great pains to show that he is actually innocent of any crime committed on October 2, 2002, relying on numerous alleged irregularities in the bench warrant and extradition documents. Petitioner's Response to Motion to Dismiss, p. 1-12. However, Petitioner does not make a colorable showing of actual innocence of the crime with which he is actually convicted. Petitioner is in effect setting up a straw man — the October 2002 "crime" — so that he can knock it down. To invoke equitable tolling based on a claim of actual innocence, a petitioner must "come forward with sufficient evidence to undermine the court's confidence in the outcome of his criminal proceedings." Christensen v. Hines, No. 00-6160, 2001 WL 237366, *2 (10th Cir. Mar. 9, 2001) (citation omitted). Petitioner's efforts to show actual innocence of a crime for which he is not incarcerated is not sufficient to entitle him to equitable tolling.
Petitioner's next argument as to why the limitations period should not bar his claims is that his post-conviction attorneys "abandoned" him. Petitioner's Response to Motion to Dismiss, p. 27-38. However, because Petitioner has no right to counsel on post-conviction, his equitable tolling argument based upon his difficulties with counsel is unavailing. Hankins v. Boone, No. 00-5039, 2000 WL 972963 (10th Cir. July 14, 2000) (rejecting petitioner's equitable tolling argument for untimely petition based on retained counsel's alleged delay in initiating state post-conviction proceeding and delay in returning necessary documents to petitioner upon completion of post-conviction proceeding) (citingSmallwood v. Gibson, 191 F.3d 1257, 1269 (10th Cir. 1999)).
Finally, Petitioner argues that he should be entitled to equitable tolling because due to the State's inaction, he had no reason to believe that he needed to "implement procedures to collaterally attack his sentence." Petitioner's Response to Order to Show Cause, p. 6. However, once again, Petitioner is not relying upon extraordinary circumstances beyond his control. Marsh, 223 F.3d at 1220. Although it is true that the original bench warrant for Petitioner's arrest was apparently recalled without explanation, Petitioner also represents that he contacted the court clerk in Cleveland County sometime prior to his moving to Arkansas. Thus, he was aware (or should have been aware) that his conviction remained. Petitioner could have attacked that outstanding conviction through appropriate post-conviction proceedings and/or a federal habeas action, but instead, he chose to relocate to Arkansas without doing so. At a minimum, this action contributed to his inability to timely file his habeas action, and he is therefore not entitled to equitable tolling as a result of the State's failure to actively seek his return to serve his extant conviction. Verikokidis v. Galetka, No. 01-4203, 2002 WL 1443475, at **2 (10th Cir. July 5, 2002) (petitioner not entitled to equitable tolling because seven-year delay caused by fugitive status contributed to circumstances which he claimed limited his ability to file petition in timely manner).
In his memorandum in support of the petition, Petitioner states that he was told by his bondsman (whom he also spoke to in order to verify that there was no warrant for his arrest) that the State was under the assumption that Petitioner was never coming back to the United States. Memorandum in Support of Petition, p. 3.
Even if Petitioner could show rare and extraordinary circumstances justifying equitable tolling of the limitation period, he must also demonstrate that he has diligently pursued his federal claims. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); Marsh, 223 F.3d at 1220. "[T]his Circuit has generally declined to apply equitable tolling when it is facially clear from the timing of the state and federal petitions that the petitioner did not diligently pursue his federal claims." Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003); Miller, 141 F.3d at 978 (refusing to apply the doctrine of equitable tolling because the petitioner "provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims."). Here, Petitioner was not diligent in pursuing his federal claims. Once he was extradited, and finally began serving his six-year sentence, Petitioner filed a post-conviction application and an appeal from the state district court's denial of the same. However, that appeal was dismissed on July 16, 2003, and yet Petitioner did not bring this habeas action until over a year later. He instead continued to pursue various other state collateral remedies. He even waited another two months after the latest of these various efforts failed before bringing this action. Accordingly, the undersigned finds that Petitioner's claims in Ground Two are untimely.
In his memorandum in support of Ground One, Petitioner also states that the trial court sentenced him without waiting for the results of a presentence investigation. To this extent this is meant to be a stand alone claim it is both untimely, as it would be considered under § 2244(d)(1)(A), and raises a state law issue which is not cognizable in this action. "`[F]ederal habeas review does not extend to the correction of purely state law procedural errors that do not rise to the level of a constitutional due process violation. . . .'" Shipley v. State, 313 F.3d 1249, 1251 (10th Cir. 2002).
Though arguably timely, Petitioner's remaining claims that the State "lost jurisdiction" by not following its own rules, that his post-conviction counsel was ineffective, and that the bench warrant upon which he was arrested was "illegal," fail to state claims cognizable in this habeas action. Habeas corpus relief is only available on grounds that a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States."); see also Shipley v. State, 313 F.3d 1249, 1251 (10th Cir. 2002) ("[F]ederal habeas review does not extend to the correction of purely state law procedural errors that do not rise to the level of a constitutional due process violation . . .").
The parties' failure to provide any information as to the length of time that Petitioner's application for a writ of habeas corpus was pending in the District Court of Atoka County has made it impossible to determine the timeliness of these claims.
First, a criminal defendant has no constitutional right to legal representation in state post-conviction proceedings.Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today."); see also Smallwood v. Gibson, 191 F.3d 1257, 1269 (10th Cir. 1999) (holding that a habeas petitioner could not show "attorney error amounting to constitutionally ineffective assistance of counsel . . . because there is no constitutional right to post-conviction counsel"). Petitioner appears to concede that he has no right to counsel in post-conviction proceedings, but claims that he was "denied `due process,' because of his attorneys, and the court's conduct during his post conviction proceedings" which he characterizes as "an act of outrageous Government conduct." Memorandum in Support of Petition, p. 8. However, almost all of his allegations do indeed focus on counsels' conduct. He mentions only two instances of "government" conduct: that the trial court postponed its decision to deny Petitioner indigent status, and allowed his post-conviction counsel to withdraw after denying the application for post-conviction relief. Id. However, these alleged errors in the post-conviction proceeding fail to state a claim cognizable in this federal habeas action. See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993).
Petitioner's claim regarding the "illegal" 2003 bench warrant also fails for several reasons. First, he claims that the State used "the same information to not only arrest him twice, once in 1979, and a second time in 2003," and that when the State "used the same information to sentence Petitioner twice for the same crime, it created a double jeopardy issue as well." Memorandum in Support of Petition, p. 10. However, in Cummings v. Evans, 161 F.3d 610, 614 (10th Cir. 1998), the Tenth Circuit reaffirmed that "[t]he Double Jeopardy Clause consists of three separate constitutional protections. `It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989)). The Oklahoma court's issuance of a bench warrant to seek execution of a judgment and sentence which Petitioner — though convicted — never served implicates none of these protections.
Next, Petitioner claims that the State "lost jurisdiction" to execute his judgment and sentence because it recalled the initial bench warrant, and thus "failed to prosecute." Memorandum in Support of Petition, p. 10. The undersigned is aware of no authority that the State's failure to actively seek arrest of a convicted felon who has absented himself from the jurisdiction results in a "loss of jurisdiction" to execute the judgment and sentence. The United States Supreme Court has never recognized the so-called "waiver theory" as a valid substantive due process test. Nevertheless, the waiver of jurisdiction theory has its genesis in two cases decided by what was then the Fifth Circuit Court of Appeals: Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967) and Piper v. Estelle, 485 F.2d 245 (5th Cir. 1973). However, neither of these cases concerned a fugitive such as Petitioner. In fact, the Tenth Circuit has distinguishedShields twice on grounds that it involved release of an inmate in the middle of a sentence. Overturf v. Massie, 385 F.3d 1276, 1279 (10th Cir. 2004); Sanders v. Hannigan, No. 01-3123, 2002 WL 1023633, at **3 (10th Cir. May 22, 2002). Moreover, as noted by the Eighth Circuit, a petitioner relying on the "waiver theory" carries a heavy burden:
The waiver theory — that the state's conduct may result in the waiver of its jurisdiction over a criminal defendant — is premised on the fourteenth amendment's protection against arbitrary and capricious state action. Under this theory, "it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest." The habeas petitioner shoulders the heavy burden of establishing that the state's action was so affirmatively wrong or its inaction was so grossly negligent that requiring him to serve his sentence would be unequivocally inconsistent with "`fundamental principals of liberty and justice.'"Camper v. Norris, 36 F.3d 782, 784 (8th Cir. 1994). AlthoughCamper did not deal with a fugitive per se, it does indicate that a petitioner's due process rights have not been violated where he is partially responsible for the delay in his incarceration:
We conclude that Camper knew that his conviction had been affirmed, and under the terms of his bail bond, he was obligated to turn himself over to the authorities. Thus, Camper must accept at least part of the blame for the delay in the execution of his sentence. This finding is significant because the state does not deny a prisoner due process when the prisoner himself is also responsible for the delay in his incarceration.Id. at 785. As in Camper, the Petitioner here knew his conviction was still outstanding, and that he had never served any of his six-year term of imprisonment. Thus, whether there was a warrant for his arrest or not, he was at least partially responsible for the delay in his incarceration by first leaving the United States, and then upon his return, relocating to Arkansas.
Petitioner next claims that the bench warrant could not be executed in another state, and that his arrest in Missouri and Arkansas was thus illegal. Memorandum in Support of Petition, p. 11. However, a law enforcement officer may even make a warrantless arrest of a fugitive from another jurisdiction, so long as the arresting officer has probable cause and the arrest is otherwise lawful. Gee v. Kansas, 912 F.2d 414, 418 (10th Cir. 1990). "A fugitive from justice is a person who is 1) suspected of or has been convicted of committing a crime, 2) sought by the jurisdiction so that the jurisdiction may subject the person to its criminal justice system, and 3) has left the jurisdiction and is found within the boundaries of another."Id. at 418. Thus, "all that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there." Id. Accordingly, Petitioner was clearly a fugitive at the time of his arrest in both Arkansas and Missouri. This is so even if Petitioner is correct that he did so with the knowledge of State authorities. Id.
Petitioner alleges that after he called the Cleveland County Court Clerk several times to confirm that there was no warrant for his arrest, he gave the Court Clerk his address in Arkansas, "just in case there was any change pertaining to his case." Memorandum in Support of Petition, p. 3. He does not state when this alleged notification took place.
Finally, Petitioner claims that the bench warrant created "false probable cause" and that it falsely stated that he fled the State of Oklahoma. Memorandum in Support of Petition, p. 11. He claims that the bench warrant created the false impression that he "had just committed this crime," in that it referred to a 2002 disposition date rather than the date of his crime, and that it falsely implied that he was "on the run." Id. As noted above, Petitioner was a fugitive from justice, in that he left the State of Oklahoma after having been convicted here. He does not dispute that up and until the time he was arrested and returned to the State, he had failed to appear for the execution of his judgment and sentence. His complaint of various procedural irregularities in the bench warrant does not change the basic fact that there was probable cause to believe that he had left the jurisdiction without the judgment and sentence ever having been executed, and probable cause is all that is required under the Fourth Amendment. Gee, 912 F.2d at 418. Moreover, his complaints regarding irregularities in the bench warrant fail to raise any claims of constitutional error in the judgment and sentence itself. Cf. Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) ("[B]ecause the constitutional error he raises focuses only on the State's post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim.").
RECOMMENDATION
For the reasons discussed above, it is recommended that Respondent's motion to dismiss the petition as untimely [Doc. No. 26] be granted in part and denied in part, and that to the extent the petition is timely, it be summarily dismissed for failing to state claims cognizable in a federal habeas action. In light of this recommendation, it is further recommended that Petitioner's motion for order to show cause [Doc. No. 8], motion for bail pending hearing and decision [Doc. No. 16], and motion for summary judgment [Doc. No. 36] be denied. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 19, 2005, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives any right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991). This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
It should be noted that Petitioner also filed a Motion for Leave to Verify or Re-Introduce Evidence That Has Already Been Designated Part of the Record [Doc. No. 21], which is hereby granted.