Opinion
CIV-22-862-JD
09-28-2023
KEITH LORENZO SUMPTER, Petitioner, v. DAVID BUSS, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Keith Lorenzo Sumpter, a state prisoner proceeding pro se, petitions for habeas corpus relief under 28 U.S.C. § 2254. Doc. 3. United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Docs. 8, 12.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
An Oklahoma County jury convicted Petitioner of one count of indecent or lewd acts with a child under sixteen. State v. Sumpter, No. CF-2016-4057, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2016-4057&cmid=3401724 (last visited Sept. 21, 2023) (Sumpter).
The undersigned takes judicial notice of the docket report in Plaintiff's state-court proceeding. 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'”) (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)).
Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed his conviction on December 19, 2019. Doc. 18, Ex. 1 (summary opinion). Petitioner did not petition for a writ of certiorari in the United States Supreme Court. Petitioner applied for post-conviction relief on May 12, 2020. Doc. 18, Ex. 2. The Oklahoma County District Court denied post-conviction relief, Doc. 18, Ex. 5, and the OCCA affirmed on December 22, 2020, Doc. 18, Ex. 11.
Petitioner mailed a “Petition for Habeas Corpus Challenging State Court Rules, Practices, Regulations, Policies, et. al.” to the United States District Court for the Northern District of Oklahoma on July 23, 2022. Doc. 1; see Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (explaining prison mailbox rule). After Petitioner filed a court-ordered amended petition for writ of habeas corpus, Docs. 2, 3, the Northern District Court transferred the case to this Court on September 28, 2022. Doc. 5.
Before the Court is Respondent's motion to dismiss the petition as time-barred by the statute of limitations and his brief in support. Docs. 17, 18. Petitioner has responded to the motion to dismiss. Doc. 19. For the reasons explained below, the undersigned recommends the Court grant Respondent's motion and dismiss the petition as untimely.
I. Discussion.
Petitioner brings four grounds for relief. The undersigned will not reach the merits of these claims because, as explained below, Petitioner's habeas petition was filed out of time and Petitioner is not entitled to equitable tolling or the actual innocence exception.
In Ground I, Petitioner alleges he “has been repeatedly denied his 5th, 6th and 14th Amendment right to confront and examine his accuser,” based on the exclusion of an affidavit by the victim's mother from evidence. Doc. 3, at 5. In Ground II, he alleges ineffective assistance of trial counsel. Id. at 7. In Ground III, he argues ineffective assistance of appellate counsel. Id. at 8. In Ground IV, he alleges ineffective assistance of counsel in postconviction proceedings. Id. at 10.
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
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.28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
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.Id. It also includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. § 2244(d)(2). A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only “in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“AEDPA's one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.'” (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998))); see also Holland v. Florida, 560 U.S. 631, 645 (2010) (holding that “§ 2244(d) is subject to equitable tolling in appropriate cases”).
B. Petitioner's deadline to file for habeas relief.
Taking into account the statutory tolling while Petitioner's application for post-conviction relief was pending in state court, Petitioner's deadline to file his habeas petition was November 1, 2021. 28 U.S.C. § 2244(d)(2).
1. Conviction finalized under 28 U.S.C. § 2244(d)(1)(A).
Unless a petitioner shows otherwise, the limitations period typically runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “When the petitioner hasn't petitioned for certiorari with the Supreme Court, the one-year period begins to run ‘after the time for filing a petition for certiorari with the Supreme Court has passed.'” Collins v. Bear, 698 Fed.Appx. 946, 949 (10th Cir. 2017) (quoting Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)). Petitioner's conviction and sentence became final on March 18, 2020, ninety days after the OCCA affirmed them. See id. at 948 (holding the petitioner's convictions became final ninety days after the OCCA affirmed his convictions); see also Doc. 18, Ex. 1.
The one-year limitations period begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” wherein “the day of the act . . . from which the designated period of time begins to run shall not be included” (quoting Fed.R.Civ.P. 6(a))). Therefore, Petitioner's statutory year to file a habeas petition began on March 19, 2020, and, absent tolling, would have expired one year later on March 19, 2021.
As explained below, the statute of limitations was tolled while Petitioner's application for post-conviction relief was pending.
2. Statutory tolling.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). An application for post-conviction relief in state court “‘remains pending' ‘until the application has achieved final resolution through the State's postconviction procedures,'” that is, when the “State's highest court has issued its mandate or denied review.” Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).
Petitioner filed his application for post-conviction relief in the Oklahoma County District Court on May 12, 2020. Doc. 18, Ex. 2. This was fifty-four days into Petitioner's statutory year to file a habeas petition. And at that point, the § 2244 limitations period was tolled. The state district court denied Petitioner's post-conviction application, and Petitioner timely appealed to the OCCA. Doc. 18, Exs. 5, 7. The OCCA affirmed the district court's denial of postconviction relief on December 22, 2020. Doc. 18, Ex. 11. Petitioner's statutory year resumed the next day.
The limitations period expired 311 days later. Therefore, to be timely filed, Petitioner's application for habeas corpus relief was due by November 1, 2021. Petitioner did not file his habeas petition until July 23, 2022, which was 264 days after the expiration of the § 2244 limitations period, adjusted for statutory tolling. Petitioner's application was therefore untimely filed. And although Petitioner made a number of state-court filings after his statutory year had expired, none of these tolled the statute of limitations. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”).
Three-hundred-and-eleven days after Petitioner's statutory year resumed was October 30, 2021-a Saturday. The practical deadline was therefore two days later, on Monday, November 1, 2021. See Fed.R.Civ.P. 6(a); LCvR6.1.
C. Petitioner is not entitled to equitable tolling of the § 2244 limitations period.
Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Generally, “a [habeas] petitioner is entitled to equitable tolling only 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.” Holland, 560 U.S. at 649 (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner argues that the “COVID epidemic caused many delays both within the judicial system and an inmates [sic] access to the prison law library.” Doc. 3, at 13. He alleges he “has diligently sought relief in good faith because he is actually and factually innocent.” Id.
The one-year period of limitation “is subject to equitable tolling . . . only ‘in rare and exceptional circumstances.'” Gibson, 232 F.3d at 808 (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). And Petitioner must “demonstrate[] that the failure to timely file was caused by extraordinary circumstances beyond his control.” See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
Even assuming Petitioner diligently pursued his rights, interruptions to law library access resulting from COVID-19 are not such extraordinary circumstances. “Access to the law is merely a ‘means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'” Winston v. Allbaugh, 743 Fed.Appx. 257, 258-59 (10th Cir. 2018) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). So, temporary deprivation of access to the law “does not automatically warrant equitable tolling.” Id.; see also Donald v. Pruitt, 853 Fed.Appx. 230, 234 (10th Cir. 2021) (holding petitioner was “not entitled to equitable tolling based on his allegedly limited access to the law library in the wake of COVID-19,” and collecting cases). Instead, a petitioner “must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351. Petitioner indicates no measures he took to access the law library during this period. See United States v. Tinsman, No. 21-7024, 2022 WL 3208346, at *2 (10th Cir. Aug. 9, 2022) (“An inability to access legal materials can also merit equitable tolling, but Petitioner would still have to show the requisite diligence, such as by showing he made ‘multiple requests that his documents be returned before the deadline.'” (quoting United States v. Oakes, 445 Fed.Appx. 88, 94 (10th Cir. 2011))).
The record does not reflect that Petitioner diligently pursued his claims (or that he was impeded from doing so by COVID-19-related “delays within the judicial system”). As explained supra § I.B.2., Petitioner filed nothing to advance his habeas claims for over a year after the OCCA affirmed denial of post-conviction relief,and 264 days after his § 2244 limitations period had expired. See Doc. 18, at 23. As with the disruption to law library access, Petitioner indicates no specific measures he took to file any communications with any federal or state court during that time.
The OCCA affirmed the district court's denial of post-conviction relief on December 22, 2020, and Petitioner filed his habeas petition on July 23, 2022.
The undersigned concludes Petitioner is not entitled to equitable tolling of the § 2244 limitations period.
D. Petitioner has not demonstrated he is entitled to the actual innocence exception to the § 2244 limitations period.
1. Relevant background.
Petitioner was convicted of performing lewd or indecent acts with a child. At a preliminary hearing, the victim's (“L.H.”) mother testified that she did not actually see any inappropriate contact between Petitioner and her daughter. Doc. 18, Ex. 1, at 8 (OCCA opinion). She testified to statements made to her by Petitioner, but as to her daughter, she “testified that she ‘talked to her about the situation and sent her outside to the backyard.'” Id. at 9. Later, L.H.'s mother signed an affidavit at defense counsel's office with the following statements:
1. That despite my earlier testimony I did not see [Petitioner] deliberately expose himself.
2. That I never saw [Petitioner] commit a crime against my daughter [].
3. That my daughter has admitted to me that nothing happened between [Petitioner] and herself.
4. That she also told me that the reason she did not want him around was because he wouldn't play with her and her brother. That he didn't take them to the park.
5. That I have not been coerced or threatened in anyway [sic]. These statements are my own and given freely.Doc. 3, at 66; see also Doc. 18, Ex. 1, at 3. The trial court excluded that affidavit as hearsay, and L.H.'s mother likewise did not testify at trial. Doc. 18, Ex. 1, at 4-5. Instead, only her preliminary hearing testimony was read at trial. Id. at 4.
As well as the mother's preliminary hearing testimony, the jury also heard testimony from Petitioner that L.H. had “lied about him touching her” and that the responding police officer had “lied when he said he overheard [Petitioner] say on the phone that he messed up and should not have let L.H. touch him.” Id. at 10. (“[Petitioner] said the voice on the phone may not have been him.” Id.) L.H. also testified. During cross-examination, defense counsel elicited testimony about L.H.'s possible motives for accusing Petitioner, including “that she did not like [Petitioner] and wanted him out of her home.” Id. When asked if she had ever told her mother she had made up these allegations, L.H. said “she never told her mother that she made it up” and “her mother never asked her if she was telling the truth.” Id.
2. The affidavit is not strong enough to undermine confidence in the verdict.
Liberally construed, Petitioner's actual innocence claim is based on L.H.'s mother's affidavit, which he argues amounted to a recantation of her preliminary hearing testimony and establishes his actual innocence. Doc. 3, at 5, 7-10, 16, 19-20.
Petitioner also raises ineffective assistance of counsel, mostly related to the exclusion of the affidavit from evidence. E.g., Doc. 3, at 7. A claim of constitutional error alone is insufficient to prove actual innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.”).
“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief,” such as an otherwise-untimely petition. McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. “To be credible, a claim of actual innocence requires a petitioner to present ‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Fontenot v. Crow, 4 F.4th 982, 1031 (10th Cir. 2021) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)), cert. denied, 142 S.Ct. 2777 (2022).
To prove actual innocence, a petitioner must allege 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. 518, 537 (2006) (quoting Schlup, 513 U.S. at 327). A “petitioner's showing of innocence is not insufficient solely because the trial record contained sufficient evidence to support the jury's verdict.” Schlup, 513 U.S. at 331. But “it is by no means easy for a petitioner to meet the [actual innocence] standard.” Case v. Hatch, 731 F.3d 1015, 1036 (10th Cir. 2013). The actual innocence exception should apply “only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin, 569 U.S. at 401 (quoting Schlup, 513 U.S. at 316).
In assessing an actual innocence claim, the Court may consider “any reliable evidence not presented to the jury” at trial. Fontenot, 4 F.4th at 1033. The actual innocence inquiry is a holistic one, taking into account “‘all the evidence,' and its likely effect on reasonable jurors applying the reasonable-doubt standard.” Id. at 1032 (quoting House, 547 U.S. at 539). As part of this holistic inquiry, a “presumption of correctness applie[s] to state court factfinding.” Id. at 1034; see also § 2254(e)(1) (In a habeas proceeding, “a determination of a factual issue made by a State court shall be presumed to be correct.”). So, “when a state court has made a factual determination bearing on the resolution of a Schlup issue, the petitioner bears the burden of rebutting this presumption by clear and convincing evidence.” Fontenot, 4 F.4th at 1034-35 (quoting Teleguz v. Pearson, 689 F.3d 322, 331 (4th Cir. 2012)).
Even if reliable, L.H.'s mother's affidavit does not constitute evidence so strong as to undermine confidence in the outcome of the trial. First, L.H.'s mother consistently stated (in her preliminary hearing testimony and in her affidavit) that she did not witness any inappropriate contact between Petitioner and her daughter. The OCCA found the same in reviewing Petitioner's claim that the affidavit should have been admitted under a hearsay exception. See Doc. 18, Ex. 1, at 3-5. The OCCA found L.H.'s mother admitted in both her preliminary hearing testimony and the affidavit that “she did not actually see any inappropriate conduct between [Petitioner] and her daughter.” Id. at 8.
The OCCA did not review the affidavit itself but instead based its findings upon defense counsel's summary of the document. Doc. 18, Ex. 1, at 9. This Court has before it a copy of the affidavit, submitted by Petitioner. The Court finds the OCCA's summary to be an accurate representation of the affidavit's contents.
Second, the rest of the affidavit's content was otherwise presented to the jury. As the OCCA found, Petitioner testified that L.H. had lied about his touching her. Id. at 9-10. And, as also found by the OCCA, any motives for L.H.'s alleged falsehoods contained in the affidavit, including her dislike of Petitioner, were also conveyed during her cross-examination. Id. at 10. At best, the affidavit would have forced the jury to weigh the credibility of L.H. and her mother on the question of whether L.H. admitted to lying about inappropriate contact with Petitioner. While the affidavit states that L.H. admitted no inappropriate conduct took place, L.H. testified that “she never told her mother that she made it up” and that “her mother never asked her if she was telling the truth.” Id. Based on a holistic review of the evidence before this Court, by way of the OCCA's account, the undersigned concludes the affidavit is not strong enough to undermine confidence in the verdict.
Petitioner has not demonstrated he is entitled to the actual innocence exception to the § 2244 limitations period.
E. Conclusion.
Because Petitioner cannot overcome this procedural bar, his petition is untimely filed under § 2244.
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court grant Respondent's motion to dismiss the petition for habeas relief as untimely filed.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before October 19, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.