Opinion
CIV-24-104-PRW
03-19-2024
TIMOTHY FITZGERALD TOLLIVER, Petitioner, v. CAMERON HARVENEK, Respondent.
REPORT AND RECOMMENDATION
SHONT. 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 Patrick R. Wyrick 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 Court DISMISS the Petition as untimely.
I. PROCEDURAL BACKGROUND
On April 9, 2021, in Oklahoma County District Court Case No. CF-2020-1756, Petitioner entered a guilty plea to four criminal felony charges. (ECF No. 1:1; 1-1:1). On April 14, 2021, Mr. Tolliver filed a handwritten letter in his case which the Court construed as a Motion to Withdraw the plea. (ECF No. 1-1:1). At an April 20, 2021 hearing on Petitioner's Motion to Withdraw, Mr. Tolliver withdrew his motion and the Court gave him an additional ten days, or until April 30, 2021, to file a Motion to Withdraw. (ECF No. 1-1:1, 3); Okla. Ct. Crim. App. R. 4.2(A) (“In all cases, to appeal from any conviction on a plea of guilty or nolo contendere, the defendant must have filed in the trial court clerk's office an application to withdraw the plea within ten (10) days from the date of the pronouncement of the Judgment and Sentence[.]”). Petitioner waited until July 13, 2022, however, to file a Motion to Withdraw, which the Oklahoma County District Court denied on January 11, 2023. See ECF No. 1-1.
On April 10, 2023, Petitioner filed a certiorari appeal with the Oklahoma Supreme Court, who transferred the matter to the Oklahoma Court of Criminal Appeals (OCCA). (ECF No. 1-1:4). On April 28, 2023, in Case No. C-2023-368, the OCCA dismissed Petitioner's appeal, finding that he had failed to properly invoke the Court's jurisdiction. See ECF No. 1-1:4.
On June 5, 2023, in the Oklahoma County District Court, Petitioner filed an Application for Post-Conviction relief seeking an appeal out of time, which that court denied on July 20, 2023. See ECF No. 1-1:4. On August 14, 2023, Mr. Tolliver filed an appeal of the district court's denial, and the OCCA denied the same on February 23, 2024. See Application for an Appeal out of Time, Tolliver v. State of Oklahoma, Case No. PC-2023-674 (Okla. Ct. Crim. App. Aug. 14, 2023); Order Affirming Denial of Post-Conviction Application Requesting an Appeal out of Time, Toliver v. State of Oklahoma, Case No. PC-2023-674 (Okla. Ct. Crim. App. Feb. 23, 2024). On January 29, 2024, Mr. Tolliver filed a habeas Petition in this Court. (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
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief....” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and she has an opportunity to present her position by filing an objection to the Report and Recommendation. Further, when raising a dispositive 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. .. .” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation). 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). 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).
Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing. See Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015). As stated, because Mr. Tolliver did not file an appeal within the ten-day window to do so, his conviction became final on April 30, 2021. See supra; see Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (“the finality of a state-court judgment is expressly defined by statute as the conclusion of direct review or the expiration of the time for seeking such review.”) (citing § 2244(d)(1)(A)).
As discussed, after the ten-day window expired, Mr. Tolliver filed a Motion to Withdraw the plea, followed by a certiorari appeal and an Application for Post-Conviction relief seeking an appeal out of time-all prior to filing the habeas Petition. See supra. "[W]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final' for purposes of § 2244(d)(1)(A). In such a case, 'the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review' must reflect the conclusion of the out-of- time direct appeal, or the expiration of the time for seeking review of that appeal.” Jimenez, 555 U.S. at 121. But here, the conviction's finality date is not extended because the OCCA denied Petitioner's request for an appeal out of time. See supra.
Thus, without tolling, Petitioner's one-year habeas statute of limitations to file a habeas petition expired on May 2, 2022. But Mr. Tolliver filed the habeas petition on January 29, 2024, over twenty months after the limitations period had expired. (ECF No. 1). Thus, absent any statutory or equitable tolling, or other exception applies, the action is untimely.
Because the one-year limitations period fell on Saturday, April 30, 2021, the Petitioner had until the following Monday, May 2, 2021, to file his habeas petition. See Fed.R.Civ.P. 6(a)(1)(C); Alexander v. Zavaras, 424 Fed.Appx. 738, 740, n. 1 (10th Cir. 2011).
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). On June 5, 2023, Petitioner filed an application for post-conviction relief seeking an appeal out of time, followed by an appeal. See supra. But Mr. Tolliver 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 May 2, 2022. 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 or another exception applies, the Petition is untimely.
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. Tolliver has made no argument that he is entitled to equitable tolling. See ECF No. 1. Thus, 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. Bell, 547 U.S. 518, 538 (2006). “[P]risoners 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. Bell, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord McQuiggin 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. Tolliver 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. Tolliver's deadline for filing his habeas petition expired on May 2, 2022. See supra. But Mr. Tolliver filed the habeas Petition on June 5, 2023, well after the limitations period had expired. Petitioner is not entitled to equitable tolling and the actual innocence exception does not apply. Thus, the Court should dismiss the Petition as untimely.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED as untimely. Adoption of this recommendation will moot the Petitioner's Motion to Appoint Counsel (ECF No. 2).
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 5, 2024, 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.