Opinion
Case No. CIV-20-194-R
03-25-2020
CHRISTOPHER ALLEN WILLIS, Petitioner, v. JANET DOWLING, Respondent.
REPORT AND RECOMMENDATION
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 David L. Russell 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 action be DISMISSED on filing as untimely.
I. PROCEDURAL BACKGROUND
On May 29, 2009, Petitioner entered a blind plea of guilty in Oklahoma County Court Case CF-08-5380 to the charge of first-degree burglary. (ECF No. 1:1; 1-5). On August 26, 2009, Petitioner was sentenced to ten years' incarceration. (ECF Nos. 1:1; 1-5). Petitioner did not seek to withdraw the plea, and thus failed to perfect a direct appeal. (ECF No. 1:2); see York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003).
Petitioner filed his first Application for Post-Conviction Relief in the Oklahoma County District Court on April 30, 2012 and on September 14, 2012, that court denied relief. (ECF Nos. 1:2; 1-9; 1-10). On October 1, 2012, Mr. Willis filed a second Application for Post-Conviction Relief in the district court, requesting an out-of-time appeal of the Oklahoma County District Court's denial of his first post-conviction application. (ECF Nos. 1:3; 1-13:2). The district court recommended an appeal out-of-time and the Oklahoma Court of Criminal Appeals ("OCCA") granted the recommendation. (ECF Nos. 1:3; 1-13:2). On June 17, 2013, the OCCA affirmed the denial of Petitioner's first post-conviction application. (ECF No. 1-11).
On March 18, 2016, Mr. Willis filed a Third Application for Post-Conviction Relief in the Oklahoma County District Court. (ECF Nos. 1:3; 1-6). On April 6, 2016, the Oklahoma County District Court denied relief, and on September 12, 2016, the OCCA affirmed the denial. (ECF Nos. 1-7 & 1-8).
On September 18, 2017, Mr. Willis filed a Fourth Application for Post-Conviction Relief in the Oklahoma County District Court. (ECF No. 1-12). On August 20, 2019, the Oklahoma County District Court denied relief, and on January 13, 2020, the OCCA affirmed the denial. (ECF Nos. 1-13 & 1-14). Petitioner filed his habeas petition on March 2, 2020. (ECF No. 1).
II. SCREENING REQUIREMENT
District courts must review habeas petitions promptly and summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4, Rules Governing Section 2254 Cases. Additionally, "district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. 198, 209 (2006). However, "before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Day, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising the 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 or by dismissing the petition as time barred." Day, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 F. App'x 860, 861 n.1 (10th Cir. 2007). 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;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).
(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.
Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. Id. 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 F. App'x 676, 678 (10th Cir. 2015). Because Mr. Willis did not appeal from his plea, his conviction became final ten days following sentencing, on September 7, 2009. See supra. Petitioner concedes this point. See ECF No. 1:39 ("Petitioner concedes that his Oklahoma conviction became final 10 days after August 26, 2009."). Thus, without tolling, Petitioner's one-year habeas statute of limitations expired on September 7, 2010. Petitioner filed the habeas petition on March 2, 2020, over nine years after the limitations period had expired. (ECF No. 1:1).
Because the tenth day following sentencing fell on Saturday, September 5, 2009, Petitioner's conviction was not considered "final" for purposes of § 2244(d)(1)(A) until the following Monday, September 7, 2009. See Pearson v. Ward, 184 F. App'x 760, 761, 2006 WL 1660029, at *1, n. 1 (10th Cir. 2006).
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 7, 2010, Mr. Willis filed a Motion for Judicial Review in the Oklahoma County District Court. (ECF No. 1:39). The pendency of a "properly filed" motion for judicial review tolls the limitations period under § 2244(d)(2). See Doby v. Dowling, 632 F. App'x 485, 488 (10th Cir. 2015). Because the Motion for Judicial Review was denied on June 9, 2010, Petitioner was entitled to two days of statutory tolling, extending the habeas deadline to September 9, 2010. And while Mr. Willis filed a series of post-conviction applications beginning April 30, 2012, he is not entitled to any period of tolling for the post-conviction applications because they were all filed after the AEDPA limitations period had already expired. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 F. App'x 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 is applicable, the § 2254 claim is untimely.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2008-5380.
See supra. --------
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).
In what appears to be an attempt at arguing an entitlement to equitable tolling, Petitioner alleges that: (1) on January 1, 2011, he "tried to get the available transcripts ... but [they] were denied at public expense" and (2) he did not receive the help he was "reasonably expecting" during his participation in the "T.A.S.K. program." (ECF No. 1:39). But neither of these situations would qualify as an "extraordinary circumstance" which would entitle Petitioner to any equitable tolling. See Levering v. Dowling, 721 F. App'x 783, 788 (10th Cir. 2018) ("[N]either the difficulty in obtaining trial court transcripts nor [petitioner's] limited time in the law library are 'extraordinary circumstances' that would justify the use of equitable tolling.").
Based on the lack of "extraordinary circumstances," the Court should conclude that Petitioner has not satisfied his burden to prove that he is 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. Willis alleges that he is actually innocent of first-degree burglary because an insufficient factual basis existed for the plea. (ECF No. 1:6-10, 16-17, 40). According to Petitioner, although the Information had charged him with and the conviction and sentence was for first-degree burglary, under the "factual basis for your plea" section of the plea form, Petitioner wrote: "On September 8, 2008, I committed the offense of burglary in the second degree..." (ECF No. 1:6-10, 16-17, 40) (emphasis added). Mr. Willis also argues that he never entered the home where the alleged burglary occurred, entry being an essential element for first-degree burglary. (ECF No. 1:9-10); see 21 O.S. § 1431. But these allegations are insufficient to meet the requirements necessary to establish actual innocence because neither of Petitioner's arguments are based upon any "new" evidence. The summary of facts form on which Petitioner relies, along with the fact that Petitioner alleges that he did not "enter" the home where the alleged burglary had occurred were facts known to Petitioner well within the time period for filing his habeas petition.
Furthermore, despite the label of "actual innocence," Petitioner's arguments are grounded in legal, rather than factual, innocence. See Kunis v. Allbaugh, 2018 WL 8130615, at *6 (W.D. Okla. Sept. 6, 2018) (characterizing habeas petitioner's claim that the factual basis for his plea was insufficient to support a conviction for the charged offense as one of "legal, rather than factual innocence."). The Tenth Circuit has consistently ruled that legal, as opposed to factual, innocence does not provide a basis to conclude a miscarriage of justice may occur without federal habeas review. In Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the Tenth Circuit explained:
[In order to establish a fundamental miscarriage of justice,] a criminal defendant must make a colorable showing of factual innocence. See Herrera v. Collins, 506 U.S. 390, 404 [ ] (1993). "The exception is intended for those rare situations 'where the State has convicted the wrong person of the crime.... [Or where] it is evident that the law has made a mistake.' " Klein
v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (citation omitted). [Petitioner] does not claim that he is innocent of killing Raymond Matthews. Rather, he claims that he is not guilty of first degree murder because he was intoxicated and acted in self defense. However, these arguments go to legal innocence, as opposed to factual innocence.Id. at 923. Thus, Petitioner's allegations of "actual innocence" are insufficient to allow an equitable exception to the time-bar in Section 2244(d)(1).
VII. SUMMARY
Under § 2244(d)(1)(A), Petitioner's conviction became final and the one-year habeas limitations period began on September 7, 2009. Petitioner is entitled to 2 days of statutory tolling under 28 U.S.C. § 2244(d)(2) for the period related to his Motion for Judicial Review. Petitioner is not entitled to any statutory tolling for any of his post-conviction applications because they were filed after the expiration of the limitations period. Mr. Willis is not entitled to any equitable tolling because he has failed to present any "extraordinary circumstance" which prevented timely filing. Finally, Mr. Willis is not entitled to any period of tolling under the "actual innocence" exception because he only argues legal, not factual, innocence and he has failed to present any "new" evidence in support of his claim. With the two days of statutory tolling, Petitioner's habeas limitations period expired on September 9, 2010. Because Petitioner waited until March 2, 2020 to file his petition, the Court should dismiss it 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.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 13, 2020, 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.
ENTERED on March 25, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE