Opinion
CIV-22-993-D
07-06-2023
JOHNNY WILLIAM BURNETT, Petitioner, v. JAMES COTTON,[1]et al., Respondents.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Johnny William Burnett (“Petitioner”), a state prisoner proceeding pro se, seeks a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). Respondent James Cotton filed a Motion to Dismiss Petition for Writ of Habeas Corpus as Time-Barred by the Statute of Limitations and Brief in Support. (Docs. 12, 13). Plaintiff responded (Doc. 15), and the Motion is at issue. For the reasons set forth fully below, the undersigned recommends that Respondent's Motion to Dismiss (Doc. 12) be DENIED.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Procedural History and the Instant Motion
A. Petitioner's Cleveland County Sentence
On March 27, 2017, Petitioner was convicted after a jury trial in Cleveland County District Court of two counts of lewd molestation or indecent acts to a child under 16 (Counts One and Two) and two counts of forcible oral sodomy (Counts Seven and Eight). (Doc. 1, at 1); see also Cleveland County District Court, Case No. CF-2015-460.Petitioner was sentenced to 25 years of imprisonment on Counts One and Two and 20 years of imprisonment on Counts Seven and Eight, to be served consecutively, for a total of 45 years of imprisonment. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF-2015-460 (Docket Sheet) (last visited July 5, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. 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).
On April 4, 2017, Petitioner appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (“OCCA”), arguing that the trial court erred in admitting the testimony of child accommodation syndrome and that the introduction of victim impact evidence led to the imposition of an excessive sentence. (Doc. 1, at 2); see also OCCA, Case No. F-2017-348. On July 19, 2018, the OCCA affirmed Petitioner's conviction and sentence. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2017-348 (Docket Sheet) (last visited July 5, 2023).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On June 12, 2019, Petitioner filed an Application for Post-Conviction Relief (“Application”) in the Cleveland County District Court. (Doc. 1, at 3; Doc. 13, at Ex. 4); see also Cleveland County District Court, Case No. CF-2015-460 (see footnote 3). On September 24, 2019, Petitioner petitioned the OCCA for a writ of mandamus directing the state district court to rule on his Application, but the OCCA declined jurisdiction and dismissed his petition on November 22, 2019. (Doc. 13, at Exs. 6-7); see also OCCA, Case No. MA-2019-698.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2019-698 (Docket Sheet) (last visited July 5, 2023).
Petitioner filed various motions, responses, supplements, and amendments to his Application. (See, e.g., Doc. 13, at Exs. 8, 10, 20, 22, 24). The Application was denied by the state district court on November 10, 2021. (Id. at Ex. 25). At the same time, the state district court also denied Petitioner's various pending motions except Petitioner's request for DNA testing. (Id. at 3-4). The state district court then denied Petitioner's request for DNA testing on November 23, 2021. (Id. at Ex. 28). Petitioner timely appealed the denial of his request for DNA testing, and the OCCA affirmed the denial of his motion. (Id. at Exs. 29, 32, 35); see also OCCA, Case No. PC-2022-59.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2022-59 (Docket Sheet) (last visited July 5, 2023).
On June 22, 2022, Petitioner again petitioned the OCCA for a writ of mandamus directing the state district court to rule on his Application. (Doc. 13, at Ex. 36); see also OCCA, Case No. MA-2022-559.The OCCA directed the state district court to respond to the petition, (id. at Ex. 37), and the state district court responded on June 30, 2022, by referencing and attaching its order dated November 10, 2021, denying Petitioner's Application (id. at Ex. 39).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2022-559 (Docket Sheet) (last visited July 5, 2023).
On July 12, 2022, Petitioner filed a motion for appeal out-of-time with the state district court alleging he did not receive a copy of the court's November 10, 2021, order denying his Application until July 1, 2022. (Id. at Ex. 40, at 2). On July 25, 2022, Petitioner requested the state district court clerk provide him the certificate of mailing of the order denying his Application; the court clerk responded that they were unable to find it. (Id. at Exs. 43, 44). On August 10, 2022, before the state district court ruled on his motion, Petitioner preemptively filed a motion for appeal out-of-time with the OCCA and then on August 19, 2022, a petition in error challenging the denial of his Application. (Id. at Exs. 45, 46); see also OCCA, Case No. PC-2022-681.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2022-681 (Docket Sheet) (last visited July 5, 2023).
On August 25, 2022, the state district court granted Petitioner's motion for appeal out-of-time, noting that “the deadline was missed through no fault of [Petitioner's] own.” (Doc. 13, at Ex. 47) (emphasis added). However, the OCCA found that “Petitioner's pleading requesting an appeal out-of-time does not contain a copy of a trial court order or records sufficient to prove he sought relief in the District Court,” and the OCCA declined jurisdiction and dismissed his petition in error on October 14, 2022. (Id. at Ex. 48). Petitioner filed a notice of appeal of that decision on November 9, 2022, (id. at Ex. 49), but a review of the state court records, generally and in this matter, shows that Petitioner has not further pursued his appeal before the appellate court. See, e.g., OCCA, Case No. PC-2022-681 (see footnote 8).
C. The Petition
On November 14, 2022,Petitioner filed the instant Petition, challenging his Cleveland County District Court conviction and sentence. (Doc. 1, at 14). Petitioner alleges eight grounds for relief:
See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
(1) the court erred in admitting the testimony of child accommodation syndrome since the conditions for admission were not met;
(2) “the improper introduction of victim impact evidence caused the jury to impose excessive sentencing;”
(3) ineffective assistance of appellate counsel;
(4) ineffective assistance of trial counsel;
(5) judicial misconduct through the suppression of evidence and witness testimony;
(6) prosecutorial misconduct;
(7) lack of jurisdiction “because all of Oklahoma is Indian Country;” and
(8) actual and factual innocence.(Id. at 5-6, 8-9, 15-17). For relief, Petitioner seeks to have his sentence vacated, his case dismissed, and immediate release from prison. (Id. at 14).
II. Analysis
In his Motion to Dismiss, Respondent argues that Petitioner's grounds are time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (See Doc. 13). Although the instant Petition is untimely, the undersigned finds that Petitioner is entitled to equitable tolling.
A. Petitioner Did Not Timely File His Petition.
AEDPA established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.Id. AEDPA 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. at § 2244(d)(2).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[,] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). A prisoner has 90 days from the entry of the court of appeals judgment to file a writ of certiorari to the Supreme Court. Habteselassie v. Novak, 209 F.3d 1208, 1209 (10th Cir. 2000). The OCCA affirmed Petitioner's conviction and sentence on direct appeal on July 19, 2018, and Petitioner did not file a writ. Cleveland County District Court, Case No. CF-2015-460 (see footnote 3). Thus, Petitioner's conviction and sentence became final on October 17, 2018. The one-year statute of limitations began the day after Petitioner's conviction became final. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Accordingly, Petitioner had until October 18, 2019, to file his habeas petition, absent any tolling event. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Petitioner's Application for Post-Conviction Relief, filed on June 12, 2019, served to toll the one-year statute of limitations with 128 days remaining. (Doc. 13, at Ex. 4). See 28 U.S.C. § 2244(d)(2). The Application was denied by the state district court on November 10, 2021. (Doc. 13, at Ex. 25). Petitioner then had 30 days to appeal the denial to the OCCA, (id. at 4); but he did not do so. The one-year statute of limitations thus resumed running on December 11, 2021, Harris, 642 at 906 n.6, and expired 128 days later, on April 18, 2022. But Petitioner did not file his Petition until November 14, 2022. (Doc. 1, at 14). Thus, the Petition is untimely under 28 U.S.C. § 2244.
See Okla. Stat. tit. 22, § 1087; see also Armah v. Dowling, 2021 WL 3824680, at *3 (N.D. Okla. Aug. 26, 2021), certificate of appealability denied, 2022 WL 175849 (10th Cir. Jan. 20, 2022), cert. denied, 142 S.Ct. 2722 (2022) (“Even though he did not perfect a postconviction appeal, [Petitioner] is entitled to statutory tolling for the 30-day period in which he could have done so.”) (citing Gibson v. Klinger, 232 F.3d 799, at 803-04 (10th Cir. 2000)).
Petitioner's other efforts to seek relief, both before and after November 14, 2022, did not serve to toll his one-year statute of limitations. See, e.g., Woodward v. Cline, 693 F.3d 1289, 1292-94 (10th Cir. 2012) (holding that state court motion for DNA testing does not qualify as “collateral review” and no tolling occurs); 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.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[Petitioner's] state application [for postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”).
B. Petitioner Is Entitled to Equitable Tolling.
However, the undersigned finds that Petitioner is entitled to equitable tolling of the statute of limitations. The Tenth Circuit has determined that 28 U.S.C. § 2244(d) is not jurisdictional and “may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). To obtain equitable tolling a petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing” of his federal habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). This is a “‘strong burden'” that requires the petitioner “‘to show specific facts to support his claim of extraordinary circumstances and due diligence.'” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)). Examples of the “rare and exceptional circumstances” for equitable tolling include “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.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation marks and citations omitted). “Simple excusable neglect is not sufficient.... [A] petitioner must diligently pursue his federal habeas claims; a claim of insufficient access to relevant law, such as AEDPA, is not enough to support equitable tolling.” Id. (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), and Miller, 141 F.3d at 978).
1. Petitioner's Extraordinary Circumstance
Petitioner claims that he did not receive the state district court order denying his Application for Post-Conviction Relief until July 1, 2022. (Doc. 1, at 20). He has submitted a sworn statement to that effect. (See Doc. 15, at Ex. 19, at 2). Both parties have submitted evidence that supports Petitioner's contention that the state district court clerk did not timely mail Petitioner a copy of the order denying his Application. (See Doc. 13, at Exs. 44, 45; Doc. 15, at Exs. 21, 23). Petitioner's June 22, 2022, attempt to seek a writ of mandamus from the OCCA directing the state district court to rule on his Application, see Section I(B), further supports his contention that he was unaware that such an order had already been issued by the state district court. Most compelling, in response to this same argument, the state district court granted Petitioner an appeal out-of-time, finding “the deadline was missed through no fault of [Petitioner's] own.” (Doc. 13, at Ex. 47) (emphasis added). The undersigned thus finds that Petitioner's delayed receipt of the state district court's order denying his Application is an “extraordinary circumstance” that supports equitable tolling. See Ellis v. Parker, CIV-10-498-W, 2011 WL 1301407, at *5 (W.D. Okla. Feb. 28, 2011) (noting that habeas petitioner demonstrated a delay in receipt of the district court's order denying postconviction relief supported by: (1) evidence regarding a lack of proof that the petitioner had been mailed the denial order and (2) the state court's recommendation that the petitioner be granted an appeal out-of-time, which constituted an “extraordinary circumstance” to support equitable tolling).
2. Petitioner's Diligence
“[A] prisoner's lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner has acted diligently in the matter.” Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001). Petitioner filed his Application for Post-Conviction Relief on June 12, 2019, and petitioned the OCCA for a writ of mandamus ordering the state district court to decide the Application three months later. See Section I(B). Over three years elapsed from the filing of the Application until the Petitioner received notice, on July 1, 2022, of the state district court's order denying the Application. During that time, Petitioner filed various motions related to his Application, including a second petition for a writ of mandamus from the OCCA. Upon receiving the order denying his Application on July 1, 2022, Petitioner filed a motion on July 12, 2022, in the state district court seeking leave to appeal that order. He also filed the same motion in the OCCA on August 10, 2022, plus a Petition in Error on August 19, 2022, and two months later an appeal of the OCCA's order declining jurisdiction. The undersigned finds that Petitioner has demonstrated the diligence necessary to warrant equitable tolling. See Loftis v. Chrisman, 812 F.3d 1268, 1275 (10th Cir. 2016) (finding equitable tolling warranted because “petitioner made reasonable, diligent efforts to comply with procedural rules which provided no clear guidance for the unusual circumstances in which, through no fault of his own, he was situated, and where the state district court itself caused him to believe that his efforts had been sufficient to ensure state review of his habeas claims”) (citing Burger v. Scott, 317 F.3d 1133 (10th Cir. 2003)).
The undersigned finds that Petitioner's one-year statute of limitations was tolled from the filing of his Application on June 12, 2019, until 30 days after the state district court granted his appeal out-of-time, or until September 24, 2022. (See footnote 10).His one-year statute of limitations resumed running on September 25, 2022, Harris, 642 at 906 n.6, leaving Petitioner with 128 days - or until January 31, 2023 - to bring his Petition before this Court. His Petition, filed on November 14, 2022, falls well within that limit and should be allowed to proceed before this Court.
Although Petitioner did seek relief from the OCCA, he does not receive the benefit of statutory tolling during the pendency of that appeal, because his appeal was dismissed for lack of jurisdiction. See Ellis, 2011 WL 1301407, at *3 (“Petitioner is not entitled to statutory tolling for the period of time during which his . . . attempt to appeal the denial of his post-conviction application was pending” because “[t]hat attempt to appeal was not ‘properly filed' as demonstrated by the OCCA's dismissal for lack of jurisdiction.”) (citing Pink v. McKune, 146 Fed. App'x. 264, 266 (10th Cir. Aug. 17, 2005)).
III. Recommended Ruling and Notice of Right to Object
Based on the foregoing, the undersigned recommends that the Court DENY Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as Time-Barred by the Statute of Limitations. (Doc. 12). The undersigned notes that Respondent has reserved the right to argue lack of exhaustion and other procedural bars in a response to the Petition on the merits. (Doc. 13, at 2 n.3).
The undersigned advises Respondent of his right to object to this Report and Recommendation by July 20, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Respondent that failure to make timely objection to this report and recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).