Opinion
Case No. CIV-05-1285-C.
December 30, 2005
REPORT AND RECOMMENDATION
Mr. Dennis Clark seeks habeas relief in connection with his state court convictions, and the Respondents have moved for dismissal on grounds of timeliness. The Court should grant the motion.
The Respondents have moved to dismiss the Oklahoma Attorney General as a party. Motion to Dismiss Petition for Habeas Corpus as Time Barred by the Statute of Limitations at p. 1 n. 1 (Nov. 28, 2005); Brief in Support of Motion to Dismiss Habeas Corpus Petition as Time-Barred by the Statute of Limitations at p. 1 n. 1 (Nov. 28, 2005) ("Brief Supporting Motion to Dismiss"). But Mr. Clark's petition is untimely, and the Court should deny relief regardless of the identity of the respondent. See infra pp. 2-7. Thus, the Court need not decide whether the attorney general is a proper party.
Background
The present action stems from convictions in four state court cases. In Case No. CF-99-630, the Petitioner was convicted following a jury trial. He pled guilty in three other cases: Case Nos. CF-99-5253, CF-00-3126, and CF-02-6309. See Petition Under 28 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody at p. 1 (executed Oct. 31, 2005) ("Petition"); Judgment and Sentence, State v. Clark, Case No. CF-99-630 (Okla. Co. Dist. Ct. entered Dec. 20, 2002); Plea of Guilty and Summary of Facts, State v. Clark, Case Nos. CF-99-5253, CF-00-3126, CF-02-6309 (Okla. Co. Dist. Ct. entered Dec. 20, 2002). The court entered judgments in each case on December 20, 2002, and the Petitioner did not move for withdrawal of the guilty pleas, seek appellate review, or file a petition for certiorari. See Petition at p. 1. Mr. Clark filed the habeas petition in the federal district court no earlier than October 31, 2005.
The federal district court can take judicial notice of the state court records. See St. Louis Baptist Temple, Inc. v. Federal Deposit Insurance Corp., 605 F.2d 1169, 1172 (10th Cir. 1979).
See supra pp. 1-2.
In the petition, Mr. Clark refers only to his failure to appeal in Case No. CF-99-630. See Petition at p. 1. But the state court records in Case Nos. CF-99-5253, CF-00-3126, and CF-02-6309 do not reflect a timely motion to withdraw the guilty plea or a petition for certiorari. See supra note 2.
The habeas petition was file-stamped on November 3, 2005. See Petition at p. 1. But the document contains a verification dated October 31, 2005, and the petition is deemed "filed" when the Petitioner had given it to prison authorities for mailing. See Petition at p. 7; Hoggro v. Boone, 150 F.3d 1223, 1226 n. 3 (10th Cir. 1998). As a result, the Court can assume arguendo that the "filing" date was October 31, 2005. See United States v. Gray, 182 F.3d 762, 766 (10th Cir. 1999) ("Because the only evidence of the date appellant gave his motion to prison authorities for mailing is his certificate of service, which contains a declaration in compliance with 28 U.S.C. § 1746, that he did so on April 21, appellant's motion was timely.").
Timeliness of the Present Action
The present action is untimely because it was initiated after expiration of the limitations period.I. Statute of Limitations
In federal habeas actions, the statute of limitations provides:
(d)(1) 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.
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1)(A)-(D) (2000).
II. The Petitioner's Reliance on 28 U.S.C. § 2244(d)(1)(B)
Although Mr. Clark does not cite 28 U.S.C. § 2244(d)(1)(B), his argument implicates this section. But Subsection 2244(d)(1)(B) only applies when a state-created impediment prevents timely filing. See supra p. 3. Once the impediment is removed, the one-year limitations period begins. See id.
On November 19, 2003, the Petitioner sought to obtain state court records in an effort to file an application for post-conviction relief. See Motion for Transcript at Public Expense, Clark v. State, Case Nos. CF-99-630, CF-99-5253, CF-00-3126, CF-02-6309 (Okla. Co. Dist. Ct. Nov. 19, 2003). On November 23, 2003, the state court ordered provision of certain records to the Petitioner. See Brief in Support of Habeas Corpus Petition at pp. 1, 2, 4, 5 (Dec. 2, 2005) ("Petitioner's Response"); To Clarify to This Court that the One Year Was Not in Violation as Aledged [sic] at p. 1, Ex. 1 (Dec. 8, 2005) ("Petitioner's Motion to Clarify"). According to Mr. Clark, the court clerk did not comply with the order until January 27, 2005. Petitioner's Response at pp. 2, 4; Petitioner's Motion to Clarify at p. 1. As a result, the Petitioner urges the existence of a state-created impediment for the fourteen months that he was without the records. Petitioner's Response at pp. 1, 2, 4, 5; Petitioner's Motion to Clarify at p. 1. The Petitioner's argument is invalid.
The Tenth Circuit Court of Appeals rejected a similar argument in Weibley v. Kaiser, 50 Fed. Appx. 399 (10th Cir. Nov. 6, 2002) (unpublished op.). There the petitioner argued that the one-year limitations period should be equitably tolled because he was "`continually denied' his legal records and transcripts. . . ." Weibley v. Kaiser, 50 Fed. Appx. at 402. The appellate court construed the argument as one alleging a state-created impediment under 28 U.S.C. § 2244(d)(1)(B). Id. at 403. The court rejected the argument, stating: "Weibley's claim is insufficient because he does not allege specific facts that demonstrate how his alleged denial of these materials impeded his ability to file a federal habeas petition." Id. Weibley v. Kaiser is persuasive. See Tenth Cir. R. 36.3(B). Like the petitioner in Weibley, Mr. Clark has not shown how the alleged denial of the records impeded his ability to file a federal habeas petition. As a result, the Court should reject the Petitioner's reliance on Section 2244(d)(1)(B).
III. Applicability of 28 U.S.C. § 2244(d)(1)(A)
Under 28 U.S.C. 2244(d)(1)(A), Mr. Clark had one year from the date on which the judgments became final to file a federal habeas petition. See supra p. 3. This period ended on December 30, 2003.
A. Computation of the Applicable Period
As noted above, the judgments were entered on December 20, 2002. See supra p. 2. In all four cases, Mr. Clark had ten days to seek relief, either by filing a notice of intent to appeal one conviction or seeking withdrawal of the guilty pleas in three other cases. See Rules 2.1(B), 2.5(A), Rules of the Oklahoma Court of Criminal Appeals (ten days to file a written notice of intent to appeal); Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals (ten days to file a motion to withdraw the guilty plea). He did not appeal or move for withdrawal of the pleas, and the convictions became "final" on December 30, 2002. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding that for purposes of the limitations period under 28 U.S.C. § 2244(d), an Oklahoma conviction following a guilty plea became final ten days after entry of the judgment and sentence). Thus, in the absence of tolling, the limitations period would have expired on December 30, 2003. See 28 U.S.C. § 2244(d)(1)(A) (2000).
See supra p. 2 note 4.
B. Statutory Tolling
Under certain circumstances, federal law authorizes tolling of the limitations period. These circumstances are not present here.
The relevant statute provides: "The time during which a properly filed application for State post-conviction 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." Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(2) (2000).
Mr. Clark waited until February 22, 2005, to seek collateral review through the filing of a state habeas petition. See Brief Supporting Motion to Dismiss, Ex. 1. By then, the limitations period would already have expired in the absence of equitable tolling. See supra p. 5. Thus, the limitations period was not tolled under 28 U.S.C. § 2244(d)(2) by the state habeas petitions. See Rowe v. LeMaster, 225 F.3d 1173, 1174-76 (10th Cir. 2000) (state habeas petition which was filed after the limitations period would otherwise have passed did not result in tolling under 28 U.S.C. § 2244(d)(2)).
Mr. Clark apparently filed three habeas petitions in state court, the first having been filed on February 22, 2005. See Brief Supporting Motion to Dismiss at p. 2, Ex. 1 2.
C. Equitable Tolling
Equitable tolling is unjustified here.
The limitations period may be subject to equitable tolling "in rare and exceptional circumstances. . . ." York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003). Mr. Clark attributes his delay to the inability to obtain the relevant state court records until January 27, 2005. See supra p. 4. But this allegation is deficient for two reasons.
First, an inmate's lack of state court records does not justify equitable tolling.
See United States v. Banuelos-Munoz, 182 F.3d 933, 1999 WL 314616, Westlaw op. at 2 (10th Cir. May 19, 1999) (unpublished op.) (disallowing equitable tolling of the limitations period based on obstacles faced by the petitioner in obtaining a transcript in part because the facts supporting his claims had not depended on the transcript); see also United States v. Pedraza, 166 F.3d 349, 1998 WL 802283, Westlaw op. at 3 (10th Cir. Nov. 18, 1998) (unpublished op.) (holding that a federal prisoner was not entitled to equitable tolling of the limitations period in 28 U.S.C. § 2255 based on the unavailability of a transcript); accord Brown v. Cain, 112 F. Supp. 2d 585, 586-87 (E.D. La. 2000) (rejecting a claim of equitable tolling based on a delay in obtaining transcripts, as the petitioner had "experienced all the pretrial proceedings and the full trial; thus, the legal arguments should have been apparent to [him] without the transcripts"), aff'd, 239 F.3d 365, 2000 WL 1741564 (5th Cir. Nov. 7, 2000) (unpublished op.); Fadayiro v. United States, 30 F. Supp. 2d 772, 780 (D.N.J. 1998) ("The delay in the receipt of free transcripts . . . is not an `extraordinary circumstance' justifying equitable tolling of the limitations period established by the AEDPA.").
Second, the Petitioner cannot show the diligence necessary for equitable tolling. He states that he did not receive the relevant state court documents until January 27, 2005. See supra p. 4. Nonetheless, Mr. Clark waited over ten months after receipt to file his federal habeas petition. See supra p. 2 note 5. The lack of diligence forecloses equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
D. Summary
The Petitioner is not entitled to statutory or equitable tolling. As a result, the limitations period expired on December 30, 2003. Mr. Clark's filing of the habeas petition was untimely and the Court should grant the Respondents' motion to dismiss.
Notice of Right to Object
The parties may seek review by filing an objection with the Clerk of this Court. See 28 U.S.C. § 636(b)(1) (2000). The deadline for objections is January 20, 2006. See W.D. Okla. LCvR 72.1(a). The failure to timely object would foreclose appellate review of the suggested ruling. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").Status of the Referral
The referral to the undersigned is terminated.