Opinion
CIV-20-1059-PRW
11-10-2020
CHESTER CRELLER, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed this action seeking relief under 28 U.S.C. § 2254. Petitioner is challenging his convictions for Rape in the First Degree and Forcible Oral Sodomy. Muskogee County District Court, Case No. CF-2000-588. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the action be dismissed without prejudice as untimely.
I. Background
On May 21, 2001, following a jury trial, Petitioner was found guilty of Rape in the First Degree, Forcible Oral Sodomy, and Incest. Doc. No. 1 (“Pet.”) at 1. On August 6, 2001, the Petitioner was sentenced to 100 years imprisonment for Rape in the First Degree, 20 years imprisonment for Forcible Oral Sodomy, and 10 years imprisonment for Incest. Id.; Doc. No. 2-1 at 1. Petitioner filed a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”). Pet. at 2. On September 20, 2002, the OCCA affirmed Petitioner's convictions and sentences for both Rape and Forcible Sodomy but found his conviction for both Rape and Incest violated double jeopardy principles. Doc. No. 2-1 at 2. Thus, his conviction for Incest was reversed and remanded with instructions to dismiss. Id.
Petitioner filed an application for post-conviction relief on September 19, 2003, raising ineffective assistance of trial counsel based on trial counsel's failure to interview, subpoena, and call certain witnesses. Pet. at 3; Doc. No. 2-3 at 1. The state district court denied the application on October 27, 2003, and the OCCA affirmed the same on February 4, 2004. Pet. at 3; Doc. Nos. 2-2, 203. Petitioner filed a second application for post-conviction relief on April 7, 2006, raising the same claim he raised in his initial application. Pet. at 3; Doc. Nos. 2-4 at 1-2, 2-5 at 2. The state district court denied the same on May 8, 2006. Pet. at 4; Doc. No. 2-4 at 3.
Petitioner filed a third application on August 29, 2016, raising twelve grounds for relief. Pet. at 4; Doc. No. 2-5 at 2-4. The state district court denied Petitioner's third application on February 28, 2019. Pet. at 4; Doc. No. 2-5 at 4-7. Petitioner appealed the denial to the OCCA, which affirmed the denial on October 4, 2019. Doc. No. 2-6. Petitioner filed the current action on October 19, 2020. In this action, Petitioner primarily raises the same claims he raised in his applications for post-conviction relief. Pet. at 6-29; Doc. Nos. 2-2, 2-3, 2-4, 2-5, 2-6.
II. Screening Requirements
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 he has an opportunity to present his 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, 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).
III. Statute of Limitations
A. Applicable Limitations Period
Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must seek habeas relief within one-year and said limitations period generally begins to run from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Petitioner was sentenced on August 6, 2001, following a jury trial. Pet. at 1. Petitioner filed an appeal and two of his convictions and sentences were affirmed on September 20, 2002. Doc. No. 2-1. Petitioner's convictions therefore became “final” under 28 U.S.C. § 2244(d)(1)(A) on December 19, 2002, when the time for Petitioner to seek certiorari review, which he did not do, with the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (“Under the statute, a petitioner's conviction is not final and the one-year limitation period for filing a federal habeas petition does not begin to run until . . . ‘after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed.'”) (quoting Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999)).
See Sup. Ct. R. Rule 13(1) (providing that applicant for certiorari has 90 days from date of judgment to file petition for writ of certiorari); 28 U.S.C. § 2101(d).
Thus, Petitioner had one year beginning on December 20, 2002, to file his federal habeas petition commensurate with 28 U.S.C. § 2244(d)(1)(A). Absent statutory or equitable tolling, his one-year filing period expired on Monday, December 22, 2003. Petitioner did not file this action until October 19, 2020.
B. Statutory Tolling
28 U.S.C. § 2244(d)(2) 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” will generally toll the statute of limitations applicable to filing a habeas petition. (emphasis provided). As noted, Petitioner filed his first application for post-conviction relief on September 19, 2003, tolling his statute of limitations. Pet. at 3. Thus, his statute of limitations was tolled from that date until the OCCA affirmed the state court's denial of his application on February 4, 2004. Doc. No. 2-3.
The statute of limitations began to run again on February 5, 2004, when Petitioner had 95 days left to timely seek habeas corpus relief. Petitioner filed his second application for post-conviction relief on April 7, 2006, well after the expiration of his 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 [the Antiterrorism and Effective Death Penalty Act] will toll the statute of limitations.”). Thus, Petitioner is not entitled to further statutory tolling.
C. Equitable Tolling
28 U.S.C. “§ 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Generally, equitable tolling is warranted only in situations where the petitioner was actively misled or is prevented in some extraordinary way from asserting his rights. Id. at 418-19.
Petitioner does not allege that he was prevented from pursuing a writ of habeas corpus in a timely manner. The only obstacle he references is that his post-conviction counsel did not send him the May 8, 2006 state court order denying his second application for post-conviction relief until June 2006. Pet. at 4. However, at that point his statute of limitations to seek a writ of habeas corpus had already expired. Moreover, Petitioner did not file the current action seeking habeas relief for over fourteen more years.
The Supreme Court has also held that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, such tolling of the limitations period for actual innocence is appropriate only in rare instances in which the petitioner shows that “in light of the new evidence [presented by the petitioner], no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Petitioner does not set forth new evidence indicating he was innocent of the underlying crimes in this matter. Instead, he asserts various evidentiary arguments and contends the State failed to establish the elements of each crime beyond a reasonable doubt. Pet. at 6-23.
In Grounds Eight and Nine, Petitioner characterizes certain evidence as “new.” However, the evidence is years old and/or would, at best, establish legal, rather than actual, innocence. For example, in his eighth ground for relief, Petitioner relies on letters he received from the victim in 2012 in which “she begs [Petitioner] to admit to doing” various acts of sexual abuse to her and “says that if [he does], she will burn the letter & not let anyone see it.” Pet. at 24; Doc. No. 2-7 at 30-34. Petitioner claims this letter establishes that he is innocent because the 1999 medical examinations of his victim did not support that these sexual acts took place. Pet. at 24.
The letters Petitioner references are from 2012 and therefore, do not render these claims timely. Pet. at 24; Doc. No. 2-7 at 30-34. Additionally, as noted, “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'” McQuiggin, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. at 329); see House v. Bell, 547 U.S. 518, 538, (emphasizing that the Schlup standard is “demanding” and seldom met). “The gateway should open 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). Having reviewed the March 2012 letter, the undersigned concludes it does not meet this standard for actual innocence.
In his ninth ground for relief, Petitioner does not rely on any additional “new” evidence and merely argues legal innocence, contending his constitutional rights were violated during his trial and attacking the credibility of the State's narrative offered at trial. Pet. at 26-29. “To serve as a basis for equitable tolling of the limitations period, ‘actual innocence means factual innocence, not mere legal insufficiency.'” Lowery v. Bryant, 760 Fed.Appx. 617, 619 (10th Cir. 2019) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
Thus, Petitioner has not alleged any extraordinary circumstances that warrant the application of equitable tolling principles to extend the limitations period. Because the Petition is not timely filed, the Court should decline to review the merits and dismiss the action.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be dismissed without prejudice as untimely. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 30 th, 2020. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. 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.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.