Opinion
CIV-24-341-R
07-03-2024
HARRY GARCIA, Petitioner, v. GENTNER DRUMMOND, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a pro se Oklahoma prisoner, seeks habeas relief under 28 U.S.C. § 2254 from his state-court conviction, for which he received a sentence of life with the possibility of parole. Doc. 1, at 1.United States District Judge David L. Russell referred the matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. After a careful examination of the petition, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends dismissal of this habeas corpus petition as untimely filed. See 28 U.S.C. § 2244(d)(1).
Citations to a court document are to its electronic case filing designation and pagination. Apart from adjusted capitalizations and unless otherwise indicated, quotations are verbatim.
Petitioner filed a Motion for Expedited Opinion or in the Alternative for Copy of Current Docket Sheet. Doc. 5. The undersigned recommends the Court dismiss Petitioner's motion as moot.
I. Screening requirement.
Rule 4 requires this Court to promptly review habeas petitions and promptly dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing 28 U.S.C. § 2254 Cases. This rule allows the court to sua sponte raise the timeliness of a petition for writ of habeas corpus if untimeliness is “clear from the face of the petition.” Kilgore v. Att'y Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008); see also Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”). “[B]efore 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. This report and recommendation gives Petitioner notice, and he may present his position by objecting to the report and recommendation. See Allen v. Zavaras, 568 F.3d 1197, 1202-03 (10th Cir. 2009) (upholding district court's sua sponte dismissal of petition for habeas relief for failure to exhaust state court remedies where petitioner's failure to exhaust “was clear from the face of his petition” and noting that in allowing petitioner “an opportunity to respond to a problem obvious from the face of his pleadings,” the district court “abided the Supreme Court's instruction that ‘before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions'” (quoting Day, 547 U.S. at 210)).
II. Procedural history and Petitioner's claims.
On February 13, 2014, a jury convicted Petitioner of first-degree murder. State v. Garcia, No. CF-2013-2987, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2013-2987&cmid=2998711 (last visited June 4, 2024); see also Doc. 1, at 1. The Oklahoma Court of Criminal Appeals affirmed his conviction on July 28, 2015. Garcia v. State, No. F-2014-312, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&numbe r=F-2014-312&cmid=114180 (last visited June 4, 2024); see also Doc. 1, at 2 & Ex. 3. Petitioner sought no post-conviction relief. Doc. 1, at 2-3. Before the Court is Petitioner's undated and unverified pro se § 2254 habeas application, filed in this Court on April 5, 2024. See id. at 9. He alleges several trial errors, including due process errors in jury instructions and rulings on lesser-included offenses, insufficient evidence, and cumulative trial error. Id. at 2-6. The OCCA ruled on all but the ineffective assistance claim. See Garcia, No. F-2014-312, Docket Entry dated July 28, 2015; see also Doc. 1, Att. 3. Petitioner states appellate counsel refused to raise the ineffective assistance claim. Doc. 1, at 5-6.
The Court takes judicial notice of the state court docket sheet in Petitioner's state-court case. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting “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”).
The Court liberally construes Petitioner's pleadings because he proceeds pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court does not serve as Petitioner's advocate. See Hall, 935 F.2d at 1110.
III. Analysis.
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The AEDPA established a one-year limitation period during which an inmate in state custody can file a federal habeas petition challenging a state conviction: “A [one]-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
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.Id. The statute 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. § 2244(d)(2).
To meet the “properly filed” requirement, an inmate must comply with state procedural requirements. Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (defining a “properly filed” application as “one filed according to the filing requirements for a motion for state post-conviction relief” and giving examples of such requirements).
A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only “in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“AEDPA's one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.'” (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998))).
Unless a petitioner shows otherwise, the limitations period typically runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “[A] judgment becomes final when the defendant has exhausted all direct appeals in state court and the time to petition for a writ of certiorari from the United States Supreme Court has expired ....” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012). Petitioner's conviction became final on October 26, 2015, ninety days after the OCCA ruled and when his time to petition for a writ of certiorari expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).
The statutory year begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); see also United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” by which “the day of the act . . . from which the designated period of time begins to run shall not be included”); see also Fed.R.Civ.P. 6(a)(1) (“When the period is stated in days or a longer unit of time[,] exclude the day of the event that triggers the period.”). So Petitioner's statutory year began on October 27, 2015, and, absent tolling, expired one year later, on October 26, 2016.
B. Availability and effect of tolling on the limitations period.
1. Statutory tolling.
The AEDPA allows for tolling of the limitations period while a properly filed state post-conviction application is pending before the state courts. See 28 U.S.C. § 2244(d)(2). Petitioner filed no post-conviction application, so no such tolling applies.
2. Equitable tolling.
Petitioner filed his petition after the expiration of limitations period. Unless equitable tolling applies to save Petitioner's petition, it is untimely, and the Court must dismiss it.
“[A habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). Even assuming a diligent pursuit of the petitioner's rights, the one-year period of limitation “is subject to equitable tolling . . . only in rare and exceptional circumstances.” Gibson, 232 F.3d at 808 (internal quotation marks omitted). So Petitioner must “demonstrate[ ] that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). And Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). “Simple excusable neglect is not sufficient.” Gibson, 232 F.3d at 808.
Petitioner argues he was transferred multiple times and his legal research was confiscated and only partially returned-in damaged condition. Doc. 1, at 7. He maintains he was in segregation for “years,” without access to his materials, and that no less than fourteen guards confiscated his materials during his eight years in prison. Id. at 8. He claims he was medically and mentally unable to prepare his petition and was transferred out of prison multiple times, again losing access to his legal documents. Id. Finally, he requests that this Court consider this an “exceptional circumstance” case, given his first-degree murder conviction lacked mens rea and he was unable to present a full defense. Id.
Petitioner's assertions do not warrant equitable tolling. Examples warranting equitable tolling are “when a prisoner is actually innocent,” or “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.” Stanley v. McKune, 133 Fed.Appx. 479, 480 (10th Cir. 2005) (quoting Gibson, 232 F.3d at 808). Even “frequent transfers to different facilities” are “insufficient to justify equitable tolling.” See Clemens v. Sutter, 2006 WL 2711672, at *3 (N.D. Okla. Sept. 21, 2006). And although “confinement in administrative segregation may qualify as an extraordinary circumstance beyond [a prisoner's] control, [] equitable tolling is justified only where the prisoner has shown that despite his segregated confinement he diligently pursued his habeas claims and his confinement prevented him from filing on time.” Green v. Kansas, 190 Fed.Appx. 682, 684-85 (10th Cir. 2006) (internal citation omitted). Petitioner has made no such showing. The Court should thus conclude Petitioner is not entitled to equitable tolling of the limitations period.
3. Actual innocence exception.
Because Petitioner's statute of limitations has expired, Petitioner's only remaining path around the § 2244(d)(1)(A) deadline would be “a ‘credible showing of actual innocence.'” Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). And Petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
Petitioner does not present any new evidence in support of his actual innocence, instead asserting only insufficient evidence to convict him. He has therefore not put forth a viable actual innocence claim.
IV. Recommendation and notice of right to object.
Petitioner filed his habeas corpus petition past the expiration of the statute of limitations. No tolling, either statutory or equitable, may be applied to save the petition. The undersigned therefore recommends the Court dismiss the petition as untimely filed.
The undersigned advises Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before July 24, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.