Opinion
No. CIV-20-438-R
05-29-2020
KENNETH R. HEDDLESTEN, Petitioner, v. SCOTT CROW, Director, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his convictions on two counts of child sexual abuse. District Court of Caddo County, Case No. CF-2009-51. 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 Petition be dismissed as untimely.
I. Background Information
On December 2, 2009, Petitioner entered a plea of no contest to the charges noted above. Doc. No. 1 ("Pet.") at 1; Oklahoma State Courts Network, District Court of Caddo County, Case No. CF-2009-51. On February 10, 2010, the state court sentenced Petitioner to 30 years imprisonment on the first charge and 30 years imprisonment suspended on the second. Id. The court ordered the sentences to run consecutively. Id.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=caddo&number=CF-2009-51.
On February 22, 2010, Petitioner filed an application to withdraw his plea. Pet. at 3; Oklahoma State Courts Network, District Court of Caddo County, Case No. CF-2009-51. The trial court denied the same on March 10, 2010. Id. Petitioner appealed the denial to the Oklahoma Court of Criminal Appeals ("OCCA") and it affirmed the trial court's decision on January 20, 2011. Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. C-2010-234.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=caddo&number=CF-2009-51.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=C-2010- 234&cmid=104098.
Petitioner filed an application for post-conviction relief on January 3, 2013. Pet. at 3; Oklahoma State Courts Network, District Court of Caddo County, Case No. CF-2009-51. Therein, he argued that his plea was not knowingly, voluntarily, and intelligently entered, he received ineffective assistance of counsel, the trial judge should have recused, the prosecuting attorney was biased against him, the trial court lacked jurisdiction, his rights were violated during the initial investigation, and prosecutors violated both state and federal law. Pet. at 3. The state court denied his application on August 16, 2013. Id. at 4; Oklahoma State Courts Network, District Court of Caddo County, Case No. CF-2009-51. Petitioner appealed to the OCCA and it affirmed the denial on November 7, 2013. Pet. at 4; Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. PC-2013-865.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=caddo&number=CF-2009-51.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=caddo&number=CF-2009-51.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2013- 865&cmid=112845.
Petitioner also filed a second, third, fourth and fifth application for post-conviction relief and/or application to appeal out of time. Pet. at 4-5; Oklahoma State Courts Network, District Court of Caddo County, Case No. CF-2009-51. The state court denied each of them. Id. Petitioner appealed the denial of his third application for post-conviction relief to the OCCA, which affirmed the denial and explained that each of Petitioner's grounds for relief were or could have been raised in his previous applications. Pet. at 4; Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. PC-2019-333.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=caddo&number=CF-2009-51.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2019- 333&cmid=126230.
By the current action, Petitioner raises the same or substantially similar challenges to his convictions that he raised in his first application for post-conviction relief. Pet. at 3, 6, 8, 10, 13, 15, 17-22. He requests this Court "reverse the Caddo County District Court's Judgment and Sentence and remand with instructions consistent with the rudimentary demands of fundamental fairness." Id. at 16.
II. Screening Requirement
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 F. App'x 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. Timeliness
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 February 10, 2010, following his entry of a no contest plea. See, supra. Petitioner timely requested to withdraw his plea on Monday, February 22, 2010. Id. Petitioner's request was denied on March 10, 2010. Id. Petitioner timely appealed and the OCCA affirmed the state court decision on January 10, 2011. Id. Petitioner's convictions therefore became "final" under 28 U.S.C. § 2244(d)(1)(A) on Monday, April 11, 2011, 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 April 12, 2011, 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 April 12, 2012. Petitioner did not file this action until May 2, 2020.
B. Statutory Tolling
As noted, Petitioner did not file his first Application for Post-Conviction Relief until January 3, 2013. Under 28 U.S.C. § 2244(d)(2), "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). Petitioner did not file his post-conviction application until after his statute of limitations had already expired. 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 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 has not presented any grounds indicating that he was misled or otherwise prevented from asserting his rights. While Petitioner may argue that he has been diligently pursuing his rights, the undersigned notes that his initial application for post-conviction relief was not filed until almost one year after the statute of limitations to file a habeas action had already expired. Moreover, Petitioner did not file the current action seeking habeas relief until well over nine years after the OCCA affirmed his underlying convictions.
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 rely on any new evidence indicating he was innocent of the underlying crimes in this matter. 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 the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 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 June 18th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); 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.
ENTERED this 29th day of May, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE