Opinion
CIV-23-692-JD
02-22-2024
JAMES PAUL HUTCHESON, Petitioner, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHIELL, UNITED STATES MAGISTRATE JUDGE
Petitioner James Paul Hutcheson, proceeding pro se, brings this action under 28 U.S.C. § 2254, seeking habeas corpus relief from his state conviction and sentence. Doc. 1.United States District Judge Jodi W. Dishman referred the case to the undersigned Magistrate Judge for submission of findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B), (C), and Federal Rule of Civil Procedure 72(b). Doc. 5. Respondent has moved to dismiss the petition as time-barred, and Petitioner has not responded. Docs. 12, 13. For the reasons discussed, the undersigned recommends the Court grant Respondent's motion to dismiss the untimely petition.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Background.
Petitioner pleaded not guilty to unlawful possession of a controlled dangerous substance with intent to distribute in the District Court of Bryan County, Case No. CF-2000-90. Doc. 13, Ex. 1. On September 10, 2001, following a trial, the jury found Petitioner guilty. Id. On December 18, 2001, the state district court sentenced Petitioner to thirty years' imprisonment, to run consecutively with other criminal sentences for which he was already serving time. Doc. 13, Ex. 2.
Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed his conviction on March 21, 2003. Doc. 13, Ex. 3. Petitioner applied for post-conviction relief on October 7, 2022. Doc. 13, Ex. 4. The Bryan County District Court denied post-conviction relief on March 2, 2023, and the OCCA affirmed the district court's denial on June 2, 2023. Doc. 13, Exs. 5 & 7.
II. Petitioner's claims.
Petitioner filed his habeas petition on August 3, 2023, when he placed it in the prison mail. Doc. 1, Att. 1 (envelope); see Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (explaining prisoner mailbox rule). To place Petitioner's grounds for relief in context, upon his arrest, Petitioner was found in possession of a syringe containing a liquid substance and fifty-four clear plastic bags, some of which contained white residue. Doc. 13, Ex. 8, at 2-3 & Ex. 9. At Petitioner's trial, Dr. Michael Childers, a chemist for the Oklahoma State Bureau of Investigation (OSBI), testified that he had tested the liquid contained within the syringe, as well as the white residue within one of the plastic bags, and determined both the syringe and bag contained methamphetamine. Doc. 13, Ex. 10, at 6-10, 14-15.
For Ground One, Petitioner asserts ineffective assistance of trial and appellate counsel based on their alleged “failure to show evidence of actual innocence.” Doc. 1, at 5. Petitioner's claim arises from Dr. Childers's forensic drug testing report, dated October 12, 2000. Id.; Doc. 2, at 2, 5 & Ex. 3, at 8. The report reflects Dr. Childers did not test the white residue in any of the fifty-four plastic bags. Doc. 2, at 4-5 & Ex. 3, at 8. Petitioner asserts the State relied on Dr. Childers's testimony at trial regarding the contents of the bags to establish the “intent to distribute” element of Petitioner's criminal charge. Doc. 2, at 5.
Petitioner explains that the State provided defense counsel with the report by at least January 18, 2001, well before Petitioner's criminal trial, which took place in September 2001. Doc. 2, at 6-7. Petitioner argues that neither his trial nor appellate counsel analyzed the report because they never challenged Dr. Childers's testimony. Id. at 7.
In a related argument, for Ground Two, Petitioner asserts Dr. Childers provided false testimony during his criminal trial about his testing of one of the plastic bags. Doc. 1, at 6-7; Doc. 2, at 9-10. In Ground Three, Petitioner argues that the October 12, 2000 report establishes he is actually innocent of “‘intent to distribute.'” Doc. 1, at 8; Doc. 2, at 10-11. He contends that because the State relied solely on the bag contents to support the “intent to distribute” element of his charge, he should have been convicted only of possession of a controlled dangerous substance. Doc. 2, at 10-11.
Respondent argues that Petitioner's habeas petition is untimely because he did not file it within one year of his judgment becoming final. Doc. 13. Though Petitioner did not file a response to the motion to dismiss, in his petition and brief supporting the same, Petitioner asserts that his statute of limitations did not begin to run until 2022 when he discovered the contents of Dr. Childers's October 12, 2000 forensic report. Doc. 1, at 7, 13; Doc. 2, at 3-6. He also states that “if not for counsel's ineffectiveness, the Petitioner would [h]ave known of the claim, and would have raised it earlier. Since these ineffective attornies (sic) were ‘state [appointed]' an argument (sic) can be made that previously filing was ‘impeeded (sic) by state action[.]” Doc. 2, at 5.
III. Discussion
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
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.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. It also 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). 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)).
B. Petitioner's deadline to file for habeas relief.
Petitioner contends his petition is timely under § 2244(d)(1)(B), (D). He argues that due to the ineffective assistance of court-appointed attorneys, he was not previously aware of the contents of the October 12, 2000 report on which he relies for his grounds for relief. Doc. 1, at 13; Doc. 2, at 5.
1. Conviction finalized under 28 U.S.C. § 2244(d)(1)(A).
Unless a petitioner shows otherwise, the limitations period typically runs from the date the judgment becomes “final” under § 2244(d)(1)(A). Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “When the petitioner hasn't petitioned for certiorari with the Supreme Court, the one-year period begins to run ‘after the time for filing a petition for certiorari with the Supreme Court has passed.'” Collins v. Bear, 698 Fed.Appx. 946, 949 (10th Cir. 2017) (quoting Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)). Petitioner had until June 19, 2003, to petition for certiorari. Id. at 948 (holding the petitioner's convictions became final ninety days after the OCCA affirmed his convictions); Doc. 13, Ex. 3 (OCCA opinion dated March 21, 2003). Thus, Petitioner's conviction and sentence became final on June 19, 2003, ninety days after the OCCA affirmed them.
The one-year limitations period begins to run the day after a conviction is final. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011); see also United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” in which “the day of the act . . . from which the designated period of time begins to run shall not be included” (quoting Federal Rule of Civil Procedure 6(a))). So Petitioner's statutory year to file a habeas petition began on June 20, 2003, and, absent tolling, would have expired one year later, on Monday, June 21, 2004. Petitioner filed this action on August 3, 2023, nineteen years after the expiration of the § 2244(d)(1)(A) limitations period.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). But Petitioner is not entitled to statutory tolling because he filed his action for postconviction relief eighteen years after his § 2244(d)(1)(A) limitations period 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 AEDPA will toll the statute of limitations.”).
2. Starting date for limitation period under § 2244(d)(1)(B), (D).
Petitioner asserts that he could not seek habeas relief within the one-year statute of limitations under § 2244(d)(1)(A) because, at the time, he was unaware of the October 12, 2000 forensic report on which he relies. He concedes that his defense counsel received the forensic report well before his trial, but contends counsel failed to analyze it. Doc. 2, at 6-7. He accuses appellate counsel of the same. Id. at 8-9. And because both trial and appellate counsel were court appointed, he argues the state impeded his ability to file a habeas action. Id. at 5.
“Section 2244(d)(1)(B) provides an exception to . . . the one-year statute of limitations . . . when the state creates an impediment which prevents the petitioner from filing his petition on time. In such circumstances, the statute of limitations does not begin to run until the impediment is removed.” Nguyen v. Golder, 133 Fed.Appx. 521, 523 (10th Cir. 2005). Likewise, § 2244(d)(1)(D) allows a later trigger date if a petitioner shows he could not have timely discovered, through the exercise of due diligence, the factual predicate of his claims. 28 U.S.C. § 2244(d)(1)(D); see, e.g., Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (agreeing with the petitioner that the factual predicate for his claim-which was a legal opinion-was “discoverable by ‘due diligence' on the date the opinion became accessible in the prison law library, not the date the opinion was issued”).
First, Petitioner misunderstands § 2244(d)(1)(B)'s application. This section applies when the State has prevented the filing of a habeas action, not the discovery of a basis for a claim. Further, an attorney's actions, including a court-appointed attorney, do not constitute State action under § 2241(d)(1)(B) to delay the accrual of the AEDPA statute of limitations. See Sigala v. Bravo, 656 F.3d 1125, 1127 (10th Cir. 2011) (holding that actions by a defendant's counsel, including a public defender, “cannot properly be [ ] action attributable” to the State for purposes of § 2244(d)(1)(B) (quotations omitted)); Irons v. Estep, 2006 WL 991106, at *1 (10th Cir. April 17, 2006) (noting ineffective assistance of court-appointed counsel cannot constitute a state-created impediment under § 2244(d)(1)(B) because defense attorneys are not State actors when “performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding”) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)). Thus, § 2244(b)(1)(B) does not govern the timeliness of Petitioner's request for habeas relief.
Second, Petitioner's habeas petition is also not saved by § 2244(d)(1)(D). As stated, § 2244(d)(1)(D) provides that the one-year limitations period begins to run on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”
The Tenth Circuit defines “‘due diligence' as an ‘objective standard' that refers to when a plaintiff ‘could have' discovered the pertinent facts, not when she actually discovered them.” Madrid v. Wilson, 590 Fed.Appx. 773, 776 (10th Cir. 2014) (quoting United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012)). Because “‘due diligence is equivalent to a rule of inquiry notice,' the prisoner is obligated to make reasonable efforts to discover the facts relevant to his claim for habeas corpus relief.” Nordelo v. Sec'y, Fla. Dep't of Corr., 635 Fed.Appx. 636, 639 (11th Cir. 2015) (citation omitted). Thus, the “question under the provision is not when prisoners first learned of the new evidence; it is when they should have learned of the new evidence had they exercised reasonable care.” Townsend v. Lafler, 99 Fed.Appx. 606, 608 (6th Cir. 2004) (emphasis added).Gonzalez v. Martin, No. CIV-18-297-R, 2018 WL 4494993, at *2-3 (W.D. Okla. Sept. 19, 2018) (quoting Burke v. Bigelow, 2017 WL 4180002, at *3 (D. Utah Sept. 19, 2017)).
As noted, Petitioner acknowledges his defense counsel obtained the October 12, 2000 report no later than January 18, 2001. Doc. 2, at 7. More significantly, with his petition, Petitioner submitted a letter showing that his attorney provided the October 12, 2000 report to Petitioner on the same date. Doc. 2, Att. 4, at 59. Thus, Petitioner had the forensic report in his possession as early as January 2001. Due diligence refers to when a petitioner “could have” discovered the pertinent facts, not when he actually discovered them. Madrid, 590 Fed.Appx. at 773. Section 2244(d)(1)(D) is not triggered when a petitioner holds the basis for habeas relief in his possession but fails to read it or understand its significance. See, e.g., Woody v. Dowling, 2016 WL 3360510, at *3 (N.D. Okla. June 16, 2016) (finding habeas action untimely because the petitioner “could have discovered the factual predicate of his [sentence credits] . . . claim” when he received a quarterly record of his accumulated time and “a monthly report reflecting his projected release date”). So Petitioner's request for habeas relief is therefore untimely filed unless he can establish that he is entitled to equitable tolling.
C. Equitable tolling.
Section 2244(d) “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). Petitioner has the burden of proving that equitable tolling applies. Sigala, 656 F.3d at 1128. Generally, “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, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Under this standard, a petitioner “bears a strong burden 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)).
Petitioner has failed to establish that he diligently pursued his claims and that an extraordinary circumstance stood in his way of timely filing a habeas corpus petition. He is thus not entitled to the equitable tolling of the limitations period.
D. Actual innocence exception.
Having found Petitioner's statute of limitations has expired, the final issue is whether to allow Petitioner to bypass the limitation period because he has presented “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)). A petitioner seeking tolling “on actual innocence grounds” need not show “that he diligently pursued his actual innocence claim.” Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010). But “[t]o 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 to invoke this exception, “a 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).
“‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Yet the record establishes that Petitioner cannot establish actual innocence of the charged crime.
Petitioner argues that had the October 12, 2000 report been introduced at trial, the jury could have found that he “was guilty of possession rather than intent to distribute.” Doc. 2, at 10. But while the October 12, 2000 report reflects that Dr. Childers had not tested the fifty-four plastic bags, that was not his final report.
Dr. Childers further testified that he submitted a second report dated April 6, 2001, specifying that he had tested one of the fifty-four plastic bags between April 3, 2001, and April 6, 2001. Doc.13, Ex. 10 at 6-10, 14-18 & Ex. 11. Dr. Childers's testing of the plastic bag showed it also contained methamphetamine. Id. Thus, while in the initial forensic report, Dr. Childers had not tested any of the plastic bags found in Petitioner's possession, by the time of Petitioner's trial, Dr. Childers had tested one of those bags and testified that it also contained methamphetamine. Thus, in considering the record as a whole, Dr. Childers's October 12, 2000 report would not have influenced the verdict of a reasonable juror. See House v. Bell, 547 U.S. 518, 537 (2006) (actual innocence requires a petitioner to show that “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” (quoting Schlup, 513 U.S. at 327)).
Because Petitioner has not offered any new evidence to negate the evidence presented at his trial or alleged facts amounting to actual innocence, the undersigned finds Petitioner has not satisfied this exception. His petition is therefore untimely filed.
IV. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends the Court grant Respondent's motion to dismiss Petitioner's habeas petition as untimely filed under 28 U.S.C. § 2244(d).
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 March 14, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2). The undersigned also 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. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.