Opinion
CIV-21-559-PRW
10-14-2021
DONALD EDWARD MCCORD, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 6). United States District Judge Patrick R. Wyrick has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be DISMISSED on filing as untimely.
I. PROCEDURAL BACKGROUND
On May 17, 2018, in Oklahoma County District Court Case No. CF-2016-6862, Plaintiff entered a negotiated plea of nolo contendere to 31 counts of sexual offenses, primarily based upon sexual abuse of a child. (ECF No. 6:1). The court sentenced Plaintiff to forty years imprisonment for each count, all sentences to run concurrently. Id. Petitioner did not seek to withdraw the plea, and thus failed to perfect a direct appeal. (ECF No. 6:2); see York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003). On May 16, 2019, Mr. McCord filed an Application for Post-Conviction Relief in Oklahoma County District Court, and on November 19, 2019, the district court dismissed the application.On December 9, 2019, Plaintiff filed an application to withdraw his plea. The Oklahoma County District Court denied the same on January 21, 2020. (ECF No. 6-1:1). Plaintiff appealed the denial to the Oklahoma Court of Criminal Appeals (“OCCA”), who affirmed the district court's ruling on March 6, 2020. Mr. McCord filed the habeas petition on June 1, 2021, and filed an amended Petition on July 6, 2021. (ECF Nos. 1 & 6).
See also https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF 2016-6862&cmid=3439175; United States v Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising 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”) (citation omitted).
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2016-6862&cmid=3439175.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2016-6862&cmid=3439175.
See Order Affirming Denial of Application for Certiorari Appeal Out of Time, McCord v. State of Oklahoma, Case No. PC-2020-162 (Okla. Ct. Crim. App. Mar. 6, 2020).
II. SCREENING REQUIREMENT
District courts must review habeas petitions promptly and summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 Cases. Additionally, “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). However, “before 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. 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 the 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 or by dismissing the petition as time barred.” Day, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a § 2254 habeas petition sua sponte only if the petition is clearly untimely on its face. Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
III. AEDPA LIMITATIONS PERIOD
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs 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.28 U.S.C. § 2244(d)(1)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing. See Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015). Because Mr. McCord did not appeal from his plea, his conviction became final ten days following sentencing, on May 28, 2018. See supra. Thus, without tolling, Petitioner's one-year habeas statute of limitations to file a habeas petition expired on May 28, 2019. Petitioner filed the habeas petition on June 1, 2021, approximately two years after the limitations period had expired. (ECF No. 1).
Because the tenth day fell on Sunday, May 27, 2018, Petitioner had until the following Monday, May 28, 2018, to file a motion to withdraw. See 12 O.S. § 2006.
IV. STATUTORY TOLLING
The AEDPA limitations period is tolled pending adjudication of a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim. See 28 U.S.C. § 2244(d)(2). On May 16, 2019, with 13 days remaining on the one-year habeas clock, Mr. McCord filed an Application for PostConviction Relief. See supra. The Oklahoma County District Court dismissed the Application on November 19, 2019, and although Mr. McCord did not appeal the denial of his post-conviction application, he is entitled to a period of tolling for the time period that he could have filed an appeal. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding that the tolling of a properly filed application for post-conviction relief includes the time an applicant could seek appellate review of a state court's denial of his application, whether or not he actually seeks such review). Under Oklahoma law, this would entitle Mr. McCord to an additional 20 days of tolling beginning November 20, 2019 and ending December 10, 2019. See Rules 2.1(E), 5.2(C), Rules of the Oklahoma Court of Criminal Appeals.
Two days before the habeas clock started again, on December 9, 2019, Petitioner filed an application to withdraw his plea in the Oklahoma County District Court. See supra. The district court denied relief on January 21, 2020 and the OCCA affirmed the denial on March 6, 2020. See supra. The 13 days remaining on the habeas clock started the following day, March 7, 2020, and expired on March 20, 2020. On March 18, 2020, in this Court, Mr. McCord filed a document entitled, “Application to Order Oklahoma County District Court to Honor Plaintiff's/Appellant's Statuatory [sic] Ten (10) Day Right to Withdraw Plea.” ECF No. 1, McCord v. State of Oklahoma, Case No. CIV-20-249-PRW. Noting that the only relief requested by Mr. McCord was that the Court overturn the state court's decision denying as untimely Petitioner's request to withdraw his plea, the Court dismissed the action without prejudice, for lack of jurisdiction under the Rooker-Feldman Doctrine. See ECF No. 13. In doing so, the Court stated:
The Court agrees with the Magistrate Judge that Plaintiff's prayer does “not present[] a habeas claim or another recognized form of collateral relief” but instead “treat[s] the federal court as an appellate forum” insofar as it “request[s] [that] this Court essentially overturn the state court's decision denying as untimely his request to withdraw his plea.”(ECF No. 13:5-6). The limitations period to file a habeas petition expired March 20, 2020. Because Mr. McCord did not file the instant case until June 1, 2021, the Petition is untimely, absent equitable tolling.
If the action in Case No. CIV-20-549-PRW had been construed as one seeking habeas relief under 28 U.S.C. § 2254, the instant Petition could be considered a “second or successive” petition requiring authorization from the Tenth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive [§ 2254] application ... is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”).
V. EQUITABLE TOLLING
The AEDPA limitations period may be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an extraordinary circumstance stood in the petitioner's way and prevented timely filing. See Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances are extraordinary, equitable tolling is only available when the petitioner has been diligent in the pursuit of his habeas claims. See Holland, 631 U.S. at 653. Under this standard, the petitioner bears a “'strong burden to show specific facts.'” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted).
In regards to timeliness, Mr. McCord states:
Petitioner has attempting to resolve the issues presented since May 2018 through many motions and petitions, both state and federal, further complicated by petitioner's limited access to legal materials and resources diminished] further by Prison lockdowns, staff shortages, Covid 19 restrictions, staff absences, lack of legal knowledge or legal counsel. State's violation of petitioner's rights is still continuing.(ECF No. 6:13). But these allegations lack specificity regarding exactly how Petitioner was prevented from filing a timely habeas petition. See e.g., Donald v. Pruitt, 853 Fed.Appx. 230, 234 (10th Cir. 2021) (“The bottom line is that the COVID-19 pandemic does not automatically warrant equitable tolling for any petitioner who seeks it on that basis. The petitioner must establish that . . . the COVID-19 pandemic specifically prevented him from filing his motion.”) (citation omitted). The Court should find that the lack of specificity is fatal to any claim that Mr. McCord is entitled to equitable tolling.
VI. ACTUAL INNOCENCE EXCEPTION
“[A] credible showing of actual innocence” based on newly discovered evidence “may allow a prisoner to pursue his constitutional claims” as to his conviction, under an exception to 28 U.S.C. § 2244(d)(1)-established for the purpose of preventing a miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Successful actual-innocence claims are rare due to the demanding evidentiary requirements for such claims. See id. at 383, 392, 401; House v. Bell, 547 U.S. 518, 538 (2006). “[P]risoners asserting innocence as a gateway to defaulted claims must establish 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.' ” House v. Bell, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord McQuiggin v. Perkins, 569 U.S. at 399 (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims must be based on “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Here, Mr. McCord has made no allegation that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to the same. As a result, the Court should conclude that the “actual innocence” exception does not apply.
VII. SUMMARY
Under § 2244(d)(1)(A), Petitioner's conviction became final on May 28, 2018 and, with statutory tolling, the one-year habeas limitations expired on March 20, 2020. Mr. McCord is not entitled to any equitable tolling because he has failed to demonstrate, with specificity, why he was prevented from filing a timely petition. Finally, Petitioner is not entitled to any period of tolling under the “actual innocence” exception. Because Petitioner waited until June 1, 2021 to file his Petition, the Court should dismiss it as untimely.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition (ECF No. 6) 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 November 1, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IX. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.