Opinion
No. CIV-05-1476-C.
January 19, 2006
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. Pursuant to an order entered by Chief United States District Judge Robin J. Cauthron, the matter has been referred 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 as it appears that the petition is untimely under 28 U.S.C. § 2244(d), it is recommended that it be dismissed upon filing.
By this action, Petitioner challenges his December 19, 2003 convictions of attempted burglary in the first degree and assault with a dangerous weapon pursuant to his pleas of guilty, and for which he was sentenced to seven years imprisonment, with the last two years suspended. Case No. CF-2003-5690, District Court of Oklahoma County. Petition, p. 1. Petitioner did not move to withdraw his guilty pleas, and did not file a direct appeal of his convictions. Petition, p. 1-2.
Petitioner does not specify how he was sentenced on each of the individual counts. From the docket sheet from Case No. CF-2003-5690, it appears, although it is not entirely clear, that he was sentenced to seven years on each count. Additionally, the sentences were to run concurrently with sentences Petitioner received in other cases in the District Court of Oklahoma County. See Oklahoma State Courts Network, District Court of Oklahoma County, Case No. CF-2003-5690, (accessed January 10, 2006).
On July 5, 2005, Petitioner filed an application for post-conviction relief in the state district court. Petition, p. 3. See also Oklahoma State Courts Network, Docket No. CF-2003-5690, District Court of Oklahoma County, (accessed January 10, 2006). On August 18, 2005, the district court denied the application. Petition, p. 4. Petitioner then appealed to the Oklahoma Court of Criminal Appeals, which affirmed the denial on November 22, 2005. Petition, p. 4, No. PC-2005-875, Oklahoma Court of Criminal Appeals. Petitioner filed the instant petition on December 20, 2005, claiming that he was unlawfully induced into entering his pleas of guilty because he was not made aware that he had to serve eighty-five percent of his sentences and that he did not find this out until five months after his pleas and sentencing. Petition, p. 4. Petitioner further alleges that he was denied the effective assistance of counsel because counsel failed to inform the Court that he would not be eligible for earned credits until after service of eighty-five percent of his sentences. Petition, p. 5-6. Petitioner also alleges that the eighty-five percent rule does not apply to the attempt statute under which he was convicted. Petition, p. 6-7. Finally, Petitioner asserts that the State was responsible for amending the judgment and sentence. Petition, p. 5.
I. SCREENING REQUIREMENT
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is under an obligation to review habeas petitions promptly and to summarily dismiss a petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief. . . ." The undersigned finds that it is proper to raise the issue of timeliness of a petition for writ of habeas corpus sua sponte under Rule 4. Graves v. Boone, No. 99-7013, 1999 WL 1079626 (10th Cir. Nov. 30, 1999); Williams v. Boone, No. 98-6357, 1999 WL 34856 (10th Cir. Jan. 28, 1999) (affirming the Court's sua sponte dismissal of habeas corpus petition as untimely under Rule 4).
These and any other unpublished dispositions are cited as persuasive authority pursuant to Tenth Circuit Rule 36.3.
As stated by the Fifth Circuit in Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999), affirming the power of the district court to raise the statute of limitations sua sponte:
The district court has the power under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. This power is rooted in "the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.Kiser, 163 F.3d at 328 (quoting Rule 4 Advisory Committee Notes).
Moreover, the undersigned's sua sponte consideration of whether the petition is time-barred will not prejudice Petitioner since he has an opportunity to be heard on the issue by filing a timely objection to this Report and Recommendation. See Smith v. Dorsey, No. 93-2229, 1994 WL 396069 (10th Cir. July 29, 1994) (finding "no due process problem" where magistrate judge raised issue of procedural bar sua sponte and petitioner had opportunity to object to report and recommendation prior to district court's adoption thereof) (citing Hardiman v. Reynolds, 971 F.2d 500 (10th Cir. 1992)).
II. THE AEDPA LIMITATIONS PERIOD
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sets forth a one-year period of limitations for habeas petitioners who are in state custody. The statute provides in pertinent part:
Pub.L. No. 104-132, 110 Stat. 1214, effective April 24, 1996.
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. 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.28 U.S.C. § 2244(d)(1)(A)-(D). As a general rule, the period of limitation under this statute runs from the date the judgment became "final" as provided by § 2244(d)(1)(A), unless a petitioner alleges facts that would implicate the provisions set forth in § 2244(d)(1)(B), (C), or (D) above. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner alleges on the third page of the petition that he did not know about the alleged unconstitutionality of his judgment and sentence until five months after his pleas, which implicates the alternative statute of limitations provision of 28 U.S.C. § 2244(d)(1)(D). Petitioner has not provided the Court with any basis to apply the provisions of § 2244(d)(1)(B) or (C), and so the undersigned will consider the timeliness of the petition under § 2244 (d)(1)(A) and (D).
The page number is four but it is the third page of the petition.
Petitioner states that the date of the judgment and sentence in the convictions under attack was December 19, 2003. Petition, p. 1. He did not seek to withdraw his pleas or otherwise challenge his convictions within ten days as required by Oklahoma law.See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18 App. (1981) (defendant must file an application to withdraw a plea of guilty or nolo contendere within ten days from the pronouncement of the judgment and sentence). Petitioner's convictions therefore became final on December 29, 2003. Hicks v. Kaiser, No. 99-6302, 2000 WL 27694, at *1 (10th Cir. Jan. 14, 2000) (because petitioner failed to file an application to withdraw his guilty plea, his conviction became final ten days after pronouncement of the judgment and sentence). Therefore, if 28 U.S.C. § 2244(d)(1)(A) is the applicable statute of limitations provision, Petitioner had until December 29, 2004, to file his federal habeas action. Malone v. State, Nos. 03-6246, 03-6175, 2004 WL 1249850, at *1 (10th Cir. June 8, 2004) (the one year limitation period should be calculated using anniversary date method, citing United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003)). This action was not filed until December 20, 2005, and in the absence of tolling, is clearly untimely.
Alternatively, Petitioner asserts that he did not know until five months after his guilty pleas that he would be subject to the eighty-five percent rule, which requires that he serve eighty-five percent of his sentence before becoming eligible for earned credits. Assuming without deciding that this allegation could support an alternative statute of limitations starting date, the petition is nevertheless untimely. Petitioner entered his pleas of guilty on December 19, 2003. Five months later, on May 19, 2004, Petitioner learned that he would have to serve eighty-five percent of his sentence before earning credits. Pursuant to 28 U.S.C. § 2244(d)(1)(D), the statute of limitations period would have run on May 19, 2005. Again, the petition was not filed until December 20, 2005, and thus in the absence of tolling, it was clearly untimely.
A. Statutory Tolling
Federal law provides that the limitations period is tolled for a "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). However, Petitioner is not entitled to tolling for his post-conviction application because it was not commenced until the limitations period had already expired, regardless of whether the statute of limitations period is calculated utilizing 28 U.S.C. § 2244(d)(1)(A) or § 2244(d)(1)(D). See e.g., Hansell v. LeMaster, No. 98-2207, 1999 WL 258335, at *2 (10th Cir. April 30, 1999) (refusing to toll limitation period for time petitioner spent seeking post-conviction relief where petitioner did not seek such relief until after the statutory period ended). Therefore, statutory tolling is unavailable in this case.
B. Equitable Tolling
The period of limitation also "may be subject to equitable tolling" under circumstances where application of the period of limitation would possibly render the habeas remedy "inadequate and ineffective." Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). In Miller, the Court specifically cited assertions of innocence and incompetence as examples of claims which might warrant equitable tolling. Id. However, equitable tolling is limited to "rare and exceptional circumstances." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). To justify equitable tolling, the 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). It is Petitioner who has the burden of demonstrating that equitable tolling applies. Miller, 141 F.3d at 977;Cooper v. Bravo, No. 00-2462, 2002 WL 32716, at * 4 (10th Cir. Jan. 11, 2002) (citing Miller). Simple excusable neglect is not sufficient. Gibson, 232 F.3d at 808.
The petition provides no facts from which the Court could find that there are "rare and exceptional" circumstances that warrant equitable tolling. Furthermore, even if Petitioner could show rare and extraordinary circumstances justifying some equitable tolling of the limitation period, he must also demonstrate that he has diligently pursued his federal claims. Gibson, 232 F.3d at 808; Marsh, 223 F.3d at 1220. "[T]his Circuit has generally declined to apply equitable tolling when it is facially clear from the timing of the state and federal petitions that the petitioner did not diligently pursue his federal claims." Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003). In this case, Petitioner gives no reason for his approximate fourteen month delay in filing his state post-conviction application after he realized that he would have to serve eighty-five percent of his sentence before becoming eligible for earned credits. Thus, the undersigned finds that the petition should be dismissed as it was filed after the applicable one-year limitations period of 28 U.S.C. § 2244(d)(1), and there is no tolling available to otherwise extend the deadline.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the petition for a writ of habeas corpus 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 on or before February 8, 2006, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Petitioner is further advised that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991). This Report and Recommendation disposes of all the issues referred to the undersigned Magistrate Judge in the captioned matter. The Clerk of Court is directed to transmit a copy of this Report and Recommendation through electronic mail to the Attorney General of the State of Oklahoma on behalf of the Respondent at the following address: fhc.docket@oag. state.ok.us.