Opinion
CIV-22-053-JD
08-16-2022
JUSTIN WAYNE PRENTICE, Petitioner, v. SCOTT CROW, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed this action seeking relief under 28 U.S.C. § 2254. Petitioner is challenging his convictions in the District Court of Garfield County, Oklahoma, for Domestic Assault and Battery with a Dangerous Weapon, Case No. CF-2014-331, and Lewd or Indecent Acts to a Child Under Sixteen, Case No. CF-2017-686. Respondent has filed a Response, Doc. No. 15, to which Petitioner has replied. Doc. No. 19. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended Petitioner's Application for Writ of Habeas Corpus be denied.
I. Background Information
On June 22, 2017, Petitioner entered a guilty plea to the charge of Domestic Assault and Battery with a Dangerous Weapon. Doc. No. 15-1. Petitioner received a partially suspended five year sentence. Id.
On December 27, 2017, Petitioner was charged with Lewd or Indecent Acts to a Child Under Sixteen. Oklahoma State Court Network, State v. Prentice, District Court of Garfield County, Case No. CF-2017-686. As a result, on December 28, 2017, the State filed a motion to revoke suspended sentence in his previous criminal case. Oklahoma State Court Network, State v. Prentice, District Court of Garfield County, Case No. CF-2014-331. On August 30, 2018, the state court granted the State's motion, revoking Petitioner's previously suspended sentence. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=garfield&number=CF- 2017-686
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=garfield&number=CF- 2014-331
Regarding his more recent charge, Petitioner was convicted, following a jury trial, of Lewd or Indecent Acts to a Child Under Sixteen on January 29, 2019. Doc. No. 15-3. The state trial court sentenced Petitioner to a term of 25 years imprisonment. Id. The Oklahoma Court of Criminal Appeals (“OCCA”) subsequently permitted Petitioner to file an appeal out of time. Doc. No. 15-4. On appeal, Petitioner raised three issues, including sufficiency of the evidence, ineffective assistance of counsel, and excessive sentence. Doc. No. 15-5. The OCCA affirmed Petitioner's conviction and sentence on February 25, 2021. Doc. No. 15-6.
On March 18, 2021, Petitioner filed a petition for rehearing with the OCCA and the OCCA rejected the same as untimely. Doc. Nos. 15-7, 15-8. On July 22, 2021, Petitioner filed an application for post-conviction relief with the state trial court raising multiple issues including ineffective assistance of counsel, that his trial transcripts were inaccurate, and that he was innocent of the crimes for which he was convicted in each criminal case referenced herein. Doc. No. 15-9. The state court summarily denied the same on September 7, 2021, based on findings that the claims “are barred because they were presented in [Petitioner's] appeal and decided against him, are barred because they could have been presented in his appeal but were not, or fail as a matter of law.” Doc. No. 15-10. Petitioner appealed to the OCCA, Doc. No. 15-11, which affirmed the district court's ruling on November 19, 2021. Doc. No. 15-12.
Petitioner filed a petition for rehearing with the OCCA. Doc. No. 3-41. The OCCA rejected the petition pursuant to Rule 5.5 of the Rules of the Oklahoma Court of Criminal Appeals, which provides, “Once this Court has rendered its decision on a post-conviction appeal, that decision shall constitute a final order .... A petition for rehearing is not allowed and these issues may not be raised in any subsequent proceeding in a court of this State. The Clerk of this Court shall return to the movant any petitions for rehearing tendered for filing.” Doc. No. 3-42; Doc. No.15 at 3 n.3 (citing Okla. Stat. tit. 21, Ch. 18, § 5, Rule 5.5).
Petitioner filed the current action on January 19, 2022. Doc. No. 1. In his first two grounds for relief, Petitioner contends the State did not present sufficient evidence to prove every element of his criminal charge. Id. at 5. He also asserts ineffective assistance of trial counsel based on the contention that his trial counsel failed to adequately investigate his defenses and the evidence against him, move to suppress certain evidence, raise objections during trial, and object to the jury instructions. Id. Additionally, Petitioner contends his sentence was excessive for the crime charged and evidence presented. Id. at 6-7.
In his third ground for relief, Petitioner claims that his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments were violated. Id. at 8. In support, Petitioner states the following:
I was called to the police station and was interviewed, I was never informed of the nature and cause of the accusation until[] nine (9) days later. Getting arrested Two (2) day's [sic] before the probable cause warrant was issued. I told the officers my dogs are home alone. The officer didn't care, so they starved for three (3) days, my car got seized and put up for auction with a bail I could not afford.Id. In his final ground for relief, Petitioner contends his rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Fourteenth, and Fifteenth Amendments were violated. Id. at 9. In support, Petitioner argues the statute under which he was charged and convicted is unconstitutional, that it allows for an excessive sentence, and, relying on various scriptures from the Bible, that his underlying conduct merely constituted good-hearted actions. Id. at 9-10.
II. Evidence Presented at Trial
Petitioner was charged with committing Lewd or Indecent Acts to a Child Under Sixteen, specifically, M.W., who was nine years old at the time of the underlying events. M.W.'s father, H.W., was Petitioner's friend and coworker and Petitioner frequently drove H.W. home after work. Trial Tr. 157-58. Petitioner was 37 years old at all times relevant to this matter. Trial Tr. 234.
H.W. lived with his mother, whom M.W. called Nana, and M.W. spent every other weekend with them. Trial. Tr. 160, 167-68. H.W. testified that on December 9, 2017, Petitioner was at their house when M.W. made certain comments regarding Petitioner that concerned H.W. Trial Tr. 160-62, 165. H.W. then asked Petitioner to leave. Trial Tr. 160-62, 170-72. H.W. believed Petitioner became nervous and then quickly left. Id. After asking M.W. some questions, H.W. contacted the police department. Trial Tr. 156, 160, 165.
Officer Jared Bush of the Enid Police Department responded to H.W.'s report. Trial Tr. 173-74. H.W.'s report was about Petitioner and M.W. Trial. Tr. 174-75. Based on this report, Officer Bush spoke with M.W. Trial Tr. 175. Officer Bush testified that M.W. reported the following:
A. She told me that [] evening that she was dancing in front of [Petitioner] and when her dad came back in from using the bathroom that she asked her dad to leave so she could get to know [Petitioner] better.
....
She also told me that a couple weeks prior to the Thanksgiving of that year, of 2017, that [Petitioner] held a chocolate bar in his mouth about halfway - that he had bought from her - and told her if she wanted some that she would have to bite it off.
And then she informed me that around Thanksgiving of that time that [Petitioner] had kissed her twice on the mouth. And there was another incident where [Petitioner] had kissed her and tried to force his tongue inside her mouth.
....
She also talked about possibly going down to Dollar General to buy Christmas presents, but she told [Petitioner] no.Trial. Tr. 175. After contacting his supervisor, Officer Bush explained to H.W. that the case would be turned over to detectives for investigation. Trial Tr. 176.
On December 11, 2017, M.W. was forensically interviewed at the Yellow House in Enid, Oklahoma and subsequently testified during Petitioner's trial. Trial Tr. 183-84, 207. M.W. stated that the weekend before Thanksgiving, she was selling chocolate bars for her school, Petitioner bought one, put half of a piece in his mouth, and tried to make M.W. bite the other half. Trial Tr. 212-14; St. Trial Ex. 1 9:309:35, 11:35-11:50, 13:35-13:45, 29:35-30:25. The weekend after Thanksgiving, M.W. and Petitioner were again in the living room at M.W.'s Nana's house. M.W.'s Nana was in the kitchen and H.W. was not home. Petitioner begged M.W. to kiss him by saying, “Kiss me, kiss me, kiss me.” M.W. kissed him three times and the third time, Petitioner put his tongue inside M.W.'s mouth. Trial Tr. 210-11; St. Trial Ex. 111:55-13:55, 19:25-19:43, 30:30-31:20, 32:25-32:40. Petitioner asked M.W. to kiss him a fourth time and she refused. St. Trial Ex. 1 31:20-31:50. According to M.W., at some point, Petitioner told her not to tell anyone. Trial Tr. 211; St. Trial Ex. 1 9:46-9:51.
During trial, M.W. testified that Petitioner put his tongue inside her mouth during every kiss. Trial. Tr. 211. However, she acknowledged that her memory during the forensic interview was probably better than at trial because the forensic interview was closer in time to the underlying incidents. Trial Tr. 215-17.
The following Saturday, Petitioner was again at M.W.'s Nana's house and, while H.W. was in the restroom, he asked M.W. to marry him. State Tr. Ex. 115:4016:05. M.W. said that maybe she would in the future, then jokingly said, “Kiss me” to Petitioner and then H.W. returned to the room. St. Tr. Ex. 116:05-16:20, 37:1037:53. Petitioner also told M.W. to ask her dad if he could take her to Dollar Tree to buy Christmas presents but H.W. said no when M.W. asked. State Tr. Ex. 116:5017:05.
A video of M.W.'s forensic interview in its entirety was played to the jury during Petitioner's trial. Trial Tr. 187-88.
Detective Parks with the Enid Police Department also testified during Petitioner's trial. Trial Tr. 217-18. Detective Parks explained that on December 11, 2017, he was assigned to investigate a case involving M.W. Trial Tr. 219. He observed M.W.'s forensic interview. Trial Tr. 221. Following the forensic interview, on December 19, 2017, Detective Parks contacted Petitioner, advising him of the report made against him and asking if Petitioner could go to the Enid Police Department to discuss the same. Trial Tr. 224-25, 230. Petitioner initially stated that he was not sure whether he could come in that day but ultimately, he was able to do so. Trial Tr. 225.
Upon his arrival to the Enid Police Department, Petitioner was not under arrest but Detective Parks read the Miranda warning along with Petitioner at the beginning of the interview. St. Trial Ex. 2; St. Trial Ex. 3 15:36-15:40; Trial Tr. 227-29. Petitioner stated that he went to H.W.'s house on Saturday, December 9, 2017, and stayed for about an hour, maybe less. St. Trial Ex. 3 15:41-15:42:15. Petitioner stated that in addition to H.W., H.W.'s mom and M.W. were also present. St. Trial Ex. 3 15:43:14-15:43:35. Petitioner was aware that M.W. was nine years old. St. Trial Ex. 3 15:47:50-15:47:53. He also stated that M.W. was acting “scary” and “weird” that day. St. Trial Ex. 3 15:44:40-15:44:57. By that he meant that M.W. was starting to develop physically and “get hormones,” and close to starting menstruation. St. Trial Ex. 3 15:45:40-15:46:12.
Petitioner explained that on that day, M.W.'s behavior reminded him of a previous girlfriend who tried to drag him into her bedroom because M.W. was pulling on Petitioner's arm, trying to get him to go back to her bedroom, trying to get him to stay at the house longer even though he said that he needed to leave, and was asking him to take her to Dollar Tree. St. Trial Ex. 3 15:44:58-15:45:25; 15:46:30-15:46:41. Petitioner said that he would go to Dollar Tree if the three of them went, but H.W. said no. St. Trial Ex. 3 15:45:25-15:45:40. When H.W. went to the restroom, M.W. told Petitioner a secret about seeing a shower scene on a television show, Teen Titans, that Petitioner described as sounding pornographic. St. Trial Ex. 3 15:50:21-15:50:40. Petitioner told her that he needed to leave but M.W. wanted him to stay longer, grabbed his arm, and asked him to go to her bedroom. St. Trial Ex. 3 15:52:40-15:53:08. When M.W. went into her bedroom, Petitioner ran out of the house, treating it like a game. St. Trial Ex. 3 15:53:30-15:53:40.
Petitioner agreed with Detective Parks' suggestion that M.W. had a crush on Petitioner. St. Trial Ex. 3 15:57:25-15:57:32. Petitioner first stated that he had kissed M.W. on one occasion. St. Trial Ex. 3 15 15:57:34-15:57:43. It occurred a weekend or two prior to December 9, 2017, and Petitioner described it as an innocent father daughter kiss, though he also said, “I don't know, I might have talked her into it or something.” St. Trial Ex. 3 15:57:40-15:58:16. In that regard, Petitioner explained that M.W. was selling candy bars and he told her that he would give her one dollar and she could give him a kiss. St. Trial Ex. 3 16:00:24-16:01-05. M.W. said no at first but after Petitioner continued to “tease” her, M.W. gave him a kiss. St. Trial Ex. 3 16:01:05-16:05:21, 16:55:42-16:56:13. M.W. asked Petitioner if he was trying to have sex with her. He said that she asked him that because he dropped some chocolate on the ground and he was teasing her with it and put it in his mouth. St. Trial Ex. 3 16:13:27-16:14:29. When M.W. asked him if he was trying to have sex with her, Petitioner told M.W. not to tell anyone that because it sounds bad. St. Trial Ex. 3 16:24:17-16:24:55.
Petitioner later admitted there was a second kiss on the same day. St. Trial Ex. 3 15:58:38-15:58:45. Petitioner stated that after the first kiss, M.W. wanted to give him another one. St. Trial Ex. 3 16:01:33-16:01:45. Petitioner then admitted there was a third kiss in which he stuck his tongue out during the kiss. St. Trial Ex. 3 16:01:45-16:02:26. He stated that he was not trying to “French kiss” M.W. but was instead, trying to gross her out. St. Trial Ex. 3 16:03:43-16:03:50. During these kisses, H.W. was not at home and H.W.'s mom was in the kitchen. St. Trial Ex. 3 16:04:22-16:05:00.
At some point during the Saturday that he kissed M.W. three times, Petitioner asked M.W. if she would marry him and she said, “No. Well, maybe later.” St. Trial Ex. 3 16:09:50-16:10:18. He asked because he thought it was easier to ask young girls for an honest answer, whereas a woman would say, “I got you, yes!” Plus, he knew that he could not marry M.W. St. Trial Ex. 3 16:10:30-16:10:51. Also, Petitioner thought it might plant the idea in M.W.'s mind that maybe she should get married before she has sex. St. Trial Ex. 3 16:10:51-16:10:57.
Petitioner said that on December 9, 2017, M.W. asked her dad to go out of the room so that she could get to know Petitioner better. St. Trial Ex. 3 16:14:40-16:15:02. M.W. had grabbed Petitioner by the arm and was trying to drag him to her bedroom. St. Trial Ex. 3 16:15:25-16:15:41. Petitioner stated that M.W.'s behavior reminded him of his ex-girlfriend who in 1998 when he was 17, took his keys, would not let him leave, dragged him to her bedroom, and they had sex. He felt like that experience scarred him for life and he finds it difficult to “trust a girl” now. St. Trial Ex. 3 16:15:40-16:16:35, 16:18:25-16:19:17. Because of that experience, he went most of his life without having sex. St. Trial Ex. 3 16:16:35-16:16:44. Petitioner does not think M.W. was trying to get him into her bedroom to have sex but he drew a line at going into a girl's bedroom. St. Trial Ex. 3 16:29:26-16:29:52, 16:57:5816:58:24. Petitioner thought kissing was okay but he was not going to go into M.W.'s bedroom and was not going to have sex with her. St. Trial Ex. 3 16:59:1216:59:38.
Petitioner stated that he left H.W.'s house after H.W. got home because he did not want to bother H.W. who was going to take a nap. St. Trial Ex. 3 16:17-16:17:35. He also said that as soon as M.W. went into her room, he left the house because her grabbing him by the arm to take him to her bedroom reminded him of his exgirlfriend. St. Trial Ex. 3 16:17:35-16:17:51, 16:19:18-16:19:32.
Petitioner stated that he loved M.W. and would do anything for her that H.W. would do. St. Trial Ex. 3 16:27:32-16:27:47. He also likened M.W. to pets that you care for and they show you affection and so you get attached to them. St. Trial Ex. 3 16:27:47-16:28:13.
On Tuesday, December 12, 2017, Petitioner told H.W. about previously kissing M.W. St. Trial Ex. 3 16:30:35-16:31:49. Prior to telling H.W., Petitioner knew H.W. was angry but Petitioner was not sure why. St. Trial Ex. 3 16:31:4816:32:14.
Detective Parks asked Petitioner whether, if he were in H.W.'s shoes, he would see anything wrong with H.W. kissing M.W. St. Trial Ex. 3 16:39:3016:39:40. Petitioner responded, “In a way.” Id. Petitioner elaborated that there are men that would have gone much further with M.W. St. Trial Ex. 3 16:39:4016:41:10. Petitioner also stated that M.W. “has control over [him] more than, more than a lot of girls, you know, it's like, I don't know what it is but you know, it's scary.” St. Trial Ex. 3 16:41:15-16:41:35. He stated that he will do almost anything M.W. says, but he does not want to break her heart because that takes time to heal. St. Trial Ex. 3 16:41:39-16:42:00.
Petitioner felt that he did a good job discouraging M.W., even if his methods sound bad, because on December 9, 2017, she told him that she “did not trust [him] on kisses no more.” St. Trial Ex. 3 16:44:30-16:45:29. He also stated that M.W.'s kisses were the first kisses that he experienced in a long time and they made him feel special. St. Trial Ex. 3 16:45:30-16:45:46. Petitioner thinks this feeling is the result of not having a girlfriend since he was 17 years old and not having had sex for 20 years. St. Trial Ex. 3 16:45:46-16:46:10. Petitioner stated that a friend's granddaughter, who is only two or three years old, also has a crush on him. St. Trial Ex. 3 16:42:05-16:43:20.
Detective Parks' interview of Petitioner was played in its entirety to the jury during Petitioner's trial. Trial Tr. 230-32.
III. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The AEDPA directs courts to “ensure a level of ‘deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if “a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (per curiam) (quotations omitted). Under this deferential standard, even a showing of “clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
“[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004) (citations omitted). Consequently, federal habeas “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
IV. Sufficiency of the Evidence
In Petitioner's first ground for relief, he contends the State presented insufficient evidence to support his conviction for Lewd or Indecent Acts with a Child Under Sixteen. Petitioner raised this claim on direct appeal, specifically arguing the evidence did not support a finding that he kissed M.W. “in a lewd and lascivious manner.” Doc. No. 3-26 at 15-20. In a Summary Opinion affirming Petitioner's conviction, the OCCA found that “[t]he evidence is sufficient to show lewd or indecent acts with a child under sixteen.” Doc. No. 3-28 at 2.
For habeas review, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). Both direct and circumstantial evidence is considered in determining whether evidence is sufficient to support a conviction. Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). In applying this standard, the Court “may not weigh conflicting evidence nor consider the credibility of witnesses,” but must “accept the jury's resolution of the evidence as long as it is within the bounds of reason.” Messer, 74 F.3d at 1013 (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
In this case, the sufficiency of the evidence inquiry is based on Oklahoma law which defines the substantive elements of the crime. Jackson, 443 U.S. at 309, 324 n.16. In Oklahoma, the elements of Lewd or Indecent Acts to a Child Under Sixteen are:
First, the defendant knowingly and intentionally;
Second, touched or felt;
Third, the body;
Fourth, of a child under sixteen years of age;
Fifth, in any lewd or lascivious manner; and
Sixth, the defendant was at least three years older than the child.A.O. v. State, 447 P.3d 1179, 1181 n.4 (Okla. Crim. App. 2019) (citing Oklahoma Uniform Jury Instruction-Criminal 2nd 4-129; Okla. Stat. tit. 21, § 1123(A)). As in his direct appeal, Petitioner's primary challenge to the sufficiency of the evidence presented is that the State did not show beyond a reasonable doubt that he kissed M.W. in a “lewd or lascivious manner.”
The trial court properly instructed the jury as to the elements of Petitioner's crime. Trial O.R. 90, Inst. No. 19. Okla. Stat. tit. 21, § 1030 (6)(a) defines lewdness as “any lascivious, lustful or licentious conduct.” The trial court also properly instructed the jury that “[t]he words ‘lewd' and ‘lascivious' have the same meaning and signify conduct which is lustful and which evinces an eagerness for sexual indulgence.” Id.; see also Chandler v. Farris, No. CIV-12-235-R, 2014 WL 6775428, at *8 (W.D. Okla. Dec. 1, 2014) (noting that Oklahoma law provides that “[t]he words ‘lewd' and ‘lascivious' have the same meaning and signify conduct which is lustful and which evinces an eagerness for sexual indulgence.” (citing Huskey v. State, 989 P.2d 1, 5 (Okla. Crim. App. 1999), overruled on other grounds by A.O., 447 P.3d at 1182).
To the extent Petitioner complains Oklahoma law does not define lewd or lascivious, see Doc. No. 19 at 3-11, the statute and corresponding jury instruction and case law negate this argument.
Petitioner argues that the State did not present evidence to prove the element of touched, nor the lewd or lascivious element. Doc. No. 1 at 5; Doc. No. 3 at 4-5; Doc. No. 19 at 4-13. Petitioner likens his actions with M.W. to an aunt repeatedly asking her nephew to give her a kiss. Doc. No. l9 at 13. He also relies on Bible scriptures to argue that kissing M.W. was a kindhearted act, as opposed to a criminal one. Doc. No. 1 at 9-10; Doc. No. 3 at 5.
The question is not whether the evidence presented at trial could have supported Petitioner's interpretation of the events but whether it was objectively unreasonable for the OCCA to conclude the State presented sufficient evidence at Petitioner's trial that the jury could have found Petitioner guilty of touching and lewd or lascivious conduct beyond a reasonable doubt. The Tenth Circuit has explained:
[I]n a sufficiency challenge, the pertinent question is whether the evidence introduced at the trial resulting in the defendant's conviction is sufficient to allow a rational trier of fact to convict. Of course, defense counsel was free to attempt to impeach [a witness] at the second trial by pointing to inconsistencies between her testimony then and at the first trial. And, the jury was free to disbelieve [the witness] on account of those putative inconsistencies. But all that proves is that a rational juror might not accept [the witness's] testimony at the second trial; it doesn't show that a rational juror could not accept it, which is the question on which a sufficiency challenge necessarily must focus.Matthews v. Workman, 577 F.3d 1175, 1185 (10th Cir. 2009).
During trial, the State presented evidence that Petitioner touched M.W. and committed lewd or indecent acts with her. Petitioner specifically admitted that he utilized his tongue in the third kiss between himself and M.W. As Respondent notes, many courts have concluded that kissing in which at least one party utilizes their tongue, i.e. French kissing, constitutes touching and is a lewd or lascivious act, including within Oklahoma's law defining the same. See State v. Stout, 114 P.3d 989, 993 (Kan.Ct.App. 2005) (“A french kiss or tongue kiss is indisputably a touching; moreover, it is a touching that is not necessarily innocent, dependent upon the circumstances. Given the weight of authorities acknowledging that such kissing can be intimate sexual contact, we decline to hold as a matter of law that such contact cannot be lewd touching for purposes of [Kansas state law]. Whether such contact was lewd given the totality of the circumstances was a question for the jury.”); see also Marra v. State, 970 So.2d 475, 476, 477-78 (Fla. Dist. Ct. App. 2007) (holding that whether the defendant's kissing of an eleven-year-old child constituted lewd or lascivious conduct was a jury question); State v. Coleman, 214 P.3d 158, 163 (Wash.Ct.App. 2009) (“A jury could reasonably infer that kissing with tongues constitutes contact with intimate parts for purposes of sexual gratification ....”); People v. Calusinski, 733 N.E.2d 420, 426 (Ill.App.Ct. 2000) (affirming conviction for criminal sexual abuse based on allegation that the defendant “placed his tongue in the mouth of a six-year-old girl,” explaining, “Despite the defendant's assertions, we cannot ascribe an innocent motive to such conduct.... a ‘french kiss' is an inherently sexual act which generally results in sexual excitement and arousal.”); Cornelius v. State, 445 S.E.2d 800, 804 (Ga.Ct.App. 1994) (holding that evidence the defendant “French” kissed the eleven-year-old victim was sufficient to authorize the jury's finding that the defendant was guilty of child molestation with the intent to arouse his sexual desires).
Earlier within this recommendation, the undersigned summarized the majority of the evidence presented at trial. See, supra. A review of that evidence clearly supports a finding that the State presented sufficient evidence to support a conclusion that Petitioner's actions were lewd or lascivious. It is unnecessary to repeat that summarization in detail, however, most notably, aside from the kisses themselves, Petitioner only initiated such contact when he was alone with M.W, and he admitted that he talked her into the first kiss. He also escalated the contact by the third kiss, utilizing his tongue. On that same date, Petitioner asked M.W. to marry him because he knew he would get an honest answer in light of M.W.'s youth. Additionally, Petitioner admitted that, in spite of the fact that M.W. was a nine-year-old child, her kisses made him feel special because he had not had intimate contact with a female in twenty years. Considering the testimony and evidence and viewing all reasonable inferences therefrom in the State's favor, the OCCA's conclusion that the evidence was sufficient to find Petitioner not only touched M.W. but, in doing so, committed lewd or lascivious acts, was not an unreasonable application of Jackson and was not based upon an unreasonable determination of the facts.
V. Excessive Sentence
Petitioner contends his sentence of twenty-five years imprisonment was excessive for his conviction of Lewd or Indecent Acts with a Child Under Sixteen. Doc. No. 1 at 6-7. Petitioner raised this issue on appeal and the OCCA affirmed his sentence.
This Court will not disturb a sentence within statutory limits unless it is so excessive as to shock the conscience. Pullen v. State, [], 387 P.3d 922, 928 [Okla. Crim. App. 2016). Appellant's sentence is the minimum allowed for lewd or indecent acts against a child under [sixteen] years of age. This sentence does not meet the exacting shock the conscience test, and no relief is warranted.Doc. No. 15-6 at 3.
A habeas court affords “wide discretion to the state trial court's sentencing decision, and challenges to that decision are not generally constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits or unauthorized by law.” Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). Federal habeas review generally ends “once we determine the sentence is within the limitation set by statute.” Id. In this case, Petitioner's sentence was within the sentencing range for the crime charged, as established under Oklahoma law. There is no basis for habeas relief based on the Petitioner's sentence.
VI. Remaining Grounds
Respondent contends Petitioner's remaining grounds are procedurally barred from habeas review. The Court agrees. Generally, “a federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule.” Davila v. Davis, __ U.S. __, 137 S.Ct. 2058, 2064 (2017). A state procedural rule “is independent if it is separate and distinct from federal law,” and “is adequate if it is ‘strictly or regularly followed' and applied ‘evenhandedly to all similar claims.'” Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)).
Because procedural default is an affirmative defense, the state bears the burden to assert it. Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999). When a petitioner argues that a state procedural rule is inadequate, the state bears “the burden of proving the adequacy of a state procedural bar[.]” Id. at 1217. However, even if the State makes this showing, a federal court may review a procedurally defaulted claim if “the prisoner can [1] demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or [2] demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Whether a state procedural bar is “adequate” to bar federal habeas review “is a matter of federal law.” Johnson v. Lee, 578 U.S. 605, 608 (2016). “To qualify as an ‘adequate' procedural ground, a state rule must be ‘firmly established and regularly followed.'” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). “[A] discretionary [state procedural] rule can be ‘firmly established' and ‘regularly followed'-even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.” Id. Thus, in determining whether a state procedural rule is “adequate” the appropriate question is whether the state court's “application of the particular procedural default rule [at issue] to all similar claims has been evenhanded in the vast majority of cases.” Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (quoting Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995)).
To the extent Petitioner also raised sufficiency of the evidence in Ground One, the undersigned previously addressed that claim on the merits herein.
In Ground One, Petitioner asserts ineffective assistance of trial counsel based on “[c]onflict of interest on 11-2-2018, failure to Investigate Defense, Evidence, failure to move for suppression of Evidence, failure to Object during trial and Object to Jury's Instruction.” Doc. No. 1 at 5. Petitioner essentially concedes that he did not raise these issues before the state court, however, he asserts that this failure was due to the ineffective assistance of his appellate counsel. Id.
In Petitioner's direct appeal, his appellate counsel raised the following issues: (1) the State presented insufficient evidence to support Petitioner's conviction; (2) ineffective assistance of trial counsel based on counsel's waiving an opening statement and allegedly conceding guilt in his closing argument without Petitioner's consent; (3) and excessive sentence. Doc. No. 15-5 at 15-25. With regard to Petitioner's ineffective trial counsel assistance claims, the OCCA stated, “Reviewing the lack of an opening statement under the deficient performance and prejudice test of Strickland v. Washington, 466 U.S. 668[] (1984), no relief is warranted.” Doc. No. 15-6 at 2. As to Petitioner's assertions regarding closing argument, the OCCA found that “no concession of guilt actually occurred. Counsel's tactical concession of some unfavorable facts while trying to obtain a long-shot acquittal based on the lack of an essential element (here, lewdness) does not violate a client's Sixth Amendment” right. Id. at 2-3 (citing McCoy v. Louisiana, 138 S.Ct. 1500, 1510 (2018)).
Following the OCCA's ruling, Petitioner filed a petition for rehearing with the OCCA. Doc. No. 15-7. Therein, Petitioner raised additional claims for ineffective assistance of trial counsel, including that counsel had a conflict of interest, was unprepared for trial, failed to gather witnesses, and failed to object to hearsay or misleading evidence. Id. at 5-6, 17. He also stated that he tried to fire his trial counsel and the trial court forced him to proceed with the assigned counsel, creating a conflict of interest. Id. at 6, 17. As previously noted, the OCCA rejected the petition for rehearing as untimely based on Rule 3.14 of the Rules of the Oklahoma Court of Criminal Appeals. Doc. No. 15-8.
The OCCA also noted the Petition for Rehearing was unauthorized as it was filed by Petitioner pro se while represented by an attorney of record. Id.
In Petitioner's application for post-conviction relief, he attempted to raise several ineffective assistance of trial counsel claims, including failure to consult with Petitioner regarding a direct appeal and failure to file same, move for suppression of Petitioner's police interview, object to a jury instruction and to prosecutor misconduct, investigate defenses, move to break down police interview into individual clips in order to explain why Petitioner said certain remarks, ask better questions during trial, focus on why M.W. “kept changing her story,” prove the police fabricated certain dates and times, present an opening statement, present an adequate closing argument, and investigate generally, as well as asserting trial counsel had a conflict of interest. Doc. No. 3-37 at 9-11, 16-18, 19-20, 21, 22-23, 26, 27-28. Petitioner raised ineffective assistance of appellate counsel in his application for post-conviction relief arguing appellate counsel should have asserted that trial counsel was ineffective based on his failure to consult with Petitioner about a direct appeal and to file the same. Id. at 9-11, 12-13. The trial court denied post- conviction relief, finding Petitioner's claims “either are barred because they were presented in his appeal and decided against him, [] barred because they could have been presented in his appeal but were not, or fail as a matter of law.” Doc. No. 15- 10.
Petitioner's time to appeal initially expired without him filing a direct appeal. Petitioner filed an application for post-conviction relief with the state district court requesting leave to file an appeal out of time. The state court recommended granting the same. Petitioner submitted the same request to the OCCA. The OCCA granted Petitioner's request, allowing him to file an appeal out of time. Doc. No. 15-4.
In several of these grounds for relief, Petitioner made a vague reference to his appellate counsel as well as other state actors. Doc. No. 15-9 at 16, 17-18, 19-20, 23-24. However, his discussion in each ground pertained solely to the actions of trial counsel. Petitioner filed the same document in his appeal to the OCCA. Doc. No. 15-11. The OCCA construed Petitioner's filing as raising multiple ineffective assistance of trial counsel claims and only one ineffective assistance of appellate counsel claim. Doc. No. 15-12 at 2. The Court agrees with this interpretation of Petitioner's filings. See Galloway v. Howard, 624 F.Supp.2d 1305, 1320 (W.D. Okla. 2008) (holding the petitioner's assertion of ineffective assistance of appellate counsel because he “failed to raise meritorious claims” was too “vague” to warrant consideration, stating, “Without identification of the theories that Mr. Galloway thinks were improperly omitted, the federal district court cannot assess their validity or the potential prejudice.” (quotations omitted)).
Petitioner filed an appeal of the trial court's denial of post-conviction relief, raising the same claims. Doc. No. 15-11. The OCCA affirmed the trial court's ruling, explaining, “With the exception of his ineffective assistance of appellate counsel claim, the issues Petitioner asserts in this matter either were or could have been raised during his trial or in his direct appeal.” Id. at 2. Based on this, the OCCA found that the latter claims were procedurally barred pursuant to Okla. Stat. tit. 22, § 1086. Id. With regard to the ineffective appellate counsel claim, the OCCA concluded that Petitioner did not “establish why or how his direct appeal should have been different. He asserts claims of actual innocence, but offers no facts or evidence which supports those claims or which might establish how his jury erred in finding him guilty beyond a reasonable doubt.” Id. At 3.
Here, Petitioner's ineffective assistance of trial counsel claims are procedurally barred from habeas review. Petitioner raised these claims for the first time in his petition for rehearing following the OCCA's denial of his direct appeal. See, supra. The OCCA rejected the same based upon Rule 3.14 of the Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. Petitioner raised a portion of his ineffective trial counsel claims in his application for postconviction relief. However, the trial court denied those claims as barred pursuant to Okla. Stat. tit. 22, § 1086 because Petitioner could have raised them in his direct appeal. Because Petitioner's ineffective assistance of trial counsel claims have been procedurally defaulted in state court, if the laws upon which the state court relied in making such rulings are independent and adequate, the claims are not subject to federal habeas review.
Respondent argues that Rule 3.14 is an independent and adequate ground to bar review of Petitioner's ineffective assistance claims raised in his petition for rehearing. In his Reply, Petitioner did not challenge the independence or adequacy of the OCCA's application of Rule 3.14 to bar review of his claims. Thus, this Court may presume that Rule 3.14 is an independent and adequate ground for barring habeas review of his federal claims. See Hooks, 184 F.3d at 1216-17 (explaining that once state pleads affirmative defense of an independent and adequate state procedural bar, the burden shifts to the petitioner who must set forth specific factual allegations as to the inadequacy of the state procedure). See also Fleeks v. Poppell, 97 Fed.Appx. 251, 260 (10th Cir. 2004) (finding habeas claim procedurally barred where the petitioner failed to put at issue the adequacy of Oklahoma's remand procedure).
Additionally, it is well-established that the procedural bars set forth in Oklahoma's Post Conviction Procedure Act, Okla. Stat. tit. 22, § 1086, are both independent and adequate procedural bars. See, e.g., Welch v. Workman, 639 F.3d 980, 994 n.6 (10th Cir. 2010) (“Under Oklahoma law, claims previously raised and rejected are barred by res judicata. Both the res judicata bar to claims previously rejected in the state courts and the waiver rule for claims not previously raised . . . are included in Okla. Stat. [] tit. 22, §§ 1086 and 1089, and both are regularly and even-handedly applied by the state courts.”) (quotations and citation omitted); Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) (stating that Okla. Stat. tit. 22, § 1086 “is an independent and adequate state ground for denying habeas relief”).
Where, as here, habeas claims raised are barred from federal habeas review based on an independent and adequate state ground, a petitioner may overcome the bar only by demonstrating either cause for the default and actual prejudice or by demonstrating that a fundamental miscarriage of justice will occur if the Court does not review the defaulted claim. Coleman, 501 U.S. at 750. See also Davila, 137 S.Ct. at 2062 (“A state prisoner may be able to overcome [a procedural] bar, however, if he can establish ‘cause' to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error”).
“Cause” for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him, impeded his efforts to comply with the state's procedural rule. Smith v. Allbaugh, 921 F.3d 1261, 1267-68 (10th Cir. 2019). The miscarriage of justice exception to the bar from considering claims procedurally defaulted in the state courts requires a petitioner to “supplement[] his constitutional claim with a colorable showing of factual innocence.” Herrera v. Collins, 506 U.S. 390, 404 (1993) (quotations omitted).
Petitioner asserts ineffective assistance of appellate counsel as cause for his failure to raise trial counsel ineffectiveness claims on appeal. Doc. No. 1 at 5. Ineffective appellate counsel can serve as a cause and prejudice to prevent application of a procedural bar. Harmon v. Sharp, 936 F.3d 1044, 1063 (10th Cir. 2019). Notably, however, the petitioner is required to properly present the ineffective appellate counsel claim to the state court prior to relying on it as cause for the trial counsel claim. Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (holding that an ineffective assistance of appellate counsel claim must be presented to state court as an independent claim before it can be used to establish cause for procedural default); Smith, 921 F.3d at 1268 (“The state accurately points out that when a petitioner relies on an [ineffective assistance of counsel] claim to establish cause to overcome a procedural default, the petitioner must first exhaust that [ineffective assistance] claim in state court.”); see also Hendrick v. Whitten, No. 18-CV-0596-TCK-JFJ, 2021 WL 5828369, at *15 (N.D. Okla. Dec. 8, 2021) (finding the petitioner had only exhausted his ineffective assistance of appellate counsel claim as to one alleged deficiency by trial counsel and thus, could not rely on an appellate counsel claim as cause to overcome procedural bar against other ineffective trial counsel claims).
Petitioner has not properly presented ineffective assistance of appellate counsel to the state court in relation to the underlying ineffective trial counsel claims he has asserted herein. As discussed, Petitioner exhausted an ineffective assistance of appellate counsel claim only as to trial counsel's failure to consult with Petitioner about a direct appeal and to file the same, but has not raised it as to the remainder of his ineffective trial counsel claims.
Based on Petitioner's failure to properly present his current challenge to the OCCA, the Court could dismiss this claim and Petitioner would be provided an opportunity to return the state court. However, because the basis for this claim was clearly known to Petitioner at the time of his post-conviction application and subsequent appeal, Oklahoma would deem the same claim waived and procedurally barred. King v. State, 29 P.3d 1089, 1090 (Okla. Crim. App. 2001) (“All claims which could have previously been raised [in the direct appeal or in a previous postconviction proceeding] but were not are waived ....”). Accordingly, Petitioner has no prospect of obtaining relief in state court for this claim. In situations such as this, federal courts apply an anticipatory bar. Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007) (“Anticipatory procedural bar occurs when the federal courts apply [a] procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” (quotations omitted)). Because Petitioner has not exhausted his ineffective appellate counsel claim and the claim would be procedurally barred if he now attempted to raise it in state court, he may not assert it here as cause for his procedural default.
A prisoner who cannot demonstrate cause and prejudice may invoke the miscarriage-of-justice exception to obtain review of a procedurally defaulted claim. Coleman, 501 U.S. at 750. That exception applies only if the petitioner presents a credible claim of actual innocence. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief.”). “To be credible, a claim of actual innocence requires a petitioner to present ‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Fontenot v. Crow, 4 F.4th 982, 1031 (10th Cir. 2021) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Because Petitioner has not presented any new evidence of actual innocence to support a fundamental miscarriage of justice exception, the undersigned finds that Petitioner's ineffective assistance of trial and appellate counsel claims are procedurally defaulted and not subject to federal habeas review.
B. Ground Two
In Ground Two, Petitioner states, “Following the laws the whole process needs to be re-examined on this case. (25) year's [sic] and a life time of voting right's [sic] taken for a girl giving a man (3) kisses. Could not get the transcripts, witnesses, or Affidavit when needed. There is no equal Protection of law when the vidio [sic] evidence is modified and the trial Judge let's [sic] them ” Id. at 7. To the extent Petitioner is challenging his sentence as excessive, the undersigned addressed the merits of that claim above. The remainder of Petitioner's claims in the second ground are procedurally barred from review.
Petitioner never properly raised these grounds for relief in state court. In his Petition for Rehearing, Petitioner asserted that the State manipulated the video of his police interview. The OCCA rejected the same based on procedural grounds set forth in Rule 3.14 of the Rules of the Oklahoma Court of Criminal Appeals. As previously stated, Petitioner has not challenged the independence or adequacy of the OCCA's application of Rule 3.14 to bar review of his claims. Thus, this Court presumes Rule 3.14 is an independent and adequate ground for barring habeas review of his federal claims. Hooks, 184 F.3d at 1216-17.
Further, Petitioner never raised the remainder of his claims in state court. Because the basis for these claims were or should have been known to Petitioner at the time of his post-conviction application and subsequent appeal, Oklahoma would deem the same claim waived and procedurally barred. King, 29 P.3d at 1090. Again, the Court finds nothing in the record to support a credible claim of actual innocence. Because the procedural default doctrine bars habeas review, the Court should deny this ground for relief.
C. Ground Three
In Ground Three, Petitioner challenges, inter alia, the lawfulness of his police interview, stating, “I was called to the police station and was interviewed. I was never informed of the nature and cause of the accusation until[] nine (9) days later. Getting arrested Two (2) day's [sic] before the probable cause warrant was issued. I told the officer my dogs are home alone. The officer didn't care, so they starved for three (3) days, my car got seized and put up for auction with a bail I could not afford.” Doc. No. 1 at 8. Petitioner asserts that he raised these claims in his petition for rehearing following the OCCA's ruling on direct appeal. Id. at 8.
Presuming without deciding Petitioner did indeed raise these grounds in his petition for rehearing, the OCCA rejected the same based on procedural grounds set forth in Rule 3.14 of the Rules of the Oklahoma Court of Criminal Appeals. As previously stated, Petitioner has not challenged the independence or adequacy of the OCCA's application of Rule 3.14 to bar review of his claims. Thus, this Court presumes Rule 3.14 is an independent and adequate ground for barring habeas review of his federal claims. Hooks, 184 F.3d at 1216-17.
Further, to the extent Petitioner never raised these claims in state court, because the bases for these claims were or should have been known to Petitioner at the time of his post-conviction application and subsequent appeal, Oklahoma would deem the same claim waived and procedurally barred. King, 29 P.3d at 1090. Again, the Court finds nothing in the record to support a credible claim of actual innocence. Because the procedural default doctrine bars habeas review, the Court should deny this ground for relief.
D. Ground Four
In Ground Four, Petitioner asserts the law under which he was convicted is unconstitutional, asserting, “With (6) page's [sic] of state law on the charge of Title 21-1123(A)(2) need to be compared to Federal law to see how unconstitutional it is and how it was used to charge me and the fact that it is taking 25 years and voting right's [sic] for a life time, for (3) kisses a girl gave me. That in the Bible is a good hearted act ....” Id. at 9-10. Petitioner has not previously challenged the constitutionality of the state criminal law under which he was convicted. Because the basis for this claim was or should have been known to Petitioner at the time of his post-conviction application and subsequent appeal, Oklahoma would deem the same claim waived and procedurally barred. King, 29 P.3d at 1090. Again, the Court finds nothing in the record to support a credible claim of actual innocence. Because the procedural default doctrine bars habeas review, the Court should deny this ground for relief.
VII. Previous Conviction
Finally, Petitioner challenges the revocation of the suspended sentence he received in his previous criminal conviction of Domestic Assault and Battery with a Dangerous Weapon. Oklahoma State Court Network, State v. Prentice, District Court of Garfield County, Case No. CF-2014-331, supra, in which Petitioner received a five year suspended sentence. On December 28, 2017, following Petitioner's arrest on the charge of Lewd or Indecent Behavior with a Child Under Sixteen, the State filed an application to revoke suspended sentence. Id. On August 30, 2018, the State held a hearing on the same. Id. The transcript of the preliminary hearing in Petitioner's criminal proceeding for Lewd or Indecent Behavior with a Child Under Sixteen was entered into the record. Id. The trial court granted the State's application and revoked Petitioner's sentence with credit for time served. Id. In the present case, Petitioner's challenge to the state court's decision to revoke his sentence is untimely.
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[.]” The state court revoked Petitioner's sentence on August 30, 2018. Petitioner's revocation became “final” under 28 U.S.C. § 2244(d)(1)(A) on Monday, September 10, 2018, when the time for Petitioner to file a Notice of Appeal expired. Burnham v. State, 43 P.3d 387, 390 (Okla. Crim. App. 2002) (“A revocation appeal is therefore brought by Petition in Error, and ‘[t]he appropriate appeal time commences upon imposition of the order revoking suspended sentence.' Rule 1.2(D)(4)(1).”); Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (providing ten days to file a petition in error to challenge the revocation of a suspended sentence).
Thus, Petitioner had one year beginning on Tuesday, September 11, 2018, 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 Monday, September 11, 2019. Petitioner did not file this action until January 19, 2022.
B. Statutory Tolling
28 U.S.C. § 2244(d)(2) provides, “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 filed an application for post-conviction relief on January 16, 2020, requesting leave to file a certiorari appeal out of time. Oklahoma State Court Network, State v. Prentice, District Court of Garfield County, Case No. CF-2014-331. Thus, Petitioner's application was filed well after the expiration of his statute of limitations. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for postconviction relief filed within the one year allowed by [the] AEDPA will toll the statute of limitations.”). Therefore, Petitioner is not entitled to statutory tolling.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=garfield&number=CF- 2014-331
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 does not allege that he was prevented from pursuing a writ of habeas corpus in a timely manner.
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, 569 U.S. at 386. 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, 513 U.S. at 329).
Here, Petitioner does not set forth new evidence indicating he was innocent of the underlying crime in this matter. Instead, he asserts a conclusory statement regarding this previous conviction that he “found out later [he] was not Guilty . . . by law.” Doc. No. 1 at 2. Though not sufficient to establish actual innocence, this statement also indicates Petitioner believes himself to be legally innocent, rather than factually innocent. “To serve as a basis for equitable tolling of the limitations period, ‘actual innocence means factual innocence, not mere legal insufficiency.'” Lowery v. Bryant, 760 Fed.Appx. 617, 619 (10th Cir. 2019) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
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 that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be denied to the extent Petitioner is challenging his conviction and sentence for Lewd or Indecent Acts to a Child Under Sixteen (Case No. CF-2017-686). Additionally, to the extent Petitioner is challenging his conviction and sentence for Domestic Assault and Battery with a Dangerous Weapon (Case No. CF-2014-331), the Petition should be dismissed without prejudice as untimely.
Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by September 5th , 2022. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, 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 Supplemental 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.