Opinion
CIV-23-489-HE
07-27-2023
BRYAN KEITH ROSS, Petitioner, v. WARDEN D.C. COLE, 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. 1). United States District Judge Joe Heaton 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 June 12, 2015, in Case No. CF-2014-396, Petitioner plead guilty and was convicted by a Pontotoc County District Court of: (1) first-degree murder, (2) conspiracy to commit a felony, (3) first-degree robbery, and (4) larceny of an automobile. See ECF No. 1; State Court Docket Sheet, State of Oklahoma v. Ross, Case No. CF-2014-396 (Okla. Co. Dist. Ct. June 12, 2015). Mr. Ross did not seek to withdraw the plea, and thus failed to perfect a direct appeal in any of the cases. (ECF No. 1:2); see York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003). Petitioner sought no other review in state court until he filed an Application for Post-Conviction Relief in the Pontotoc County District Court on November 17, 2020. See State Court Docket Sheet, State of Oklahoma v. Ross, Case No. CF-2014-396 (Pontotoc Co. Dist. Ct. Nov. 17, 2020). On April 20, 2021, the Pontotoc County District Court denied the application and a review of OSCN.net reveals that Petitioner did not file an appeal. See ECF No. 1-6:1-2. On June 28, 2021, Mr. Ross filed a second post-conviction application, which the Pontotoc County District Court denied on September 8, 2021. See ECF No. 1-6:3-4 & 1-7. A review of OSCN.net reveals that Petitioner did not file an appeal. Mr. Ross filed his habeas Petition on June 5, 2023. (ECF No. 1).
See 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”).
Mr. Ross titled his motion “Rule 60-B Fraud” but the Pontotoc County District Court treated it as a Motion for Post-Conviction Relief. See Rule 60-B Fraud, State of Oklahoma v. Ross, Case No. CF-2014-396 (Pontotoc Co. Dist. Ct. Nov. 17, 2020); State Court Docket Sheet, State of Oklahoma v. Ross, Case No. CF-2014-396 (Pontotoc Co. Dist. Ct.); ECF No. 1-6:1-2.
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. Ross did not appeal from his plea, his conviction became final ten days following sentencing, on June 22, 2015. See supra. Thus, without tolling, Petitioner's one-year habeas statute of limitations to file a habeas petition expired on June 22, 2016. But Mr. Ross filed the habeas petition on June 5, 2023, nearly seven years after the limitations period had expired. (ECF No. 1). Thus, absent any statutory or equitable tolling, the action is untimely.
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). Here, Mr. Ross filed his first of two Applications for Post-Conviction Relief in the Pontotoc County District Court on November 17, 2020. See supra. But Petitioner is not entitled to any period of tolling for either post-conviction application because they were each filed after the AEDPA limitations period had already expired on June 22, 2016. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 Fed.Appx. 727, 729 (10th Cir. 2006) (“[A] petition for post-conviction relief filed in state court after the limitations period has expired no longer serves to toll it.”). Accordingly, unless equitable tolling or another exception applies, the Petition is untimely.
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 the section on “Timeliness of Petition,” Mr. Ross states that he “just recently received [his] proper documentation in order to file [his] Petition requesting that [his] conviction be voided and be given a trial in Federal Jurisdictional Court.” (ECF No. 1:13). To the extent these allegations are liberally construed as a plea for equitable tolling, the Court should reject the same because the allegations are conclusory-Mr. Ross fails to state what “documentation” he received and how “recently” he had received it. See Malone v. Oklahoma, 100 Fed.Appx. 795, 798, 2004 WL 1249850, at *2 (10th Cir. 2004) (rejecting petitioner's claim of equitable tolling, stating that the petitioner's “use of the relevant legal buzz words” is insufficient when “he fails to supply the factual background necessary to support his conclusory allegations.”). Without such information, the Court cannot discern whether any “extraordinary circumstance stood in the petitioner's way and prevented timely filing,” the necessary requisite for equitable tolling to apply. In sum, the Court should conclude that Petitioner is not entitled to equitable tolling.
In the section on “timeliness,” Petitioner also references a previous petition filed in this court, which he characterizes as his “first attempt” to challenge his conviction in federal court. (ECF No. 1:13). That petition was filed in Case No. 20-963 and had been dismissed due to Petitioner's admitted “negligence” in failing to pay the filing fee. See ECF No. 1:13; see also ECF No. 1, Ross v. Pettigrew, Case No. 20-963 (W.D. Okla. Sept. 24, 2020). To the extent Mr. Ross is attempting to argue that the current petition somehow “relates back” to the previous petition for purposes of rendering the instant case timely, such argument would also fail because the first petition, filed September 24, 2020, had been filed four years after the limitations period had expired. See supra.
Likewise, in the body of the Petition, Mr. Ross stated “Grounds 1-4 have not been raised thus far due to the priportory [sic] fact I have just came into possession of such infromation [sic]” and “none of these grounds to my knowledge have been raised, I am presenting then at this time for I just came into possession of them.” (ECF No. 1:11). But because Mr. Ross never appealed his conviction, he may still seek an appeal-out-of time in state court as is his right under Okla. Ct. Crim. App. R. 2.1(E), since he has now become aware of the factual basis for his claims.
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 53637 (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. Ross 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
Mr. Ross' deadline for filing his habeas petition expired on June 22, 2016. See supra. But Mr. Ross filed the habeas Petition on June 5, 2023, nearly seven years after the limitations period had expired. Petitioner is not entitled to equitable tolling and the actual innocence exception does not apply.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition 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 August 14, 2023 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.