Opinion
Case No. CIV-19-1069-D
06-04-2020
CURTIS BERNARD SEALS, Petitioner, v. R. SMITH, Warden, Respondent.
REPORT AND RECOMMENDATION
Curtis Bernard Seals (Petitioner), a pro se Oklahoma prisoner, seeks habeas relief under 28 U.S.C. § 2254 from a 2017 conviction and sentence. See Docs. 1, 11. Chief United States District Judge Timothy D. DeGiusti referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 3. Respondent has moved to dismiss the petition as time barred and filed a brief in support of the motion. See Docs. 19-20. Petitioner has responded. See Doc. 22.
Citations to a court document are to its electronic case filing designation and pagination. Unless otherwise indicated, quotations are verbatim.
Petitioner has also submitted a motion to vacate his conviction and sentence, a "motion to proceed with newly discovered evidence and motion to quash, dismiss and set aside the information," and three letters to the court. See Docs. 17, 21, 23-25. To the extent that these documents stray beyond the boundaries of the timeliness issue, the undersigned has not considered them.
For the reasons below, the undersigned Magistrate Judge recommends the court grant Respondent's motion to dismiss the petition as time-barred.
I. Procedural background.
Petitioner pleaded no contest to five counts of indecent or lewd acts with a child under the age of sixteen in the District Court of Oklahoma County. See Doc. 20, Ex. 1. The state district court sentenced Petitioner on May 2, 2017 to concurrent sentences of twenty-years' imprisonment on each count with all but the first nine years suspended. See id. Ex. 2, at 1-2. Petitioner did not timely move to withdraw his plea and his conviction and sentence became final on May 12, 2017. See id. Ex. 3; Ex. 4, at 13. See also Canady v. Bryant, 779 F. App'x 528, 529 (10th Cir. 2019) ("Under Oklahoma law, a conviction arising from a guilty plea that is not appealed becomes final ten days after the entry of judgment and sentence." (citing Fisher v. Gibson, 262 F.3d 1135, 1138 (10th Cir. 2001)).
Although Petitioner submitted a letter to the state district court to "take back his plea," the letter, received by the court on May 16, 2017, was untimely and the court did not consider it. See Doc. 20, Ex. 3; Ex. 4, at 13.
Petitioner filed his first application for post-conviction relief in the state district court on September 14, 2018. See Doc. 20, Ex. 5. He asserted the trial court lacked jurisdiction to convict him because he is a "Choctaw Nation citizen" and his crime occurred "within the boundaries of the [] Potawatomi Nation reservation." Id. Ex. 5, at 2-3. He also asserted the trial court lacked "a factual basis upon which to accept" Petitioner's plea. Id. Ex. 5, at 5. Petitioner, appearing at a hearing with counsel, later withdrew the application and the court entered an "Amended Summary of Facts" form which "corrected the State's inadvertently omitted offer of proof." Id. Ex. 4, at 13-14; Ex. 6, at 7; Ex. 8, at 1.
Petitioner resubmitted his application for post-conviction relief on October 19, 2018, again asserting the trial court lacked jurisdiction to convict him based on his tribal citizenship and the location of his crime. Id. Ex. 4, at 14; Ex. 7, at 2-3. Petitioner also alleged ineffective assistance of his plea counsel for failing to raise the jurisdiction issue. Id. Ex. 7, at 6-7. The trial court denied the application on April 10, 2019. Id. Ex. 8. The Oklahoma Court of Criminal Appeals affirmed the denial in an order issued on June 28, 2019. Id. Ex. 11.
Petitioner filed his petition for habeas relief in this court on November 19, 2019, and an amended petition on December 23, 2019. Docs. 1, 11.
II. Petitioner's habeas claims.
Petitioner raises three claims in his habeas petition. In Ground One, Petitioner asserts the state trial court lacked jurisdiction because Petitioner "and/or the victim are Native Americans within the meaning of Federal law and the alleged crime occurred in Indian Country as defined by 18 U.S.C. [§§] 1151, 1153." Doc. 11, at 4-5; see also Doc. 1, at 2. In Ground Two, Petitioner alleges ineffective assistance of counsel because counsel failed "to assert that the trial court did not have jurisdiction to prosecute Petitioner since Petitioner is an [sic] Mississippi Choctaw Indian" and because during the "negotiation phase counsel failed to investigate the mental health of the petitioner [] allowing petitioner to continue to agree and sign a plea agreement of (20) twenty years imprisonment." Doc. 11, at 6-7; see also Doc. 1, at 2-3. In Ground Three, Petitioner asserts "Double Jeopardy" because the state sentenced Petitioner "to five counts of the same offense." Doc. 11, at 8; see also Doc. 1, at 1-2.
Petitioner admits he has failed to exhaust this claim in state court and explains he "became aware of this violation" "through the study of the law" after he had pursued his "state remedies." Doc. 11, at 8. Respondent asserts he "affirmatively does not waive the exhaustion requirement as to any and all of Petitioner's claims." See Doc. 20, at 12 n.8.
III. Analysis.
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996.
AEDPA established a one-year limitation period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitation period:
The limitation period shall run from the latest of—
Id. The statute includes a tolling provision for properly filed post-conviction actions:(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.
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 shall not be counted toward any period of limitation under this subsection.Id. § (d)(2).
1. Starting date under 28 U.S.C. § 2244(d)(1)(A).
Respondent contends that § 2244(d)(1)(A) applies to this case. Under Respondent's theory, Petitioner's conviction became final on May 12, 2017, ten days after he entered his plea, Petitioner's statutory one-year limitation period began to run the next day, and Petitioner's statutory year expired on May 13, 2018, thus barring his habeas petition from consideration. Doc. 20, at 2-4.
The limitation period generally runs from the date the judgment becomes "final," as provided by § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). The state district court sentenced Petitioner on May 2, 2017. See Doc. 20, Ex. 2. Petitioner did not timely move to withdraw his plea or file a direct appeal. As a result, Petitioner's conviction became final under § 2241(d)(1)(A) on May 12, 2017, when the ten-day period for Petitioner to move to withdraw his no contest plea expired. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.; Canady, 779 F. App'x at 529. The one-year period of limitation begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011). If the starting date for Petitioner's limitation period is the date his conviction became final under § 2244(d)(1)(A), then, absent tolling, his habeas petition is barred by AEDPA's limitation period which expired on May 13, 2018.
The trial court's subsequent correction of Petitioner's plea papers, which did nothing to alter the finality of Petitioner's judgment and sentence, also did not re-start the limitation period. See, e.g., Ezell v. Allbaugh, 777 F. App'x 271, 274 (10th Cir. 2019) ("[A] judgment that merely corrects a clerical error in an earlier judgment is not a new judgment that begins a new one-year limitations period under § 2244.").
2. Alternative starting date under 28 U.S.C. § 2244(d)(1)(C) or (D).
Petitioner asserts he timely filed his habeas corpus petition. See Doc. 11, at 13 ("I'm within my one-year time frame."). He also asserts his jurisdictional claim "may be brought up at anytime and cannot be waived." See Doc. 1, at 2. Liberally construing Petitioner's pleadings, he appears to invoke either § 2244(d)(1)(C) or (D) as alternative starting points for filing his habeas corpus petition. The undersigned concludes neither section applies.
A claim the trial court lacked jurisdiction to accept Petitioner's plea, "as with any other habeas claim" "is subject to dismissal for untimeliness." Murrell v. Crow, 793 F. App'x 675, 679 (10th Cir. 2019) (internal quotation marks omitted). The Tenth Circuit's decision in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cited by Petitioner in his petition, does not alter this conclusion or extend the limitation period under § 2244(d)(1)(C) because it is not a Supreme Court decision. See Canady, 779 F. App'x at 530 (holding Murphy is "not a Supreme Court decision and therefore could not create new law relevant under § 2244(d)(1)(C)"). Thus, § 2244(d)(1)(C) cannot be applied to alter the start date.
Under § 2244(d)(1)(D), a petitioner can establish a later trigger date if he shows he could not have timely discovered, through the exercise of due diligence, the factual predicate of his claims. See, e.g., Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (holding petitioner had demonstrated due diligence in discovering the factual predicate of his claim). Petitioner, however, "knew the factual predicate for his jurisdictional claim - i.e., the location of his crimes and his status as a tribal member - when he entered" his plea. Jackson v. Bryant, No. CIV-18-616-R, 2019 WL 3884872, at *2 (W.D. Okla. July 23, 2019). Thus, "even if he did not understand the legal significance of those facts until he learned of the Murphy decision," Petitioner cannot rely on § 2244(d)(1)(D) to alter the start date here. Id. (citing Parris v. Whitten, 2019 WL 2928754, at *4 (N.D. Okla. July 8, 2019)).
3. Petitioner's reference to "newly discovered evidence."
Casting a liberal eye on Petitioner's pleadings, the Court assumes Petitioner's reference to "[n]ewly discovered [e]vidence" strives to further rely on § 2244(d)(1)(D) to trigger a later start date for his one-year limitation period. Doc. 23, at 1; see also Doc. 25, at 3-5. Presumably, Petitioner's new evidence is his contention that both the arrest warrant affidavit and the victim's recitation of the dates of Petitioner's sexual abuse of her were suspect and thus undermine the validity of his convictions. Doc. 23, at 1-3; see also Doc. 25, at 5. Petitioner's asserted evidence, however, is not new.
In Petitioner's letter to the state district court only days after his plea and sentencing, he references his knowledge of this evidence at the time of his plea. See Doc. 20, Ex. 3. Given that Petitioner knew of the factual predicate at that time, he cannot show that his one-year limitation period should be triggered on any date other than May 13, 2017, the day after his conviction and sentence became final.
B. Availability and effect of tolling on the limitation period.
1. Statutory tolling.
AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. See 28 U.S.C. § 2244(d)(2). Petitioner asserts his petition is timely because he filed it within one-year of the OCCA's June 28, 2019 Order affirming the denial of his application for post-conviction relief. See Doc. 22, at 2. But the statutory tolling provision does not apply to applications for post-conviction relief filed after the one-year limitation period has expired. See Green v. Booher, 42 F. App'x 104, 106 (10th Cir. 2002) ("[S]tate application [for post-conviction relief] could not toll the federal limitation period, because [petitioner] did not file it until after the one-year period had expired."). As neither of Petitioner's post-conviction applications were filed within the one-year limitation period, he is not entitled to statutory tolling of the federal limitation period on this basis.
2. Equitable tolling.
The next issue is whether equitable tolling applies to Petitioner's petition—filed over eighteen months after the statutory deadline. "[A] [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted).
Even assuming a diligent pursuit of rights, the one-year period of limitation "is subject to equitable tolling . . . only in rare and exceptional circumstances." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation omitted). 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). Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). "Simple excusable neglect is not sufficient." Gibson, 232 F.3d at 808.
Petitioner does not particularly argue equitable tolling. He does assert he was both unaware of the law and was under the care of a doctor for mental illness during his October 2, 2018 hearing when his counsel told him "that the State was prepared to file a motion to have petitioner to sever the probation time he hadn't started yet" if he continued his post-conviction application. Doc. 11, Ex. 1, at 3. The undersigned liberally considers whether Petitioner has asserted extraordinary circumstances which stood in his way and prevented his timely filing.
Equitable tolling may be warranted "in circumstances such as adjudication of incompetence, institutionalization for mental incapacity, or evidence that the individual is not capable of pursuing his own claim because of mental incapacity." Rawlins v. Newton-Embry, 352 F. App'x 273, 276 (10th Cir. 2009) (internal quotation marks and alterations omitted). Petitioner does not allege that during the relevant time-period he was ever adjudicated incompetent, institutionalized, or was incapable of pursuing his claims. While Petitioner states he was "mentally ill" and under the care of a doctor around October 2018, he does not allege any mental incapacity during the relevant time period. There is thus no basis for equitable tolling under these circumstances.
Petitioner intimates that his lack of legal knowledge should excuse his late filing. "[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Marsh, 223 F.3d at 1220 (internal quotation marks omitted).
Lastly, Petitioner refers to his counsel's statements to him during an October 2018 hearing. But he fails to explain how his counsel's conduct at that time prevented him from timely filing his habeas corpus petition before May 13, 2018. The undersigned finds no basis to apply equitable tolling under these circumstances.
3. Fundamental miscarriage of justice.
Having found Petitioner's statute of limitations has expired, the final issue is whether to allow Petitioner to bypass the limitation period because he has presented "a 'credible showing of actual innocence.'" Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). But "[t]o be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). And Petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
Petitioner does not assert an actual, as opposed to a legal, innocence claim. See, e.g., Bousley v. United States, 523 U.S. 614, 623 (1998) ("[A]ctual innocence means factual innocence, not mere legal insufficiency." (internal quotation marks omitted)); see also Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (holding that the petitioner's claim that his guilty plea was involuntary was an issue of legal, not factual, innocence). There is thus no basis for bypassing the statute of limitations bar here.
IV. Recommendation and notice of right to object.
Petitioner filed his habeas corpus petition past the expiration of the statute of limitations. No tolling, either statutory or equitable, may be applied to save the petition. The undersigned therefore recommends granting Respondent's motion to dismiss Petitioner's petition as untimely filed. Docs. 19-20.
The undersigned advises the parties of the right to file an objection to this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Any objection must be filed with the Clerk of Court on or before June 25, 2020. The undersigned further advises the parties that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation moots all pending motions and disposes of all the issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 4th day of June, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE