Opinion
CIV-22-59-HE
06-29-2022
DANIEL JOSEPH SHORES, Petitioner, v. CHAD DENNIS, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFILED GREEN JUDGE
Petitioner Daniel Joseph Shores (“Petitioner”), a state prisoner appearing pro se,has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). For the reasons set forth below, the undersigned recommends that Petitioner's petition for habeas relief be DISMISSED with prejudice.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions 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 § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
II. Procedural History
A. Petitioner's Oklahoma County Sentence
Petitioner is a state inmate currently incarcerated at the Oklahoma State Reformatory in Granite, Oklahoma. (Doc. 1, at 4); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 538503). On May 10, 2006, Petitioner entered pleas of guilty to 45 counts of sexual abuse of a child. Oklahoma County District Court, Case No. CF-2005-5496. (See also Doc. 1, at 4-5). On the same date, the court sentenced Petitioner to 35 years of imprisonment on each count, to run concurrently. (Id. at 5). Petitioner neither sought to withdraw his guilty plea nor appealed his judgment or sentence. (Id. at 5-6).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF - 2005-5496 (Docket Sheet) (last visited June 29, 2022). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. 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.
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On July 15, 2020, Petitioner filed a Motion for Suspended Sentence before the Oklahoma County District Court. Oklahoma County District Court, Case No. CF-2005-5496 (see footnote 3). Petitioner then filed a variety of motions requesting relief from court fees and requesting copies of court records and evidence in his case. (Id.) On October 15, 2021, Petitioner filed an Application for Post-Conviction Relief. (Id.); (Doc. 1, at Ex. 3). On December 14, 2021, before the court ruled on any of Petitioner's pending motions or his Application, Petitioner appealed his Application to the Oklahoma Court of Criminal Appeals (“OCCA”). Oklahoma County District Court, Case No. CF-2005-5496 (see footnote 3); OCCA, Case No. PC-2021-1446. The OCCA declined jurisdiction over Petitioner's Application on December 28, 2021. (Id.); (Doc. 1, at Ex. 6, at 4).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC- 2021-1446 (Docket Sheet) (last visited June 29, 2022).
C. The Petition
On January 14, 2022,Petitioner filed the instant action, asserting two grounds for relief. (Doc. 1, at 14-42). In Ground One, Petitioner alleges that the Oklahoma statute that courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted). forms the basis of his conviction, “10 O.S. § 7115 . . . as written by the Oklahoma Legislature is is unconstitutional.” (Id. at 3, 14-24). Petitioner complains in Ground Two that “[t]he Oklahoma Post-Conviction Process has been rendered ineffective by the Attorney General's office, the Prosecution, the State Courts, the Oklahoma Indigent Defense System, [O.I.D.S.], and other agents of the state.” (Id. at 3, 25-42). Petitioner claims he attempted to exhaust his state remedies but was thwarted by the state. (Id. at 913) (“In short: You can lead a horse to water, but you can't make him drink, so to speak.”).
Petitioner certified that he placed his habeas petition in the mail to the court on January 14, 2022 (Doc. 1, at 42), which is the date the court deems it filed. See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
III. Analysis
A. Petitioner Did Not Timely File His Petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.Id. AEDPA includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction 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. at § 2244(d)(2).
1. The Petition is Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[,] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Because Petitioner did not file a direct appeal, his conviction became final the next business day following the ten days after the trial court entered final judgment, so, on May 22, 2006. OCCA Rules 1.5, 2.1(B). See also Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“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.”). The one-year statute of limitations began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until May 23, 2007, to file his habeas petition, absent any tolling event. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Because Petitioner did not attempt to file any form of state post-conviction relief until July 15, 2020- after the limitations period had already expired - those efforts did not result in tolling under § 2244(d)(2). See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[Petitioner's] state application [for postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”). Thus, Petitioner's habeas action, filed on January 14, 2022, is untimely under § 2244(d)(1)(A).
See Estes v. Crow, 2022 WL 301598, at *2-4 (E.D. Okla. Feb. 1, 2022) (finding Motion for Suspended Sentence served to toll the statute of limitations for purposes of AEDPA).
2. The Statute of Limitations Is Not Extended by § 2244(d)(1)(B).
Petitioner contends “that there were several unconstitutional impediment(s) that prevented him from raising these factual predicate(s)” including that (1) “[t]he Oklahoma County District Courthouse concealed all transcripts, records, and documents” needed for Petitioner's appeal “on the sole basis of his poverty;” (2) that “[t]he Petitioner's court appointed public defender and the Oklahoma Indigent Defense System . . . concealed his entire defense file” from him “on the sole basis of his poverty;” and (3) that the statute under which he was convicted was “unconstitutionally written, enacted and implemented,” and Petitioner “has NO understanding of the charged statute as it literally is not defined.” (Doc. 1, at 13).
While § 2244(d)(1)(B) allows for the statute of limitations to be calculated from “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,” the provision does not apply here. Instead, it “typically applies when the state thwarts a prisoner's access to the courts, for example, by denying an inmate access to his legal materials or a law library.” Aragon v. Williams, 819 Fed.Appx. 610, 613 (10th Cir. 2020), cert. denied, 141 S.Ct. 1106 (2021). Further, a “state-created impediment must have actually prevented the inmate from filing his application.” Id.
Throughout his Petition, Petitioner invokes the “well-pleaded Petition” filed in another case before this Court, Wonsch v. Oklahoma, Case No. CIV-21-826-PRW, indicating that Mr. Wonsch's claims are similar to his own. (Doc. 1, at 10-11). The undersigned finds the court's decision in Wonsch and the authorities cited therein instructive here:
Petitioner misunderstands section 2244(d)(1)(B)'s application. This section applies when the state has prevented the filing of a habeas action, not the discovery of a legal basis for a claim. See, e.g., Garcia v. Hatch, 343 Fed.Appx. 316, 318 (10th Cir. 2009) (rejecting petitioner's argument that the state had impeded him from timely filing a federal habeas petition “by failing to provide him with access to a law library” or “‘adequate research' in preparing his state and federal petitions”). While Petitioner alleges a nonspecific “Brady” violation because the state allegedly failed to turn over the case-evidence and transcripts to him personally, he does not allege that the state withheld evidence or information from his counsel about his case. See Sigala v. Bravo, 656 F.3d 1125, 1127 (10th Cir. 2011) (“State courts do not violate the Constitution or the laws of the United States by communicating with defendants through counsel . . . .”); cf. Heinemann v. Murphy, 401 F. App'x. 304, 309 (10th Cir. 2010) (“Courts have unanimously rejected the proposition that the absence of transcripts automatically triggers statutory tolling under § 2244(d)(1)(B)”); Clarkv. Oklahoma, 468 F.3d 711, 714 (10th
Cir. 2006) (holding that the petitioner had “failed to explain why the documents held by the state were necessary to pursue his federal claim”). And even if Petitioner's counsel failed “to turn over notes and discovery” to him, that “does not constitute state action” under this section. Bhutto v. Wilson, 669 Fed.Appx. 501, 502-03 (10th Cir. 2016); see also Sigala, 656 F.3d at 1127-28 (holding that actions by a defendant's counsel “cannot properly be ‘state action' attributable” to the state for purposes of § 2244(d)(1)(B)).Wonsch v. Oklahoma, 2022 WL 495920, at *5 (W.D. Okla. Jan. 21, 2022), report and recommendation adopted sub nom. Wonsch v. Crow, 2022 WL 493737 (W.D. Okla. Feb. 17, 2022). Thus, the actions Petitioner alleges by the Oklahoma County Courthouse and his public defenders in allegedly refusing to give him case-related information - even if true - were not state actions that denied Petitioner access to the courts or prevented the filing of a habeas action. Likewise, the actions of the state legislature in drafting an allegedly unconstitutional statute did not prevent such a filing. “Because the exception in § 2244(d)(1)(B) does not apply, the Court should apply the general rule in § 2244(d)(1)(A) and conclude the statute of limitations expired” on May 23, 2007. Id. at * 6.
B. Petitioner Is Not Entitled to Equitable Tolling or The Actual Innocence Exception.
Petitioner does not allege and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding 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”) (citation omitted). Nor does Petitioner argue he is actually innocent of the crimes at issue. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding that to present a credible claim of actual innocence “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”).
IV. Recommended Ruling and Notice of Right to Object
For the reasons discussed above, the court recommends that the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
The court advises Petitioner of his right to object to this Report and Recommendation by July 20, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises Petitioner that failure to make timely objection to this report and recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.