Opinion
CIV-21-1128-JD
02-20-2024
BILLY W. VUNCANNON, Petitioner, v. SCOTT CROW, Respondent.
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 for Forcible Sodomy and two counts of Lewd Molestation/Indecent Proposal to a Child. Cleveland County District Court, Case No. CF-2018-1015. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the action be dismissed without prejudice as untimely.
I. Background
On June 14, 2019, following a guilty plea, Petitioner was convicted of Forcible Sodomy and two counts of Lewd Molestation/Indecent Proposal to a Child. Doc. No. 1 (“Pet.”) at 10; see also Oklahoma State Courts Network, State v. VunCannon, Cleveland County District Court, Case No. CF-2018-1015. On the same date, the state trial court sentenced Petitioner to 20 years imprisonment for Forcible Sodomy and 30 years imprisonment with 10 years suspended for each of the remaining convictions. Id. The trial court also ordered that each sentence would run concurrently. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF- 2018-1015
Petitioner did not file a direct appeal. Pet. at 10. On July 14, 2020, Petitioner filed, inter alia, two subpoenas duces tecum to the Norman Police Department, seeking what he describes as vital records, and the Cleveland County Assessor's Office, seeking real property records to prove jurisdiction. Id. at 11. He also filed a motion for discovery, to which the state court directed the State to respond. Id. at 12. The state court subsequently denied Petitioner's motion. Id.; see also Oklahoma State Courts Network, State v. VunCannon, Cleveland County District Court, Case No. CF-2018-1015.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF-2018-1015
According to Petitioner, he filed his first application for post-conviction relief, which was 318 pages in length, on April 7, 2021. Pet. at 12; Doc. Nos. 1-5, 1-6, 1 7, 1-8. On July 28, 2021, the State filed a motion to strike Petitioner's application as overlength. Doc. No. 1-16 (citing Rule 16(C) of the Official Court Rules of the Twenty-First Judicial District limiting "[a]ll motions, applications, responses and replies . . .” to 25 pages). The state court granted the State's motion on July 29, 2021. Doc. No. 1-24.
Petitioner appealed the state court's order to the Oklahoma Court of Criminal Appeals (“OCCA”). Pet. at 13-14; see also Oklahoma State Courts Network, VunCannon v. State, Oklahoma Court of Criminal Appeals, Case No. PC-2021-842.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC- 2021-842
On November 10, 2021, the OCCA issued a ruling on Petitioner's appeal in which it described his state court post-conviction activity as follows:
Petitioner filed pro se pleadings in the District Court that included a praecipe, a motion for recusal of a judge, and a motion to dismiss the prosecution. The District Court properly considered the pleadings as applications seeking relief under the Post-Conviction Procedure Act, which encompasses and replaces all common law and statutory methods of challenging a conviction or sentence. 22 O.S.2011, § 1080. The District Court dismissed Petitioner's pleadings finding they exceeded page limitations.Doc. No. 1-27 at 2. The OCCA went on to affirm the state court's ruling, explaining:
The issues Petitioner tries to assert in this matter could have and should have been raised both prior to the entry of his plea, and in direct appeal proceedings from his Judgment and Sentence. He has not established any sufficient reason why the issues were not previously asserted, and thus they are waived and procedurally barred. 22 O.S.2011, § 1086;
Logan, supra. Moreover, Petitioner has not argued or established that the District Court erred by dismissing his pleadings.Id. at 2-3.
Petitioner filed the instant action on November 29, 2021, raising 22 separate grounds for relief. Pet. at 2-9. The Court will not reach the merits of these claims based on the conclusion that the Petition is untimely. See Faircloth v. Raemisch, 692 Fed.Appx. 513, 521 (10th Cir. 2017) (“[I]n order to reach the merits of [the petitioner's] § 2254 motion, [the petitioner] must first demonstrate that it was timely filed-a requirement he has not and cannot meet here.”).
II. Screening Requirements
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[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). 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 a dispositive 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 ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 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).
III. Statute of Limitations
The AEDPA establishes 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
(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.
The statute 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.” 28 U.S.C. § 2244(d)(2). To meet the “properly filed” requirement, an inmate must comply with state procedural requirements. Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (defining a “properly filed” application as “one filed according to the filing requirements for a motion for state post-conviction relief” and giving examples of such requirements); see also Frierson v. Farris, No. CIV-21-245-R, 2021 WL 5932980, at *3 (W.D. Okla. Dec. 15, 2021) (finding that where a state district court does not formally strike a pleading, “such a ruling is unnecessary in determining whether an application is properly filed” because “[i]n the Tenth Circuit, courts ‘look only at state procedural filing requirements and not at whether a state court ultimately determined the application to be procedurally barred'” (quoting Gibson v. Klinger, 232 F.3d 799, 805 (10th Cir. 2000))).
Petitioner was sentenced on June 14, 2019, following a guilty plea. See, supra. Petitioner did not file a direct appeal, and therefore, Petitioner's convictions became “final” under 28 U.S.C. § 2244(d)(1)(A) on June 24, 2019, when the ten-day time period for Petitioner to file an application to withdraw his guilty plea expired. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.; Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (noting the petitioner's Oklahoma convictions, following guilty pleas, became “final ten days after entry of Judgment and Sentence[.]”).
Thus, Petitioner had one year beginning on June 25, 2019, 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 June 25, 2020. Petitioner did not file this action until November 29, 2021.
Construing the Petition liberally, Petitioner argues that he was impeded from filing this action in a timely manner, implicating 28 U.S.C. § 2244(d)(1)(B). Specifically, Petitioner contends that he was impeded by his lawyers because they failed to provide him with his defense file, the state court because it denied his request for all public records and/or for discovery of all records vital to appellate review, and the State and/or the state court because they concealed the applicable procedural rules from him. Pet. at 16-20. Petitioner does not assert a date these alleged impediments were lifted. However, presuming he is attempting to invoke § 2244(d)(1)(B), the Court finds it does not apply.
As an initial matter, Petitioner misunderstands § 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, 319 (10th Cir. 2009) (rejecting the 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,” concluding that “[w]hile the quality of Mr. Garcia's petition might have been improved with greater legal assistance, there is no basis in the record before us to believe that Mr. Garcia was incapable of filing a timely habeas petition ....”); cf., Heinemann v. Murphy, 401 Fed.Appx. 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)”); Clark v. Okla., 468 F.3d 711, 714 (10th Cir. 2006) (finding that State's delay in providing records to the petitioner did not trigger § 2244(d)(1)(B) where the petitioner “failed to explain why the documents held by the state were necessary to pursue his federal claim ....”). Further, presuming without deciding that Petitioner's counsel refused to turn over his defense file, that “does not constitute state action” under this section. Bhutto v. Wilson, 669 Fed.Appx. 501, 502-03 (10th Cir. 2016); see also Sigala v. Bravo, 656 F.3d 1125, 1127 (10th Cir. 2011) (holding that actions by a defendant's counsel, including a public defender, “cannot properly be [] action attributable” to the state for purposes of § 2244(d)(1)(B) (quotations omitted)).
Finally, Petitioner's filings belie his allegations that he was impeded by a lack of knowledge regarding the court rules. As previously noted, the state court granted the State's motion to strike Petitioner's application for post-conviction relief because, at 318 pages in length, it violated the rule limiting court filings to 25 pages. Doc. No. 1-16; Doc. No. 1-24. On the second page of his post-conviction application, however, he specifically stated his intent to challenge the court rule limiting his filing to 20 pages. Doc. No. 1-5 at 2. Thus, while Petitioner was incorrect about the applicable page limit, he was aware his filing violated a page limit requirement. Rather than merely requesting post-conviction relief, Petitioner chose to simultaneously challenge the applicable page limit to such an application. That is a risk Petitioner took voluntarily and not action attributable to the state for purposes of § 2244(d)(1)(B)). Therefore, § 2244(d)(1)(B) does not apply to reset the limitation period in this case.
VI. 28 U.S.C. § 2244(d)(2) (Statutory Tolling)
As previously explained, the AEDPA allows for tolling the limitations period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2). Petitioner contends he filed his first application for postconviction relief on April 7, 2021, after the statute of limitations had already expired. Pet. at 12. Presuming without deciding that the documents Petitioner filed prior to the April 7, 2021 application constituted an initial application for post-conviction relief, the earliest was filed on July 14, 2020, also after the expiration of his statute of limitations. Thus, Petitioner is not entitled to statutory tolling. See Clark, 468 F.3d at 714 (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”).
VII. 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) (emphasis added). Presuming a diligent pursuit of rights, the one-year period of limitation “is subject to equitable tolling [] only in rare and exceptional circumstances.” Gibson, 232 F.3d at 808 (quotations omitted). Petitioner has the burden to “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); see also Sigala, 656 F.3d at 1128.
As previously addressed, Petitioner contends that he was impeded by an inability to obtain his defense file, the state court's denial of all public records and/or all records vital to appellate review, and concealment of the applicable procedural rules. Pet. at 16-20. None of these are extraordinary circumstances that justify equitable tolling. See Kenneth v. Martinez, 771 Fed.Appx. 862, 865 (10th Cir. 2019) (“[T]his court has repeatedly rejected the argument that difficulty in obtaining trial records constitutes ‘extraordinary circumstances' justifying equitable tolling.”); United States v. Titties, No. CIV-19-594-R, 2019 WL 3806632, at *2 (W.D. Okla. Aug. 13, 2019) (finding that “the lack of access to transcripts and other filings does not provide a basis for equitable tolling”); see also Levering v. Dowling, 721 Fed.Appx. 783, 788 (10th Cir. 2018) (“[N]either the difficulty in obtaining trial court transcripts nor [a petitioner's] limited time in the law library are ‘extraordinary circumstances' that would justify the use of equitable tolling.”). Further, Petitioner's alleged confusion regarding procedural rules does not give the Court a reason to apply equitable tolling. See, e.g., Marsh, 223 F.3d at 1220 (“[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” (quotations omitted)); see, cf., Ramirez v. Allbaugh, 771 Fed.Appx. 458, 464-65 (10th Cir. 2019) (holding the district court did not abuse its discretion in determining the petitioner had not acted with the requisite diligence where the state district court struck a defective pleading and, although it delayed in ruling on the petitioner's motion to file an overlength motion, it never led the petitioner to believe that he had done all that was required to “begin” a “review” of his claims). Thus, presuming without deciding that Petitioner diligently pursued his rights, because “he has failed to show any extraordinary circumstance for his failure to comply with [the] AEDPA's one year statute of limitations,” the Court finds Petitioner is not entitled to equitable tolling. Marsh, 223 F.3d at 1220.
VIII. Actual Innocence
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 v. Perkins, 569 U.S. 383, 386 (2013). 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 [] new evidence [presented by the petitioner], no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Petitioner does not set forth new evidence indicating he was innocent of the underlying crimes in this matter. Thus, Petitioner has not presented any basis for bypassing the statute of limitations bar. 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 dismissed without prejudice as untimely. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by February 16th, 2022. The failure to timely object to this 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 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.