Miller v. Mullin

Filing 24

AMENDED OPINION AND ORDER by Judge Frank H. Seay 10 (acg, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
HARRY WAYNE MILLER, JR.,
Petitioner,
v.
ANITA TRAMMELL, Warden,
Respondent.

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Case No. CIV 10-487-FHS-KEW

AMENDED OPINION AND ORDER1
This action is before the court on the respondent’s motion to dismiss petitioner’s
petition for a writ of habeas corpus as barred by the statute of limitations. Petitioner, an
inmate in the custody of the Oklahoma Department of Corrections who is incarcerated at
Mack Alford Correctional Center in Stringtown, Oklahoma, attacks his conviction and
sentence in Bryan County District Court Case Number CF-2007-87 for Lewd or Indecent
Proposals or Acts to a Child Under 16.
The respondent alleges the petition was filed beyond the one-year statute of
limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996, codified
at 28 U.S.C. § 2244(d):
(1) 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.
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;
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This amended order is entered for the sole purpose of correcting the petitioner’s name in
the caption, pursuant to the Order entered by the Tenth Circuit Court of Appeals in petitioner’s
appeal. See Miller v. Trammel, No. 11-7061 (10th Cir. August 23, 2011) (Docket No. 23).

(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.
(2) 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).
The record shows that petitioner entered a plea of nolo contendere and his Judgment
and Sentence was entered on April 12, 2007. He did not seek to timely withdraw his plea or
seek a direct appeal to the Oklahoma Court of Criminal Appeals, so the conviction became
final on April 22, 2007, ten days after entry of the Judgment and Sentence. See Rule 4.2,
Rules of the Court of Criminal Appeals, Okla. Stat. tit. 22, Ch.18, App.; Okla. Stat. tit. 22,
§ 1051. The deadline for filing this petition, therefore, was April 22, 2008, one year later.
See 28 U.S.C. § 2244(d)(1) (A). Petitioner filed an application for post-conviction relief on
July 26, 2010, which was denied by the district court and affirmed by the Oklahoma Court
of Criminal Appeals. Miller v. State, No. PC-2010-886 (Okla. Crim. App. December 6,
2010).

Because petitioner did not initiate his post-conviction proceedings until the

limitations period had expired, there is no statutory tolling. See May v. Workman, 339 F.3d
1236, 1237 (10th Cir. 2003) (citing 28 U.S.C. § 2244(d)(2)).
Petitioner alleges the one-year statute of limitations should not apply to him, because
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his attorney did not visit him or accept phone calls during the ten-day period for filing a
direct appeal. Petitioner further contends that before he could initiate a post-conviction
application, he had to gain access to a prison law library, learn to type, and determine how
to file the application as a pro se litigant. He claims he should not be expected to have
perfected a direct appeal or a post-conviction application within ten days after entering his
plea.
Equitable tolling of § 2244(d)(1)’s one-year statute of limitations is available “only
in rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003).
A 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, ___ U.S. ___, 130 S.Ct. 2549, 2562 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. at 418 (2005)) (internal quotation marks omitted).
“[I]t is well established that ‘ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.’” Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)), cert. denied,
531 U.S. 1194 (2001). “A claim of insufficient access to relevant law . . . is not enough to
support equitable tolling,” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)). Further, “[t]here is no constitutional
right to an attorney in state post-conviction proceedings.” Coleman Thompson, 501 U.S.
722, 752 (1991). The court finds petitioner has failed to demonstrate he is entitled to
equitable tolling
ACCORDINGLY, respondent’s motion to dismiss time barred petition [Docket #6]
is GRANTED, and this action is, in all respects, DISMISSED.

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DATED this 24th day of August, 2011.

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