Hodges v. McCollum

Filing 18

OPINION AND ORDER by Judge Ronald A. White : Granting 7 Motion to Dismiss. ; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
GUYNN A. HODGES,
Petitioner,
v.
TRACY McCOLLUM, Warden,
Respondent.

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Case No. CIV 14-270-RAW-KEW

OPINION AND ORDER
This matter is before the court on the respondent’s motion to dismiss petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, an inmate
currently incarcerated at Oklahoma State Reformatory in Granite, Oklahoma, challenges his
conviction and sentence in Okfuskee County District Court Case No. 2008-099 for First
Degree Arson, After Conviction of Two or More Felonies.
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). The following dates are pertinent to the motion to dismiss:
07/29/2010

Petitioner’s direct appeal was affirmed in Case No. F-2009-905.

10/27/2010

Petitioner’s conviction became final upon expiration of the
ninety-day period for a certiorari appeal to the United States
Supreme Court.

10/28/2010

Petitioner’s statutory year began to run the day after his
conviction became final.

09/19/2011

Petitioner filed an application for post-conviction relief and an
application for order nunc pro tunc in the Okfuskee County
District Court.

10/28/2011

Petitioner’s statutory year expired.

03/08/2012

The state district court denied petitioner’s application for an
order nunc pro tunc.

03/22/2012

Petitioner filed an appeal of the denial of his request for an order
nunc pro tunc in the Oklahoma Supreme Court.

04/16/2012

The Oklahoma Supreme Court transferred the appeal to the
Oklahoma Court of Criminal Appeals (OCCA) in Case No.
110,508.

09/04/2012

The OCCA interpreted the appeal of the denial of an order nunc
pro tunc as a request for a writ of mandamus and denied the
request in Case No. MA-12-344.

10/19/2012

Petitioner filed a second application for post-conviction relief in
the state district court.

07/15/2013

The district court held a hearing and denied petitioner’s first and
second post-conviction applications.

08/08/2013

Petitioner filed a petition in error which was construed as a
request for a writ of mandamus with the OCCA, seeking
additional findings of fact and conclusions of law from the
district court in Case No. MA-2013-750.

09/05/2013

The OCCA issued an Order Declining Jurisdiction in Case No.
MA-2013-750.

09/19/2013

Petitioner filed an application for post-conviction relief, seeking
an order recommending an out-of-time appeal.

01/27/2014

The district court entered a Journal Entry of Judgment denying
petitioner’s applications for post-conviction relief and other
motions.

02/24/2013

Petitioner appealed the Journal Entry of Judgment denying postconviction relief to the OCCA in Case No. PC-2014-164.

04/30/2014

The OCCA affirmed the denial of post-conviction relief in Case
No. PC-2014-164.

07/07/2014

Petitioner filed this petition for a writ of habeas corpus.

Section 2244(d) provides that:
(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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(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).
Petitioner’s conviction became final on October 27, 2010, ninety days after the
Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction on direct appeal. See
Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir. 2007); Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. Jan. 31, 2001) (holding that a conviction becomes final for habeas purposes
when the ninety-day period for filing a petition for a writ of certiorari to the United States
Supreme Court has expired). His one-year statutory period for seeking habeas relief
commenced the next day on October 28, 2010. Therefore, his deadline for filing a federal
petition for a writ of habeas corpus was October 28, 2011. See 28 U.S.C. § 2244(d)(1)(A).
Pursuant to 28 U.S.C. § 2244(d)(2), the statute of limitations is tolled while a
properly-filed application for post-conviction relief or other collateral review of the judgment
at issue is pending.

Petitioner filed an application for post-conviction relief and an

application for order nunc pro tunc on September 19, 2011, 39 days before his deadline. His
request for order nunc pro tunc was denied on March 8, 2012, while his post-conviction
application lingered in the district court. While the first application for post-conviction relief
was pending, petitioner filed a second post-conviction action on October 19, 2012. On July
15, 2013, the district court held a hearing and denied both post-conviction applications by
minute orders.

Petitioner sought mandamus relief from the OCCA, requesting more
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thorough orders from the district court, but the OCCA declined jurisdiction on September 5,
2013, finding that petitioner had not properly served notice in Case No. MA-2013-750.
Petitioner apparently believed he had missed the deadline to file an appeal of the
denial of post-conviction relief, so on September 19, 2013, he filed an application for postconviction relief, seeking an order recommending an appeal out-of-time.

While this

application was pending, on January 27, 2014, the district court entered a Journal Entry of
Judgment denying various pending post-conviction motions, including petitioner’s first and
second applications for post-conviction relief. Petitioner then sought to appeal the Judgment
with the OCCA, raising only the issues in his second application for post-conviction relief.
The OCCA accepted this appeal as timely and entered an order affirming the denial of postconviction relief in Case No. PC-2014-164.
The respondent alleges that assuming both petitioner’s first and second applications
for post-conviction relief were denied on January 27, 2014, this petition is untimely.
Petitioner first sought post-conviction relief with 39 days remaining in his statutory year.
The OCCA affirmed the district court’s post-conviction denial on April 30, 2014. Adding
39 days to April 30, 2014, petitioner’s habeas petition was due by Monday, June 9, 2014.
The petition, however, was filed on July 7, 2014, 28 days late.
Equitable tolling of § 2244(d)(1)’s one-year statute of limitations is available, but only
in “rare and exceptional circumstances,” including actual innocence and extraordinary or
uncontrollable circumstances which prevented timely filing. Burger v. Scott, 317 F.3d 1133,
1141 (10th Cir. 2003). “Generally, equitable tolling requires a litigant to establish two
elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.’” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)
(quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)) (footnote omitted). Here, the court
finds petitioner has not shown he is entitled to equitable tolling.

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ACCORDINGLY, the respondent’s motion to dismiss (Dkt. 7) is GRANTED, and
this action is, in all respects, DISMISSED.
IT IS SO ORDERED this 17th day of March 2015.

Dated this 17th day of March, 2015.
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