Hodges v. McCollum
Filing
23
OPINION AND ORDER by Judge Ronald A. White : Denying 20 Motion to Reconsider (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
GUYNN A. HODGES,
Petitioner,
v.
TRACY McCOLLUM, Warden,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. CIV 14-270-RAW-KEW
OPINION AND ORDER
On March 17, 2015, Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 was dismissed as barred by the statute of limitations, pursuant to 28 U.S.C.
§ 2244(d). (Dkt. 18). He subsequently filed a Petition for Rehearing, which the court
construed as a motion for reconsideration. (Dkt. 20).
Petitioner alleges the court incorrectly applied statutory tolling, equitable tolling, or
“gap” tolling in deciding his habeas petition. He specifically claims he was denied tolling
of the statute of limitations, because the state district court refused to prepare a certified copy
of the order denying post-conviction relief, with findings and conclusions, which would have
allowed him to appeal to the Oklahoma Court of Criminal Appeals (OCCA). (Dkt. 20 at 3).
He maintains he “would have been in Federal Court a lot sooner had the State Court not
arbitrarily impeded his post-conviction appeal.” Id.
The court has carefully reviewed the record and construes Petitioner’s pleadings
liberally. Haines v. Kerner, 404 U.S. 519 (1972). He has failed, however, to set forth in his
motion specific dates and case numbers of the court documents he is discussing. Without
specific references, “we will not search the record in an effort to determine whether there
exists dormant evidence” supporting Petitioner’s claims. Roska ex rel. Roska v. Peterson,
328 F.3d 1230, 1246 n.13 (10th Cir. 2003) (citations omitted).
The history of Petitioner’s state court proceedings was discussed in the court’s earlier
Opinion and Order dismissing the action. (Dkt. 18 at 4). Petitioner alleges this court
incorrectly analyzed the statutory tolling of his petition, because he never received an order
he could appeal from his first post-conviction application, pursuant to Rule 5.2(C)(2) of the
Rules of the Oklahoma Court of Criminal Appeals.1 (Dkt. 20 at 7). He has not, however,
pointed out an order from the state courts that addresses the issue of Rule 5.2. Petitioner
further claims he should be entitled to “equitable tolling of the gaps between [his state court]
filings,” because the state district court created the impediment that denied him a postconviction appeal to the OCCA. Id. He claims the OCCA denied jurisdiction on his postconviction appeal, but he has not shown this court where his inability to obtain a certified
copy of the district court’s order was the basis for this ruling. Therefore, the court finds no
merit in Petitioner’s motion.
To the extent the court construes Petitioner’s motion as arising under Fed. R. Civ. P.
60(b), his request for relief also fails:
[T]he court may relieve a party . . . from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
1
Rule 5.2(C)(2) states, in pertinent part, that “[a] petition in error and supporting brief,
WITH A CERTIFIED COPY OF THE ORDER ATTACHED must be filed with the Clerk of this
Court” (emphasis in original).
2
Fed. R. Civ. P. 60(b). The court finds Petitioner has failed to meet his burden under this rule.
ACCORDINGLY, Petitioner’s motion for reconsideration (Dkt. 20) is DENIED.
IT IS SO ORDERED this 29th day of March 2015.
Dated this 29th day of March, 2016.
J4h4i0
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?