Byford v. Byrd

Filing 13

OPINION AND ORDER by Judge Ronald A. White : Granting 9 respondent's Motion to Dismiss and dismissing 2 petitioner's Petition for Writ of Habeas Corpus (2254). Denying certificate of appealability (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TIMOTHY G. BYFORD,
Petitioner,
v.
JOE M. ALLBAUGH, DOC Director,
Respondent.

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Case No. CIV 17-118-RAW-KEW

OPINION AND ORDER
This action is before the Court on Respondent’s motion to dismiss Petitioner’s petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as barred by the statute of
limitations. Petitioner, a state prisoner in the custody of the Oklahoma Department of
Corrections, is incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma. He is
attacking his conviction in Love County District Court Case Number CF-2006-66A for First
Degree Murder, raising one ground for habeas corpus relief:1
The state court made an unreasonable determination of facts in light of the
evidence, that the petitioner’s plea was voluntary, knowing or intelligent, and
the petitioner would be entitled to judgment as a matter of law.
(Dkt. 2 at 11).
Respondent alleges the petition was filed beyond the one-year statute of limitations
imposed by the Antiterrorism and Effective Death Penalty Act of 1996:

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Petitioner is represented by counsel.

(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;
(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 on September 10, 2007, Petitioner entered a plea of guilty in
Case No. CF-2006-66A. On November 1, 2007, he was sentenced to life imprisonment
without the possibility of parole, and the Judgment and Sentence was entered.2 Because
Petitioner did not seek to timely withdraw his plea or seek a direct appeal to the Oklahoma
Court of Criminal Appeals (“OCCA”), the conviction became final on November 12, 2007,

2

The Court takes judicial notice of the public records of the Oklahoma State Courts Network
at http://www.oscn.net. See Pace v. Addison, No. CIV-14-0750-HE, 2014 WL 5780744, at *1 n.1
(W.D. Okla. Nov. 5, 2014).
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ten days after entry of the Judgment and Sentence.3 See Rule 4.2, Rules of the Court of
Criminal Appeals, Okla. Stat. tit. 22, Ch.18, App.; Okla. Stat. tit. 22, § 1051. Pursuant to 28
U.S.C. § 2244(d)(1), Petitioner’s statutory year began to run on November 13, 2007, and it
expired on November 13, 2008. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir.
2011) (the year begins to run the day after the judgment and sentence becomes final). This
petition was filed on March 29, 2017, more than eight years after the statutory filing deadline.
On August 10, 2015, Petitioner filed an application for post-conviction relief and
appeal out of time, raising the issue of the validity of his plea. The Love County District
Court made the following findings about Petitioner’s plea and sentence in its Court Order
Denying Application for Post-Conviction Relief:
1.

The Trial Court took the Defendant’s guilty plea on September 10,
2007. In that transcript the Court finds the Defendant provided the
following information in summary form:
A.

Defendant agreed he was mentally competent (See Transcript of
Guilty Plea p.3. hereinafter (“Tr. Guilty Plea”);

B.

Defendant acknowledged that the range of punishment for
the charge he faced was life, life without parole, or death.
(Tr. Guilty Plea p. 4);

C.

Defendant acknowledged he knew he had a right to a jury trial,
the right to remain silent, the right to see and hear all witnesses
called against him and to cross-examine them, the right to call
witnesses and hear evidence brought into court at no expense to
him, and that a jury must find his guilt to be by evidence which

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The tenth calendar day fell on November 11, 2007, which was a Sunday. Thus, Petitioner’s
conviction became final on the following business day which was Monday, November 12, 2007. See
Okla. Stat. tit. 12, § 2006(A).
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proves his guilt beyond a reasonable doubt. (See Tr. Guilty Plea
p. 6);
D.

The Defendant acknowledged that if he pled guilty he gave up
those rights. (Tr. Guilty Plea p. 6);

E.

The Defendant acknowledged he had talked with his attorney,
had his advice, and believed his lawyer had effectively assisted
him in his case. (Tr. Guilty Plea p. 7);

F.

The Defendant pled guilty to First Degree, Felony Murder. (Tr.
Guilty Plea p. 7-8).

G.

The Defendant said he pled guilty for the reason he was guilty
and he shot the victim in the back of the head with a ninemillimeter. (Tr. Guilty Plea p. 8).

H.

The Defendant said he was not forced, abused, mistreated,
or promised anything by anyone to have his guilty plea
entered. (Tr. Guilty Plea p. 8);

I.

The Defendant said he pled guilty of his own free will, without
coercion or compulsion of any kind. (Tr. Guilty Plea p. 8);

J.

The Defendant acknowledged an understanding that this was an
85% crime if the Court sentenced the Defendant to Life. (Tr.
Guilty Plea p. 9-10);

K.

The Defendant understood that there was no way to
discharge a Life Without Parole sentence. (Tr. Guilty Plea p.
10);

L.

The Defendant acknowledged his right to appeal his guilty
plea. (Tr. Guilty Plea p. 10-11);

M.

At sentencing on November 1, 2007, the Defendant was advised
of his right to appeal the sentence. The Defendant waived his
ten (10) days and wanted to be transported to the Department of
Corrections immediately. (Tr. Guilty Plea p. 14-15).

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Byford v. State, No. CF-2006-66A, slip op. at 1-3 (Love County Dist. Ct. Nov. 19, 2015)
(emphasis added) (Dkt. 10-3). The district court concluded:
The Court first notes that allegations that the Defendant would possibly get
commutation were first made by the Defendant or his parents approximately
eight (8) years after the Defendant’s plea of guilty. Without consideration of
the affidavits of the Defendant and his parents and those of Judge Scaggs and
the Defendant’s [trial] attorney, Don J. Gutteridge, there remains a very clear
record. As set out in the Findings of Fact, the Defendant was specifically
informed of his possible range of punishment by the District Judge on the
record. Nothing was promised by the Court that the Defendant’s sentence
would possibly be commuted. . . .
Id., slip op. at 4. “[A] determination of a factual issue made by a State court shall be
presumed to be correct, and the applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
In its Order Affirming Denial of Post-Conviction Relief, The OCCA summarized the
district court’s findings and held the district court’s ruling “was supported by the record.”
Byford v. State, No. PC-2015-1105, slip op. at 3-4 (Okla. Crim. App. May 25, 2016) (Dkt.
10-1).
Because Petitioner did not initiate his post-conviction proceedings until the limitation
period had expired, there is no statutory tolling of the statute of limitations under 28 U.S.C.
§ 2244(d)(2). See May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003). Likewise,
Petitioner’s second and third post-conviction applications, filed in 2016 and 2017, cannot

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revive the expired limitation period.4
Petitioner asserts he is entitled to equitable tolling of the statute of limitations “as the
conviction in State Court came because of constructive fraud by the State.” (Dkt. 2 at 8).
He further argues that “trial Counsel working jointly with the State created an impediment
which caused a delay in bringing the claim which pursuant to 28 U.S.C. § 2244(d)(1)(B) as
the Petitioner would be entitled to equitable tolling” [sic]. (Dkt. 2 at 9).
Petitioner claims his guilty plea was not knowingly and voluntarily entered, because
it was based on counsel’s erroneous advice that Petitioner would be eligible for commutation
after 15 years of incarceration. Petitioner did not learn that counsel’s advice was incorrect
until January 2015. He, therefore, alleges the statute of limitations should have started
running from the time he discovered this factual predicate, pursuant to 28 U.S.C. §
2244(d)(1)(D) (Dkt. 2 at 8-9).
After habeas counsel was retained by Petitioner’s family in 2014, counsel began an
investigation and ordered transcripts in May 2014. The transcripts, however, were not
provided until December 2014.
According to Petitioner, “[t]rial counsel engaged in a covert act with the State to
induce his client to enter a guilty plea instead of a trial on false premise of the death penalty
without the benefit of the burden of proof for the State to impose such a sentence.” Before

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Both the second and third post-conviction applications were denied, and Petitioner did not
appeal either denial to the OCCA (Dkt. 10 at 2).
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the plea and sentencing, trial counsel allegedly advised Petitioner that if his behavior in
prison was satisfactory, he would be eligible for commutation after serving 15 years. Habeas
counsel asserts trial counsel admitted in a January 2015 conversation with her to having said
this to Petitioner before his plea. Habeas counsel prepared an affidavit to that effect, but trial
counsel did not sign it. In Petitioner’s first post-conviction proceedings, the State submitted
trial counsel’s affidavit which stated counsel encouraged Petitioner to enter a plea, but
counsel never promised anything to Petitioner to get him to plead guilty. (Dkt. 2 at 11-12;
Dkt. 2-2).
Petitioner and his mother also submitted affidavits, alleging trial counsel misled them
about Petitioner’s options during the plea negotiations, including the possibility of
commutation. The affidavits state the trial judge met privately with Petitioner’s parents and
advised that the State had a strong case. The judge also allegedly recommended that
Petitioner accept the plea offer to avoid the death penalty. (Dkts. 2-3, 2-4).
The trial judge submitted an affidavit for the post-conviction proceedings, denying a
private meeting with Petitioner or his parents. The judge, however, recalled arranging a
room for Petitioner and his parents to meet privately in the courthouse before Petitioner was
taken to jail. This was a common practice to provide a room for a defendant to meet with
counsel or close family members. The judge did speak with Petitioner’s parents in an outer
office of his chambers to tell them they could meet privately with Petitioner, but the plea and
sentencing were not discussed. Furthermore, the judge never told Petitioner, his parents, or

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his counsel that Petitioner would be considered for commutation. He also never commented
on the strength of the State’s case. (Dkt. 2-5).
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, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. at 418 (2005)) (internal quotation marks omitted).
In Lane v. Mullin, No. 12-CV-625-JHP-TLW, 2013 WL 2053651, at *3 (N.D. Okla.
May 14, 2013 (unpublished), the petitioner argued that 28 U.S.C. 2244(d)(1)(D) applied to
his habeas action, because he did not know he had been convicted of a felony until almost
seven years after he entered his plea. The district court noted:
The record provided by Petitioner reflects that, when Petitioner entered his
pleas of guilty, he told the trial judge that he understood that the State had
recommended sentencing him to fifteen (15) years imprisonment for
Manslaughter (Count I), to five (5) years for DUI/Personal Injury (Count IV),
one (1) year for Driving Under Revocation (Count II), and thirty (30) days for
Driving Without Security Verification (Count III), all to be served
concurrently. . . . Thus, the factual predicate of Petitioner’s claim, that he was
charged with a misdemeanor in Count IV but allowed to plead guilty to a
felony, could have been discovered through the exercise of due diligence when
he entered his guilty pleas . . . . While it is possible that Petitioner did not
understand the legal significance of all these facts, the limitations period
begins to run when the petitioner knows of the facts giving rise to the habeas
claim; it is not required that he or she understand the legal significance of
those facts. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000); see also
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001) (“[T]he trigger in §
2244(d)(1)(D) is . . . discovery of the claim’s ‘factual predicate,’ not
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recognition of the facts’ legal significance”). Because Petitioner knew of the
predicate facts . . . when he entered his guilty pleas and was sentenced in open
court, the limitations period began running when his convictions became final,
not when he claims to have learned of the legal significance of the facts . . . .
Id., 2013 WL 2053651 at *3.
After careful review, the Court finds Petitioner has failed to meet his burden of
producing clear and convincing evidence to rebut the presumption of correctness in the
OCCA’s factual findings. See 28 U.S.C. § 2254(e)(1). The Court further finds Petitioner
was aware of the facts supporting his habeas claim when he entered his plea, and he could
have filed a timely petition. Cf. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)
(noting that because the petitioner failed to explain why the documents held by the State were
necessary to pursue his federal claim, he was not entitled to have the statute of limitations run
from the date he received the state records); Heinemann v. Murphy, No. 10-8018, 401 Fed.
App’x 304, 309 (10th Cir. Oct. 12, 2010) (unpublished) (“Courts have unanimously rejected
the proposition that the absence of transcripts automatically triggers statutory tolling under
§2244(d)(1)(B).”) (citations omitted). It was not required that he understand the legal
significance of these facts. See Lane, 2013 WL 2053651, at *3.
In addition, trial counsel’s failure to communicate with habeas counsel or to sign an
affidavit prepared by habeas counsel did not constitute a state-created impediment. Cf.
Bhutto v. Wilson, No. 16-8027, 669 Fed. App’x 501, 502-503 (10th Cir. Oct. 4, 2016)
(unpublished) (finding defense counsel’s failure to turn over notes and other discovery does
not constitute state action). Moreover, the court’s reporter’s delay in transcribing transcripts
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did not create an impediment to Petitioner’s initiating his habeas corpus petition. Because
Petitioner has failed to demonstrate a state-created impediment to the filing of his petition
for writ of habeas corpus, there can be no tolling on this basis. The petition is barred by the
statute of limitations.
Relief Pursuant to Rule (60)(b)(6)
In the alternative, Petitioner seeks relief from a final judgment, presumably the
judgment in his criminal case, pursuant to Fed. R. Civ. P. 60(b)(6). Rule 60(b) allows relief
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.
Fed. R. Civ. P. 60(b).
Petitioner again asserts the judgment in his criminal case was obtained by constructive
fraud, arguing the State’s contract with attorneys through the Oklahoma Indigent Defense
System (“OIDS”) for representation of defendants in small Oklahoma counties violates the

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separation of powers clause of the State and Federal Constitutions. He claims that “any
money paid to the executive branch (OIDS) comes from the Court fund and would manifest
a state-created conflict of interest and constructive denial of counsel rendering counsel
ineffective.” (Dkt. 11 at 2).
Rule 60(b) does not grant federal district courts the authority to alter or amend a final
judgment in a state criminal case.

The Rooker-Feldman doctrine is a jurisdictional

prohibition which is based on 28 U.S.C. § 1257.5 The doctrine applies to both civil and
criminal state-court judgments. See Market v. City of Garden City, No. 16-3293, ___ Fed.
App’x ___, 2017 WL 6388812, at *4 (10th Cir. Dec. 14, 2017) (citing Erlandson v.
Northglenn Mun. Ct., 528 F.3d 785, 788-89 (10th Cir. 2008); Meadows v. Okla. City Mun.
Ct., 247 Fed. App’x 116, 118 (10th Cir. 2007)).
The doctrine holds that federal review of state-court judgments may be obtained only
in the United States Supreme Court, not by collateral litigation in federal district court. See
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983). The doctrine applies to bar “a party losing in state court . .

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28 U.S.C. § 1257(a) reads as follows:

Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of certiorari
where the validity of a treaty or statute of the United States is drawn in question or
where the validity of a statute of any State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or laws of the United States, or where
any title, right, privilege, or immunity is specially set up or claimed under the
Constitution or the treaties or statutes of, or any commission held or authority
exercised under, the United States.
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. from seeking what in substance would be appellate review of the state judgment in a United
States district court, based on the losing party’s claim that the state judgment itself violates
the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994). In other
words, the doctrine applies to “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The Tenth Circuit has clearly stated that
allegations of fraud in the state-court proceeding do not prevent application of the RookerFeldman doctrine to bar those fraud claims. See Tal v. Hogan, 453 F.3d 1244, 1256-57 (10th
Cir. 2006); Bradshaw v. Gatterman, 658 F. App’x 359, 362 (10th Cir. 2016).
“[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact
or duration of his confinement and seeks immediate or speedier release . . . .” Heck v.
Humphrey, 512 U.S. 477 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)).
Therefore, Petitioner’s request for relief pursuant to Fed. R. Civ. P. 60(b) is denied.
Certificate of Appealability
The Court further finds Petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). In addition, he has
not shown “at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether [this] court was correct in its procedural ruling.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000). Therefore, a certificate of appealability cannot be issued.
ACCORDINGLY, Respondent’s motion to dismiss time-barred petition (Dkt. 9) is
GRANTED, and this action is, in all respects, DISMISSED. Furthermore, Petitioner is
DENIED a certificate of appealability.
IT IS SO ORDERED this 19th day of March 2018.

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