Smith, II v. Allbaugh

Filing 16

OPINION AND ORDER by Judge Ronald A. White: Respondent's motion to dismiss time barred petition 10 is GRANTED, this action is, in all respects, DISMISSED, and Petitioner is DENIED a certificate of appealability. Petitioners motion to compel response 15 is DENIED AS MOOT.(acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BOBBY JOE SMITH, II,
Petitioner,
v.
JOE M. ALLBAUGH, DOC Director,
Respondent.

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Case No. CIV 17-443-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 as barred by the statute of limitations (Dkt. 10). Petitioner is a
pro se prisoner in the custody of the Oklahoma Department of Corrections who is
incarcerated at Lawton Correctional Facility in Lawton, Oklahoma. He is attacking his
conviction in Murray County District Court Case No. CF-2009-101 for First Degree Rape
(Count 1), Second Degree Rape (Count 2), and Incest (Count 3), each After Former
Conviction of a Felony.
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) (AEDPA). The following dates are pertinent to the motion to dismiss:
12/11/2012: Petitioner’s Judgment and Sentence was affirmed (Dkt. 11-2).
02/08/2013: Petitioner filed a petition in the state district court, alleging
corruption by the court, prosecutorial misconduct, and sponsorship of
ineffective assistance of trial and appellate counsel (Dkt. 11-3).
02/11/2013: The state district court construed Petitioner’s February 8, 2013,
petition as a request for post-conviction relief and denied it as frivolous and
meritless (Dkt. 11-4).
03/06/2013: Petitioner filed a petition for a writ of mandamus in the
Oklahoma Court of Criminal Appeals, challenging the trial court’s February
11, 2013, denial of post-conviction relief (Dkt. 11-5).

03/11/2013: Petitioner’s conviction became final upon expiration of the 90day period for a certiorari appeal to the United States Supreme Court.
07/12/2013: The Oklahoma Court of Criminal Appeals construed Petitioner’s
petition for a writ of mandamus as an appeal from the district court’s denial of
post-conviction relief and affirmed the district court’s denial. Smith v. State,
No. PC-2013-206 (Okla. Crim. App. July 12, 2013) (Dkt. 11-6).
08/22/2013: The district court issued an order declining to file a letter from
Petitioner, stating that pursuant to Rule 5.5, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch. 18, App., Petitioner could not raise issues that
previously had been raised (Dkt. 11-8).
09/05/2013: The district court issued an order declining to file Petitioner’s
petition “declaring professional misconduct, etc.,” finding that pursuant to
Rule 5.5, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,
App., Petitioner could not raise the issues in a subsequent proceeding in the
district court. The district court also determined the petition was frivolous
(Dkt. 11-9).
09/26/2013: The district court issued an order declining to file pleadings titled
“Petition in Error/Motion for Evidentiary Hearing” and “Petition/Motion for
Supplemental Disposition of Records.” In support of its decision, the district
court relied upon the Oklahoma Court of Criminal Appeals’ July 12, 2013,
Order, which barred future collateral challenges by Petitioner. The district
court found the pleadings were frivolous and sanctioned Petitioner $250.00
(Dkt. 11-10).
10/17/2013: The district court issued an order declining to file Petitioner’s
Notice of Post-Conviction Appeal, finding it was a collateral attempt to appeal
his convictions. In support of its decision, the district court relied upon the
Oklahoma Court of Criminal Appeals’ July 12, 2013, Order, which barred
future collateral challenges by Petitioner (Dkt. 11-11).
10/30/2013: Petitioner filed a “Notice of Intent to Appeal and Petition in
Error” in the Oklahoma Court of Criminal Appeals, challenging the district
court’s September 26, 2013, order (Dkt. 11-12). The notice was transferred to
the Oklahoma Supreme Court which transferred it back to the Court of
Criminal Appeals (Dkt. 11-13).
03/12/2014: Absent statutory tolling, Petitioner’s statutory year expired.
04/10/2014: The Oklahoma Court of Criminal Appeals declined jurisdiction
of Petitioner’s appeal from the denial of post-conviction relief on September
26, 2013, finding the Petition in Error was not timely filed (Dkt. 11-14 at 3).
10/07/2014: Petitioner’s statutory year expired, including the days afforded
to Petitioner for statutory tolling.
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10/07/2014: Petitioner filed an entry of appearance and petition requesting
the district court to send records to the Oklahoma Indigent Defense System for
review.
10/09/2014: The district court denied Petitioner’s request to send records on
the basis that he had exhausted all “appealable rights.”
12/04/2017: 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;
(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’s appeal of his conviction was affirmed by the
Oklahoma Court of Criminal Appeals (OCCA) on December 11, 2012 in Smith v. State, No.
F-2011-700 (Okla. Crim. App. Dec. 11, 2012) (unpublished) (Dkt. 11-2). His conviction,
therefore, became final on March 11, 2013, upon expiration of the 90-day period for a
certiorari appeal to the United States Supreme Court. See Fleming v. Evans, 481 F.3d 1249,
1257-58 (10th Cir. 2007); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (holding

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that a conviction becomes final for habeas purposes when the 90-day period for filing a
petition for a writ of certiorari to the United States Supreme Court has passed). The statutory
year began to run the next day on March 12, 2013, and it expired on March 12, 2014. See
Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011) (stating that the year begins to
run the day after the judgment and sentence becomes final and ends on the anniversary date).
This habeas corpus petition, filed on December 4, 2017, was untimely.
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. State procedural law determines whether an application for state postconviction relief is “properly filed.” Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003).
On February 8, 2013, Petitioner filed a petition setting forth “the same issues of
corruption, bias, [and] cover-up” he raised in prior filings in the district court (Dkts. 11-3,
11-4).1 The district court construed this petition as Petitioner’s third application for postconviction relief and denied relief on February 11, 2013 (Dkt. 11- 4). Because this petition
was filed prior to the statutory year, it had no tolling effect. As discussed below, however,
Petitioner’s appeal of this order tolled the statutory year.
On March 6, 2013, Petitioner filed a Petition for a Writ of Mandamus in the OCCA,
challenging the trial court’s February 11, 2013, order (Dkt. 11-5). This mandamus petition
had no tolling effect until March 12, 2013, the first day of Petitioner’s statutory year. On
July 12, 2013, the OCCA issued an order construing the mandamus petition as an appeal
from the denial of post-conviction relief and affirmed the district court’s denial of relief (Dkt.
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Petitioner filed numerous documents prior to the Oklahoma Court of Criminal Appeals’
decision affirming his convictions and prior to his convictions becoming final (Exhibit 7, pp. 84-89).
Because these documents were filed before the statutory year began, however, they had no tolling
effect. See May v. Workman, 339 F.3d 1236,1237 (10th Cir. 2003) (holding the one-year time
limitation is tolled during the pendency of a state post-conviction application properly filed during
the limitations period (emphasis added)).

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11-6 at 1-2, 5-7). In affirming the district court’s denial of post-conviction relief, the OCCA
found Petitioner had exhausted his state remedies with respect to the issues raised in his
application for post-conviction relief in Murray County Case No. CF-2009-101, and he was
advised that a subsequent application attempting to collaterally appeal his conviction in this
case was barred (Dkt. 11-6 at 7) (citing Rule 5.5, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App.
Petitioner’s statutory year was tolled during the pendency of this “mandamus
petition.” See May, 339 F.3d at 1237. Therefore, the statutory year was tolled from March
12, 2013, the day his conviction became final, until July 12, 2013, for a total of 123 days.
See 28 U.S.C. § 2244(d)(2). See also Maloney v. Poppel, No. 98-6402, 1999 WL 157428,
at *1 n.1 (10th Cir. Mar. 23, 1999) (unpublished) (holding that “tolling calculations should
take into account both the day tolling began and the day tolling ended”).
On August 22, 2013, the state district court issued an order declining to file a letter
sent by Petitioner “consisting of 18 rambling pages of issues previously raised including
death threats to this Judge” (Dkt. 11-8). The court relied on Rule 5.5, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App., to support its finding that Petitioner’s
claims were exhausted and could not be raised in subsequent proceedings in the district court.
Rule 5.5 states:
Once this Court has rendered its decision on a post-conviction appeal, that
decision shall constitute a final order and the petitioner’s state remedies will
be deemed exhausted on all issues raised in the petition in error, brief and any
prior appeals. A petition for rehearing is not allowed and these issues may not
be raised in any subsequent proceeding in a court of this State.
The district court also ordered Petitioner to mail $5.21 to the Court Clerk for the
return of his letter and directed the Court Clerk to shred the letter if the money was not
received within 45 days (Dkt. 11-8).

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On September 5, 2013, the district court received Petitioner’s “Petition declaring
professional misconduct, etc.” (Dkt. 11-9). Again relying on Rule 5.5, the district court
determined the allegations “are not new have been made previously and may not be raised
in this court.” The court further found the allegations were frivolous. The Court Clerk was
directed to shred the petition if Petitioner did not send the court $5.21 for return postage.
On September 26, 2013, the district court received from Petitioner pleadings styled
“Petition in Error/Motion for Evidentiary Hearing” and “Petition/Motion for Supplemental
Disposition of Records” (Dkt. 11-10). Relying on the OCCA’s order from July 12, 2013, the
district court found the pleadings “are not allowed to be filed” Id. The court found the
pleadings were frivolous and sanctioned Petitioner $250.00. Id. The Court Clerk was
ordered to shred the pleadings within thirty (30) days if money was not received from
Petitioner for postage. Id.
On October 17, 2013, the district court rejected Petitioner’s “Notice of PostConviction Appeal,” finding Petitioner had exhausted his state remedies (Dkt. 11-11). The
Court Clerk was ordered to return the pleading upon receipt of money for postage from
Petitioner or shred it if the money was not received within 45 days. Id.
Despite the fact that each of these “pleadings” was rejected by the district court, the
court did not make a finding that the pleadings were not “properly filed.” Instead, the court
determined the claims were exhausted, frivolous, and barred from presentation to the court.
(Dkts. 11-8, 11-9, 11-10, 11-11). The Tenth Circuit has declined to find a state postconviction petition is “not properly filed if it is ultimately determined to be procedurally
barred or otherwise is determined to be frivolous or without merit.” Habeselassie v. Novak,
209 F.3d 1208, 1212 (10th Cir. 2000). Because the district court rejected Petitioner’s
pleadings on the basis of an affirmative defense and a finding that the pleadings were

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frivolous, Petitioner is entitled to tolling for the 30 days in which he could have appealed
each of the four orders to the OCCA.2 Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000)
(holding “regardless of whether a petitioner actually appeals a denial of a post-conviction
application, the limitations period is tolled during the period in which the petitioner could
have sought an appeal under state law.” (emphasis in original)). Therefore, Petitioner is
entitled to 88 days of tolling for the time between August 22, 2013, the date the first order
was issued, until November 17, 2013, thirty days after the last order was issued.3
Respondent asserts that on October 7, 2014, Petitioner asked the district court to send
the records for his case to the Oklahoma Indigent Defense System for review.4 The request
was denied. As this document “did not call for a judicial reexamination of the judgment
imposing [Petitioner’s] sentence,” it cannot be considered to be a post-conviction application
or a request for other “collateral review.” Woodward v. Cline, 693 F.3d 1289, 1293 (10th
Cir. 2012) (holding “‘collateral review’ of a judgment or claim means judicial reexamination
of a judgment or claim in a proceeding outside of the direct review process” (quoting Wall

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Petitioner appealed the district court’s September 26, 2013 order to the OCCA (Dkt. 1112). The OCCA declined jurisdiction because the appeal was filed after 30 days from entry of the
district court’s decision (Dkt. 11-13, 14) (citing Rule 5.2(C)(2), Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch. 18, App. (Supp. 2008)). Because the OCCA declined jurisdiction
and determined the petition was not properly filed, Petitioner is only entitled to tolling for the 30
days in which he could have appealed this order. He is not entitled to tolling for the entire time the
appeal was pending.
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Although the district court rejected Petitioner’s letter received on August 22, 2013 on the
basis of an affirmative defense, this “letter” did not constitute a pleading within the requirements
of Oklahoma’s Uniform Post-Conviction Procedure Act. See Okla. Stat. tit. 22, § 1081 (“A
proceeding is commenced by the filing of a verified ‘application for post-conviction relief’ with the
clerk of the court imposing judgment if an appeal is not pending.”). Respondent asserts that because
Petitioner’s letter was not a verified application for post-conviction relief and it was not “properly
filed,” Petitioner is not entitled to tolling. Even if Petitioner receives tolling for the thirty (30) days
he could appeal the district court’s denial of relief, however, his petition still is time-barred.
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The exhibits for Petitioner’s request and the district court’s denial are not attached
to the motion to dismiss.
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v. Kholi, 562 U.S. 545, 553 (2011)). Petitioner’s request for the transmission of records did
not toll the AEDPA limitations period, because it did not call for a judicial reexamination of
the judgment.
Adding the total of 211 days of tolling to which Petitioner is entitled to March 12,
2014, his habeas petition had to be filed on or before October 9, 2014. Petitioner filed this
petition on December 4, 2017, more than three years after expiration of the statutory year.
Petitioner does not raise the issue of equitable tolling in the petition. In his response
to Respondent’s motion to dismiss (Dkt. 12), however, he references his other habeas case
in this Court, No. CIV 17-445-RAW-KEW:
See attached Copy of Related Case file Smith II vs. Joseph Allbaugh CIV-17445-RAW-KEW which he asserts “presents sufficient remarks to reject the
Respondents Motion on his inconsistent Presumption of the Petition being
Time Barred, as described therein by the dual case relativity and complexity
that supports the extenuating circumstances by Relative Matters that virtually
update the time So long as it Remains Active in a related case, virtually
“Piggy-Backing” by relevant association. Smith has demonstrated Due
Diligence and while the Respondent failed to observe is error, “New Evidence
is Not Time Barred,” and should be subject for Review and Consideration, his
attempt to dismiss on the Basis of Time Barring is Moot and insufficient.
(Dkt. 12 at 1-2) (emphasis and errors in original).
Petitioner claims in his response and supplemental response (Dkts. 12, 13) that he was
misinformed about how to proceed in his case, and the State and Court repeatedly have
misconstrued his statements. He alleges he has attention deficit disorder and autism, and he
may not have had the understanding expected by the Court. He also complains that the law
library staff have misdirected inmates prejudicially, the staff were not knowledgeable, and
the judge sabotaged his jury trial. In addition, many of his legal files have been lost, and the
Oklahoma Innocence Project has failed to return his original records. He further references
unspecified, new evidence and complains about the judicial and law enforcement systems.
To the extent Petitioner may be requesting equitable tolling, he carries the burden of
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establishing his entitlement to this relief. Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir.
2008). 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.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (citation omitted).
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).
Further, “it 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). Further, there is no evidence in the record to suggest Petitioner is
actually innocent of the charges of which he stands convicted, or that other uncontrollable
circumstances impeded him from timely filing his federal claim. See Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000); McQuiggin v. Perkins, 569 U.S. 383, 393-94 (2013).
The Court further finds Petitioner 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 U.S. 473, 484 (2000). See also 28 U.S.C. §
2253(c). Therefore, Petitioner is denied a certificate of appealability. See Rule 11(a) of the
Rules Governing Section 2254 Cases.

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ACCORDINGLY, Respondent’s motion to dismiss time-barred petition (Dkt. 10) is
GRANTED, this action is, in all respects, DISMISSED, and Petitioner is DENIED a
certificate of appealability. Petitioner’s motion to compel response (Dkt. 15) is DENIED AS
MOOT.
IT IS SO ORDERED this 28th day of September , 2018.

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