Thorn v. Allbaugh

Filing 10

OPINION AND ORDER by Judge Ronald A. White : Granting 8 respondent's Motion to Dismiss and dismissing 1 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
JOSHUA EUGENE THORN,
Petitioner,
v.
JOE M. ALLBAUGH, Warden,
Respondent.

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) Case No. CIV 18-019-RAW-KEW
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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 (Dkt. 8). Petitioner, a pro se prisoner in the custody of the Oklahoma
Department of Corrections who is incarcerated at Lawton Correctional Facility in Lawton,
Oklahoma, attacks his conviction and sentence in Muskogee County District Court Case
No. CF-2014-179 for Felonious Possession of a Firearm, after two or more felony
convictions (Count 3) and Assault and Battery with a Dangerous Weapon, after two or
more felony convictions (Count 4).
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):
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 judgments and sentences were affirmed in Thorn
v. State, No. F-2015-244 (Okla. Crim. App. Aug. 4, 2016) (unpublished) (Dkt. 9-1). His
conviction, therefore, became final on November 2, 2016, 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.
Jan. 31, 2001) (holding that a conviction becomes final for habeas purposes when the 90day 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 November 3, 2016, and it
expired on November 3, 2017. 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 January 12,

2018, 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.

Petitioner, however, did not file a post-conviction

application regarding these convictions. Therefore, his deadline for filing this habeas
action was not extended by statutory tolling. The petition is barred by the statute of
limitations.
Apparently arguing for equitable tolling of the limitation period, Petitioner alleges
in a sworn affidavit that he was transferred between four different facilities until the filing
deadline, beginning shortly after the Court of Criminal Appeals entered its decision (Dkt.
1 at 14, 16). He also was on an STG unit for seven months during this period. He claims
he was unable to access any keycites or the library through no fault of his own.
Consequently, he could not file a habeas petition before the deadline.
Petitioner carries the burden of establishing equitable tolling. Yang v. Archuleta,
525 F.3d 925, 929 (10th Cir. 2008). Equitable tolling of ' 2244(d)(1)=s one-year statute
of limitations is available Aonly in rare and exceptional circumstances.@ York v. Galetka,
314 F.3d 522, 527 (10th Cir. 2003). AMoreover, a petitioner must diligently pursue his
federal habeas claims; 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)). The Court, therefore, finds Petitioner

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is not entitled to equitable tolling.
The Court further finds Petitioner has not shown Aat 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.
ACCORDINGLY, Respondent=s motion to dismiss time barred petition (Dkt. 8) is
GRANTED, this action is, in all respects, DISMISSED, and Petitioner is DENIED a
certificate of appealability.
IT IS SO ORDERED this 11th day of December 2018.

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