Foust v. Jones et al

Filing 12

OPINION AND ORDER by Judge James H Payne ; denying certificate of appealability; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (LSA, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

EUGENE T. FOUST,
Petitioner,
vs.
JUSTIN JONES;
WALTER McNEIL,
Respondents.

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Case No. 10-CV-353-JHP-FHM

OPINION AND ORDER
On June 1, 2010, Petitioner, an inmate presently incarcerated at the Joseph Harp Correctional
Center and appearing pro se, filed a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 2),
a supporting brief (Dkt. # 1), supporting exhibits (Dkt. #s 3and 4), and a motion for leave to proceed
in forma pauperis (Dkt. # 5). By Order filed July 7, 2010 (Dkt. # 7), the Court granted Petitioner’s
motion to proceed in forma pauperis and determined that the petition was subject to dismissal as
barred by the one-year statute of limitations applicable to habeas corpus actions. However, Petitioner
was afforded the opportunity to file a response demonstrating why this matter should not be
dismissed with prejudice as time barred. On September 16, 2010, Petitioner filed his response (Dkt.
# 10). For the reasons discussed below, the Court finds the petition shall be dismissed with
prejudice as time barred.
PROCEDURAL BACKGROUND
Petitioner challenges his conviction of Lewd Molestation entered in Tulsa County District
Court, Case No. CRF-87-3767, on his plea of nolo contendere. See Dkt. # 1. As stated in the prior
Order, see Dkt. # 7, Petitioner has in the past filed at least one other habeas corpus petition in this

District Court challenging the same Tulsa County conviction at issue in this matter. See N.D. Okla.
Case No. 89-CV-611. That petition was dismissed without prejudice based on Petitioner’s failure
to exhaust state remedies.1 Thereafter, on January 18, 2006, Petitioner filed a Rule 60(b) motion for
relief from judgment and an amended petition in Case No. 89-CV-611. By Order filed January 24,
2006, the Court denied the requested relief. See N.D. Okla. Case No. 89-CV-611-TCK, Dkt. # 65.
Petitioner appealed to the Tenth Circuit Court of Appeals. The appellate court denied a certificate
of appealability and dismissed the appeal. See id., Dkt. # 77; Foust v. Champion, 201 Fed. Appx.
639 (10th Cir. Oct. 23, 2006) (unpublished). In addition, the appellate court denied the implied
application to file a successive § 2254 application based on Petitioner’s failure to present a factual
predicate discovered within one year of the filing of his claims in order to satisfy the one-year period
of limitation applicable to successive habeas applications. Id.
ANALYSIS
Petitioner has filed numerous habeas petitions and motions in this Court and is well aware
that the Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted April 24, 1996,
established a one-year limitations period for habeas corpus petitions. Under the AEDPA:
(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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Because Petitioner’s prior petition for writ of habeas corpus was dismissed without
prejudice based on his failure to exhaust state remedies, the filing of this subsequent petition is not
barred by 28 U.S.C. § 2244(b). Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).
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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 actions;
(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). In United States v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997),
overruled on other grounds, United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003), the Tenth
Circuit Court of Appeals held that for prisoners whose convictions became final before April 24,
1996, the one-year statute of limitations did not begin to run until April 24, 1996. In other words,
prisoners whose convictions became final before April 24, 1996, the date of enactment of the
AEDPA, were afforded a one-year grace period within which to file for federal habeas corpus relief.
The Tenth Circuit also ruled that the tolling provision of 28 U.S.C. § 2244(d)(2) applied in § 2254
cases to toll the one-year grace period afforded by Simmonds. Hoggro v. Boone, 150 F.3d 1223
(10th Cir. 1998). Therefore, the one-year grace period would be tolled during time spent pursuing
state applications for post-conviction relief properly filed during the grace period.
Based on application of § 2244(d)(1)(A), this habeas petition was not filed within the oneyear limitations period. Petitioner’s conviction entered in Tulsa County District Court, Case No.
CRF-87-3767, became final long ago. As stated above, in that case, Petitioner was convicted of

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Lewd Molestation, After Conviction of Two Felonies. In his petition, petitioner states that after the
Oklahoma Court of Criminal Appeals (“OCCA”) reversed and remanded his conviction for retrial
on August 11, 1993, he entered a plea of nolo contendere on October 21, 1993. See Dkt. # 2.
Nothing in the record suggests that Petitioner filed a motion to withdraw his plea or otherwise
perfected a certiorari appeal to the OCCA. He does state, however, that he was denied a direct
appeal out of time and that his claims have been exhausted through applications for post-conviction
relief. See id. Based on that record, Petitioner’s conviction in Case No. CRF-87-3767 became final
on or about October 31, 1993, ten days after pronouncement of his Judgment and Sentence. See
Rule 4.2, Rules of the Court of Criminal Appeals (requiring the defendant to file an application to
withdraw plea of guilty within ten (10) days from the date of the pronouncement of the Judgment
and Sentence in order to commence an appeal from any conviction on a plea of guilty or nolo
contendere). As Petitioner’s conviction became final well before April 24, 1996, the date of
enactment of the AEDPA, any habeas petition filed after April 25, 1997, absent a tolling event,
would be untimely. Hurst, 322 F.3d at 1261.
Although the running of the limitations period would be tolled or suspended during the
pendency of any post-conviction or other collateral proceeding with respect to the pertinent
judgment or claim properly filed during the grace period, 28 U.S.C. § 2244(d)(2); Hoggro, 150 F.3d
at 1226, it does not appear that Petitioner sought post-conviction relief during the grace period. The
dates provided by Petitioner, see Dkt. # 2 at 43-57, confirm that his post-conviction applications
were filed either before or after the grace period and do not serve to toll the statute of limitations.
See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). Therefore, this habeas corpus
petition, filed June 1, 2010, appears to be untimely.

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In response to the Court’s Order concerning the statute of limitations, see Dkt. # 10,
Petitioner first argues that because his untimeliness is not clear from the face of the record, the Court
lacked authority to raise the statute of limitations sua sponte. The Court finds that allegation to be
without merit. The untimeliness of Petitioner’s challenge to his 1993 conviction leaps from the
record. In Day v. McDonough, 547 U.S. 198, 210-11 (2006), the Supreme Court determined that
district courts are permitted to consider, sua sponte, the timeliness of a habeas petition as long as
notice and an opportunity to address the limitations issue are provided to the petitioner before the
petition is dismissed. The Court provided Petitioner the opportunity to address the limitations issue.
Therefore, under the facts of this case, the Court is authorized to raise the statute of limitations issue
sue sponte.
Next, Petitioner argues he is entitled to habeas corpus relief because he is actually innocent
of his conviction. Petitioner avers that the victim has recanted the allegations giving rise to the
charge of Lewd Molestation to which he pled nolo contendere. He provides the affidavits of the
victim and his sister-in-law to support his recantation theory. The law is well settled that “[c]laims
of actual innocence based on newly discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional violation occurring in the underlying state
criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). It is not the role of a habeas
corpus court to make an independent determination of a petitioner’s guilt or innocence based on
evidence that has emerged since the trial. “This rule is grounded in the principle that federal habeas
courts sit to ensure that individuals are not imprisoned in violation of the Constitution--not to correct
errors of fact.” Id.; see also Sellers v. Ward, 135 F.3d 1333, 1338 (10th Cir. 1998). In this case,
Petitioner’s “newly discovered evidence,” in the form of affidavits purporting to show his innocence,

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is actually the claim itself, rather than the factual predicate of an independent constitutional claim.
The Court finds that Petitioner is not entitled to habeas corpus relief as the “newly discovered
evidence” does not provide the factual predicate of a separate cognizable claim. See Allen v. Beck,
179 Fed. Appx. 548, 550-51 (10th Cir. 2006) (unpublished)2; Pruett v. Cockrell, 2001 WL 1516735,
*9 (N.D. Tex. Nov. 21, 2001) (unpublished) (citations omitted).
A claim of actual innocence may also serve as a gateway to excuse a time bar. “[A]
sufficiently supported claim of actual innocence creates an exception to procedural barriers for
bringing constitutional claims, regardless of whether the petitioner demonstrated cause for the
failure to bring these claims earlier.” Lopez v. Trani, 628 F.3d 1228, 1230 (10th Cir. 2010). The
Court must determine whether Petitioner has made a showing of actual innocence before concluding
that the claims for federal habeas relief are barred by the statute of limitations. Sellers, 135 F.3d at
1338. To establish actual innocence, a habeas petitioner must demonstrate that “it is more likely than
not that no reasonable [trier of fact] would have convicted him.” Schlup v. Delo, 513 U.S. 298, 32728 (1995); Bousley v. United States, 523 U.S. 614, 623 (1998). “[T]he Schlup standard is demanding
and permits review only in the ‘extraordinary case.’” House v. Bell, 547 U.S. 518, 538 (2006). Thus,
“[i]n the usual case the presumed guilt of a prisoner convicted in state court counsels against federal
review of [untimely] claims.” Id. at 537. “It is important to note in this regard that ‘actual innocence’
means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-24 (citing Sawyer
v. Whitley, 505 U.S. 333, 339 (1992)); see also Doe v. Menefee, 391 F.3d 147, 162 (2nd Cir. 2004)
(“As Schlup makes clear, the issue before [a federal district] court is not legal innocence but factual

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Citation to this and other unpublished opinions is for persuasive value. See 10th Cir. R.
32.1(A).
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innocence.”). “[A] substantial claim that constitutional error has caused the conviction of an
innocent person is extremely rare. . . . To be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at
trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual
innocence are rarely successful.” Schlup, 513 U.S. at 324.
In support of his claim of actual innocence, Petitioner provides the “sworn affidavits” of his
sister-in-law, Barbara J. Spillers Johnson French, and of his daughter, the victim of the criminal act
giving rise to his conviction.3 See Dkt. # 3, Exs. A and B. In her sworn affidavit, the victim states
that her father is innocent of the crime to which he pled nolo contendere almost seventeen (17) years
before filing this habeas corpus petition. See Dkt. # 3, Ex. B. The victim’s sworn affidavit is dated
December 25, 2008. Similarly, Petitioner’s sister-in-law, Ms. French, explains in her sworn affidavit
that it was her ex-husband who molested Petitioner’s daughter. Id., Ex. A. Ms. French’s sworn
affidavit is dated November 11, 2009.4 Id. Upon close inspection of the affidavits, the Court finds
that they do not constitute “new reliable evidence” of Petitioner’s actual innocence. See generally
Herrera, 506 U.S. at 417, 423 (because post-trial affidavits are “obtained without the benefit of

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Neither affidavit supporting the recantation theory is notarized.

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The year on Ms. French’s affidavit has been scratched out and “2009” has been written in.
See Dkt. # 3, Ex. A. The Court notes that Petitioner presented Ms. French’s affidavit to Cleveland
County District Court, as part of the record in Case No. WH-2010-1. The petition in that case was
filed January 7, 2010, and denied on February 26, 2010. Petitioner appealed and, on April 12, 2010,
in Case No. HC-2010-261, the OCCA dismissed the habeas appeal. The affidavit of Ms. French,
as provided by Petitioner in the state habeas case, is identical to the affidavit provided in this habeas
case. Significantly, however, the affidavit filed in the state case is dated November 11, 2008. See
www. oscn.net. The year “2008” was not scratched out and replaced with “2009” as it was on the
affidavit presented by Petitioner in this case.
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cross-examination,” they “are to be treated with a fair degree of skepticism.” (O’Connor, J.,
concurring)); see also Dobbert v. Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dissenting
from denial of certiorari and stating: “Recantation testimony is properly viewed with great
suspicion”); Carriger v. Stewart, 132 F.3d 463, 483 (9th Cir. 1997) (Kozinski, J., dissenting, stating:
“Recanting testimony has long been disfavored as a basis for a claim of innocence” and is viewed,
on review, “with extreme suspicion”); United States v. Leibowitz, 919 F.2d 482, 483 (7th Cir. 1990)
(“Judges view recantation dimly”); United States v. Nixon, 881 F.2d 1305, 1311 (5th Cir. 1989)
(“The recanting of prior testimony by a witness is ordinarily met with extreme skepticism.”).
Significantly, as the Court previously noted, see Dkt. # 7 at 5, and as Petitioner has acknowledged
in his response, see Dkt. # 10 at 3, Petitioner himself wrote the affidavits. Hence, the victim’s
recantation suffers from an inherent credibility problem and the Court declines to accept the affidavit
as “reliable evidence” demonstrating actual innocence. In light of the foregoing, the court concludes
that Petitioner has not established an extraordinary circumstance sufficient to justify equitable
tolling.
To the extent Petitioner asserts that the evidence of the victims’ recantation should serve to
initiate a “new” one-year limitations period under § 2244(d)(1)(D), Petitioner is not entitled to relief.
As stated above, § 2244(d)(1)(D) provides that the one-year limitations period may run from “the
date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Even under 28 U.S.C. §
2244(d)(1)(D), Petitioner’s actual innocence claim based on the affidavits is time barred. All of the
information contained in the sworn affidavits could have been developed long ago at the time of
Petitioner’s criminal proceeding. Although Petitioner maintains his innocence, he pled nolo

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contendere in 1993 and failed to pursue the information contained in the affidavits until 2008. Even
if Petitioner were not in possession of the victim’s affidavit until 2008, he has failed to set forth any
“extraordinary circumstances” which prevented the filing of a timely habeas petition as he clearly
knew the basis for this claim long before he sought habeas corpus relief. See Pacheco v. Artuz, 193
F. Supp. 2d 756, 760 (S.D. N.Y. 2002) (the § 2244(d)(1)(D) time bar runs “from the date a petitioner
is on notice of the facts which would support a claim, not from the date on which the petitioner has
in his possession evidence to support his claim”). Also, more than one (1) passed between when the
sworn affidavits were signed in 2008 and when Petitioner first presented them to the state courts in
2010. Moreover, the Court can only assume that Petitioner, like any other prisoner claiming to be
innocent, would have been highly motivated to act promptly in seeking relief. Yet Petitioner did
nothing to establish his innocence over the many intervening years since 1993. Because Petitioner
has failed to demonstrate his actual innocence, the court finds that the instant petition for writ of
habeas corpus is properly analyzed under 28 U.S.C. § 2244(d)(1)(A), as opposed to § 2244(d)(1)(D).
Petitioner also claims that he is entitled to equitable tolling due to his continuing mental
health issues. Equitable tolling “is only available when an inmate diligently pursues his claims and
demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his
control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Although Petitioner claims to be
mentally incompetent, the record provided by Petitioner does not convince the Court that between
April 24, 1996, and April 24, 1997, he was so incapable of rational thought that he could not take
the steps necessary to file a petition for writ of habeas corpus. See Yang v. Archuleta, 525 F.3d 925,
928 (10th Cir. 2008) (“An inmate bears a strong burden to show specific facts to support his claim
of [entitlement to equitable tolling].” (alteration in original and internal quotation marks omitted));

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McCall v. Wyo. Att’y Gen., 339 Fed. Appx. 848, 850 (10th Cir. 2009) (“mere allegations that [a
defendant] was under the influence of medication [are not] sufficient to demonstrate the
extraordinary circumstances beyond his control necessary for equitable tolling.” (internal quotation
marks omitted)) (unpublished); Wiegand v. Zavares, 320 Fed. Appx. 837, 839 (10th Cir. 2009)
(unpublished) (“Allegations of mental incompetence alone . . . are generally insufficient to warrant
equitable tolling.”). The Court notes again that the record reflecting Petitioner’s frequent filings in
state court and in this Court does not support a finding that he has ever been incapable of rational
thought entitling him to equitable tolling.
In summary, this petition, filed almost seventeen (17) years after Petitioner’s conviction
became final, is time barred. Petitioner is not entitled to equitable tolling. Accordingly, the petition
shall be dismissed with prejudice.

Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right,” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In addition,
when the Court’s ruling is based on procedural grounds, a petitioner must demonstrate that “jurists

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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 the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484. In this case, the Court concludes that a
certificate of appealability should not issue. Nothing suggests that the Court’s procedural ruling
resulting in the dismissal of this action based on the statute of limitations is debatable or incorrect.
The record is devoid of any authority suggesting that the Tenth Circuit Court of Appeals would
resolve the issues in this case differently. A certificate of appealability shall be denied.

ACCORDINGLY, IT IS HEREBY ORDERED that the petition for writ of habeas corpus
(Dkt. # 1) is dismissed with prejudice as barred by the one-year statute of limitations. A certificate
of appealability is denied.

DATED THIS 17th day of May 2012.

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