Mitzner v. Warden

Filing 22

OPINION AND ORDER by Judge James H Payne ; denying certificate of appealability; denying 1 Petition for Writ of Habeas Corpus (2241/2254); granting in part and denying in part 16 Motion to Dismiss (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MORGAN LEE MITZNER,
Petitioner,
vs.
JANET DOWLING, Warden,
Respondent.

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Case No. 13-CV-732-JHP-PJC

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Before the Court is Respondent’s motion
to dismiss petition for habeas corpus as time barred by the statute of limitations (Dkt. # 16).
Petitioner, a state inmate appearing pro se, filed two responses (Dkt. ## 19, 21) to the motion to
dismiss. For the reasons discussed below, the Court finds that, as to Grounds 1-13 and 15-17, the
petition was not timely filed. Therefore, Respondent’s motion to dismiss shall be granted as to those
grounds for relief and they shall be dismissed with prejudice. Respondent’s motion to dismiss shall
be denied as to Grounds 14, 18, and 19. However, those grounds for relief are not cognizable on
habeas corpus review and are denied on that basis.
BACKGROUND
On September 3, 2009, in Delaware County District Court, Case Nos. CF-2009-252C and
CF-2009-253B, Petitioner Morgan Lee Mitzner entered blind pleas of guilty to one (1) count of
Second Degree Burglary in each case. See Dkt. # 17-3 at 1. In Case No. CF-2009-253B, the State
filed a second page alleging three prior felony convictions. Id. On November 23, 2009, the state
district judge sentenced Petitioner to four (4) years imprisonment in Case No. CF-2009-252C, and
to thirty (30) years imprisonment in Case No. CF-2009-253B, with the sentences to be served
consecutively. See Dkt. # 17-8 at 56-57. By letter dated November 28, 2009, Petitioner moved to

withdraw his guilty pleas. See Dkt. # 17-3 at 1. Court appointed counsel, James Harvey, filed an
application to withdraw guilty pleas on December 11, 2009. Id. A hearing on the requests to
withdraw guilty pleas was held on December 23, 2009. See Dkt. # 17-8. At that hearing, Petitioner
was represented by attorney Kathy Baker. Id. At the conclusion of the hearing, the court denied the
applications to withdraw pleas of guilty. Id. at 22.
On February 22, 2010, Petitioner filed a petition for writ of certiorari in the Oklahoma Court
of Criminal Appeals (OCCA). In an unpublished summary opinion, filed October 13, 2010, in Case
No. C-2010-21, the OCCA denied the petition for writ of certiorari. See Dkt. # 17-1. Petitioner did
not file a petition for writ of certiorari at the United States Supreme Court.
On April 17, 2013, Petitioner filed an application for post-conviction relief. See Dkt. # 17-2.
By amended order filed August 26, 2013, the state district judge denied Petitioner’s request for postconviction relief. See Dkt. # 17-3. Petitioner filed a post-conviction appeal at the OCCA. See Dkt.
# 17-4. By order filed September 11, 2013, in Case No. PC-2013-0595 (Dkt. # 17-5), the OCCA
affirmed the denial of post-conviction relief.
Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1) on October 22, 2013,
in the United States District Court for the Western District of Oklahoma. On November 7, 2013,
the case was transferred to this District Court. See Dkt. # 9. In his petition, Petitioner identifies
nineteen (19) grounds of error. See Dkt. # 1. Respondent argues that consideration of this habeas
corpus petition is precluded by the one-year statute of limitations provided at 28 U.S.C. § 2244(d).
See Dkt. ## 16, 17.

ANALYSIS

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A. Grounds 1-13 and 15-17 shall be dismissed with prejudice as time barred
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted April 24, 1996,
established a one-year limitations period for habeas corpus petitions as follows:
(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 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 general, the limitations period begins to run from the date on which a
prisoner’s conviction becomes final, but may also begin to run under the terms of § 2244(d)(1)(B),
(C), and (D). Also, the limitations period is tolled or suspended during the pendency of a state
application for post-conviction relief properly filed during the limitations period. § 2244(d)(2).
With the exception of Grounds 14, 18, and 19, discussed in Part B below, Petitioner’s claims
challenge the validity of his convictions and sentences, entered by the state district court on
November 23, 2009. The one-year limitations period applicable to those claims began to run, under
28 U.S.C. § 2244(d)(1)(A), when his convictions became final. Petitioner’s convictions became
final on January 11, 2011, after the OCCA denied certiorari on October 13, 2010, and the 90 day
time period for filing a petition for writ of certiorari in the United States Supreme Court had lapsed.
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See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). As a result, Petitioner’s one-year
limitations clock began to run on January 12, 2011, and, absent a tolling event, a federal petition for
writ of habeas corpus filed after January 12, 2012, would be untimely. See United States v. Hurst,
322 F.3d 1256 (10th Cir. 2003) (applying Fed. R. Civ. P. 6(a) to calculate AEDPA deadline); Harris
v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011). Petitioner commenced this action on October
22, 2013, or more than twenty-one (21) months beyond the deadline. Absent either statutory or
equitable tolling, the petition is time-barred.
Petitioner did not file his application for post-conviction relief until after the one-year
limitations period had expired. Petitioner’s application for post-conviction relief was not filed until
April 17, 2013, or more than fifteen (15) months after the January 11, 2012, deadline. A collateral
petition filed in state court after the limitations period has expired no longer serves to toll the statute
of limitations. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). As a result, the postconviction proceeding commenced by Petitioner after expiration of the limitations period did not
toll the limitations period.
In his response to the motion to dismiss (Dkt. # 19), Petitioner argues that his petition should
not be time barred because he suffers from “mental impairments,” he did not know that he could file
for habeas corpus relief, and he was abandoned by his court-appointed counsel. He also claims that
he is “actually innocent” of the crimes to which he pled guilty because “he had no intent to commit
the crime.” Id. Petitioner also filed a second response (Dkt. # 21) to the motion to dismiss and
provides a “Comprehensive Assessment,” dated June 2, 2008, prepared at Grand Lake Mental
Health Center, Inc., in support of his claim of “mental impairment.”

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The statute of limitations contained in § 2244(d) is not jurisdictional and may be subject to
equitable tolling. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); see also Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000). However, to be eligible for equitable tolling, a
petitioner must make a two-pronged demonstration: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way,” Yang v. Archuleta, 525
F.3d 925, 928 (10th Cir.2008) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)), so as to
prevent him from timely filing his habeas petition. A petitioner’s burden in making this
demonstration is a heavy one: a court will apply equitable tolling only if a petitioner is able to
“‘show specific facts to support his claim of extraordinary circumstances and due diligence.’” Id.
(quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).
Nothing in the record before the Court suggests that Petitioner is entitled to equitable tolling.
First, Petitioner’s allegation of “mental impairment” lacks sufficient specificity to justify equitable
tolling. Equitable tolling based on mental incapacity may warranted but only in “exceptional
circumstances.” Reupert v. Workman, 45 F. App’x 852, 854 (10th Cir. 2002) (unpublished)1 (citing
Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996)). Such exceptional
circumstances include an adjudication of incompetence, institutionalization for mental incapacity,
or where it is shown that mental incapacity renders the individual incapable of pursuing his own
claim. Id. If a litigant is capable of pursuing legal remedies during the relevant time period,
equitable tolling based upon mental incapacity is not appropriate. Biester, 77 F.3d at 1268.

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This unpublished opinion is not precedential but is cited for its persuasive value. See Fed.
R. App. P. 32.1; 10th Cir. R. 32.1.
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Petitioner in this case has not shown that he has been adjudicated incompetent or that he was
incapable of pursuing his federal claims during the relevant time period because of mental
incapacity. He provides nothing suggesting that between January 12, 2011, and January 12, 2012,
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 Lawrence, 549 U.S. at 337 (finding habeas petition had “fallen far
short” of showing “mental incapacity” to support equitable tolling); Alexander v. Cockrell, 294 F.3d
626, 629 (5th Cir. 2002) (habeas petitioner has burden of proof concerning equitable tolling and
must demonstrate rare and exceptional circumstances warranting application of doctrine).
Petitioner’s “Comprehensive Assessment” reflects that, when the report was prepared, Petitioner
suffered from “major depressive disorder, recurrent, severe w/o psychosis” and “generalized anxiety
disorder.” See Dkt. # 21 at 5. However, the report is dated June 2, 2008, or more than two (2) years
before the limitations period began to run. In addition, the Court has reviewed the transcripts from
Petitioner’s change of plea hearing, his sentencing hearing, and the hearing on his motion to
withdraw his pleas of guilty. See Dkt. # 17-8. Those records reflect that, while it is clear that
Petitioner admittedly suffered from drug addiction, he did not complain of suffering any “mental
impairments” at the time of those hearings. The Court concludes that Petitioner has failed to
demonstrate that he suffered “mental impairment” during the one-year limitations period and he is
not entitled to equitable tolling on that basis.
Petitioner’s additional asserted reasons for the delay, including his lack of awareness of the
federal habeas remedy and the one year limitations period applicable to habeas petitions, also fail

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to justify equitable tolling.2 See Gibson, 232 F.3d at 808 (holding petitioner’s alleged ignorance of
AEDPA’s statute of limitations is not sufficient to warrant equitable tolling). Significantly,
“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) (quotation omitted). In the absence
of specific factual allegations, Petitioner’s conclusory claim that his “court appointed lawyer
dumped him, abandoned him, deserted him,” see Dkt. # 16 at 3, does not entitle Petitioner to
equitable tolling. See Yang, 525 F.3d at 928. Furthermore, Petitioner’s court-appointed counsel
perfected a certiorari appeal on his behalf. Because Petitioner did not have a right to have an
attorney assist him in the preparation and filing of either his state post-conviction petition, see
Cummings v. Sirmons, 506 F.3d 1211, 1223 (10th Cir.2007) (“[A] criminal defendant is not
constitutionally entitled to representation by counsel in state post-conviction proceedings.”), or his
§ 2254 petition, see Swazo v. Wyo. Dep’t of Corr., 23 F.3d 332, 333 (10th Cir.1994) (“[T]here is
no constitutional right to counsel beyond the appeal of a criminal conviction, and ... generally
appointment of counsel in a § 2254 proceeding is left to the court’s discretion.”), the alleged
inadequacy of the contract attorneys with whom Petitioner has worked since his incarceration is not

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Petitioner also argues that his one-year limitations period did not begin to run under 28
U.S.C. § 2244(d)(1)(B) or § 2244(d)(1)(D), until he learned of the availability of federal habeas
corpus and AEDPA’s one-year limitations period. See Dkt. # 19 at 6. However, Petitioner fails to
identify an “impediment to filing an application created by State action in violation of the
Constitution or laws of the United States,” and, as a result, the one-year limitations period is not
extended by § 2244(d)(1)(B). In addition, under § 2244(d)(1)(D), the one-year period may begin
to run on “the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” The factual predicate of Petitioner’s claims in
Grounds 1-13 and 15-17 could have been discovered when he entered his blind pleas of guilty or
when his convictions became final, not when he learned of the existence of the habeas corpus
remedy and the one-year limitations period. As a result, Petitioner cannot benefit from the
application of § 2244(d)(1)(D).
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an “exceptional circumstance” which warrants equitable tolling. Petitioner has not shown that he
“diligently pursue[d] his claims” during the time the limitations period was running, or that his
“failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh, 223
F.3d at 1220.
Lastly, the Court recognizes that Petitioner asserts a claim of “actual innocence.” See Dkt.
# 19 at 3. A claim of actual innocence may overcome the bar resulting from the one-year statute of
limitations. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013); Laurson v. Leyba, 507 F.3d
1230, 1232 (10th Cir. 2007) (“A claim of actual innocence may toll the AEDPA statute of
limitations.”). The Tenth Circuit has “stress [ed] that this actual innocence exception is rare and will
only be applied in the extraordinary case.” Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010)
(internal quotation marks omitted). Petitioner claims that he is innocent because he “had no intent
to commit the crime! He was taken advantage of due to his mental and emotional -- personality
disability.” See Dkt. # 19 at 3. However, the transcript from Petitioner’s change of plea hearing
reflects that Petitioner admitted to acting in concert with his friend “to steal something from the
building,” specifically, an ATM machine, when they broke into the Kahoots Convenience Store in
Afton, Oklahoma, on May 23, 2008, and on January 9, 2009. See Dkt. # 17-8 at 31-32. Petitioner’s
claim of actual innocence based on lack of intent, as asserted in this habeas action, is a claim of legal
innocence as opposed to factual innocence and, thus, does not provide a basis for equitable tolling.
See United States v. Gabaldon, 522 F.3d 1121, 1124 n.2 (10th Cir. 2008) (noting that “[a]ctual
(factual) innocence is a ground for applying equitable tolling,” but that “legal innocence” is not);
Laurson, 507 F.3d at 1232-33 (noting that actual innocence means factual innocence); Beavers v.

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Saffle, 216 F.3d 918, 923 (10th Cir.2000) (noting that legal defenses relate to legal, not factual
innocence).
In summary, Petitioner has not met his burden of pleading “rare and exceptional
circumstances” sufficient to warrant equitable tolling. Gibson, 232 F.3d at 808. Therefore,
Petitioner is not entitled to equitable tolling and Grounds 1-13 and 15-17 of his petition for writ of
habeas corpus shall be dismissed as untimely.
B. Habeas corpus relief on Grounds 14, 18, and 19 is denied
In Grounds 14, 18, and 19, Petitioner challenges post-conviction procedural rulings made
by the state courts. Specifically, Petitioner complains that he was improperly “denied postconviction testing, examinations, evaluations, investigations to prove and substantiate my mental
and personality disorders” (Ground 14); that he was improperly denied a post-conviction hearing,
discovery, and appointment of counsel (Ground 18); and that his post-conviction claims were
improperly denied as procedurally barred (Ground 19). Under 28 U.S.C. § 2244(d)(1)(D), the
factual basis for those claims could not have been discovered until September 11, 2013, when the
OCCA affirmed the denial of post-conviction relief. Petitioner filed his habeas petition on October
22, 2013. Therefore, the claims challenging the state courts’ post-conviction rulings are not time
barred. However, to the extent the issues raised by Petitioner in grounds 14, 18, and 19 focus only
on the State’s post-conviction remedy and not the judgment which provides the basis for his
incarceration, those grounds state no cognizable federal habeas claim. Sellers v. Ward, 135 F.3d
1333, 1339 (10th Cir. 1998). For that reason, Petitioner’s request for habeas corpus relief on
Grounds 14, 18, and 19 shall be denied.

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CONCLUSION
The Court concludes that Grounds 1-13 and 15-17 of the petition are untimely. Respondent’s
motion to dismiss petition for habeas corpus as time barred by the statute of limitations shall be
granted as to those grounds for relief. Grounds 14, 18 and 19 are not cognizable in this habeas
corpus action and shall be denied.
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
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 rulings resulting in the dismissal of Grounds 1-13 and 15-17
based on the statute of limitations, and the denial of Grounds 14, 18, and 19 as not cognizable on
habeas corpus review, are debatable or incorrect. The record is devoid of any authority suggesting

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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:
1.

Respondent’s motion to dismiss petition for writ of habeas corpus as time barred by the
statute of limitations (Dkt. # 16) is granted in part and denied in part, as follows:
a.

The motion to dismiss is granted as to Grounds 1-13 and 15-17 of the petition and
those claims are dismissed with prejudice.

b.

The motion to dismiss is denied as to Grounds 14, 18, and 19.

2.

Habeas corpus relief on Grounds 14, 18, and 19 is denied.

3.

A separate Judgment shall be entered in this case.

4.

A certificate of appealability is denied.
DATED this 24TH day of June, 2014.

_________________________________
JAMES H. PAYNE
UNITED STATES DISTRICT JUDGE

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