Polk v. Patton

Filing 12

OPINION AND ORDER by Judge James H Payne ; denying certificate of appealability; granting 9 Motion to Dismiss; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (pll, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DOUGLAS POLK,
Petitioner,
vs.
ROBERT PATTON, Director,
Respondent.

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Case No. 14-CV-403-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. # 9).
Petitioner, a state inmate appearing pro se, did not file a response to the motion to dismiss.
Respondent’s motion is premised on 28 U.S.C. § 2244(d) (imposing a one-year limitations period
on habeas corpus petitions). For the reasons stated below, the motion to dismiss shall be granted
and the petition shall be dismissed with prejudice.
BACKGROUND
Petitioner challenges his convictions entered in Tulsa County District Court, Case No. CF2010-1646. See Dkt. #10-1. The docket sheet for that case reflects that on May 7, 2010, Petitioner
entered blind pleas of guilty to Child Sexual Abuse (Counts 1, 5, 6, and 7), First Degree Rape by
Instrumentation, Victim Under Fourteen Years of Age (Count 2), Kidnaping (Count 3), Lewd
Molestation (Count 4), Domestic Assault and Battery in the Presence of a Minor Child (Count 9),
Violation of a Protective Order (Count 10), Interference with Emergency Telephone Call (Count 11),
and Obstructing an Officer (Count 12). See id. at 6. Petitioner pled no contest to a second count
of Domestic Assault and Battery in the Presence of a Minor Child (Count 8). Id. In addition,
Petitioner admitted he had one prior felony conviction. See Dkt. # 10-2 at 1-2. On June 30, 2010,

the trial judge found Petitioner guilty and sentenced him to life imprisonment on Counts 1, 2, 4, 5,
6, and 7; forty (40) years imprisonment on Count 3; and one year imprisonment in the county jail
on Counts 8 through 12, with Counts 1 through 7 to run consecutively, and Counts 8-12 to run
concurrently with each other and consecutive to Count 7. See Dkt. # 10-1 at 7. On July 9, 2010,
Petitioner filed a timely motion to withdraw his pleas. Id. at 23. On July 29, 2010, the trial judge
held a hearing and, at the conclusion of the hearing, denied the motion to withdraw pleas. Id.
During plea proceedings, Petitioner was represented by attorney J. Brian Rayl.
Represented by attorney Richard Couch, Petitioner perfected a certiorari appeal to the
Oklahoma Court of Criminal Appeals (OCCA). In an unpublished summary opinion, filed August
16, 2011, in Case No. C-2010-765 (Dkt. # 10-2), the OCCA granted in part and denied in part the
petition for writ of certiorari. The OCCA reversed and remanded to the district court with
instructions to dismiss the Judgment and Sentence on Count 4, and affirmed the Judgment and
Sentence with respect to Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12. Id.
More than two (2) years later, on February 6, 2014, Petitioner filed an application for postconviction relief. See Dkt. # 10-1 at 27. The state district court denied the application by order filed
February 21, 2014. Id. Petitioner appealed to the OCCA. By Order filed June 6, 2014, in Case No.
PC-2014-211 (Dkt. # 10-3), the OCCA affirmed the denial of Petitioner’s request for post-conviction
relief.
Petitioner filed his federal petition for writ of habeas corpus on July 15, 2014. (Dkt. # 1).
In his petition, Petitioner raises one (1) ground of error, as follows:
Ground 1:

The trial court lacked subject matter jurisdiction to accept Petitioner’s guilty
plea due to the fact that the D.A. lacked authority to sign the complaint and
information in this case, which in turn deprived Petitioner of due process of
law. Amend. 14.
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Id. Petitioner’s claim is based on his assertion that, because Tim Harris, Tulsa County District
Attorney when Petitioner entered his guilty pleas, was appointed to a “second” public office as an
Assistant U.S. Attorney for the Northern District of Oklahoma, he was disqualified to serve as Tulsa
County District Attorney. See id. at 5-6. Respondent argues that consideration of Petitioner’s claim
is precluded by the one-year statute of limitations provided at 28 U.S.C. § 2244(d). (Dkt. # 10).
ANALYSIS
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).

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Application of § 2244(d)(1)(A) leads to the conclusion that the petition was filed after
expiration of the one-year limitations period. Petitioner’s conviction became final on November 14,
2011, after the OCCA denied certiorari on August 16, 2011, and the 90 day time period for filing
a petition for writ of certiorari in the United States Supreme Court had lapsed. 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 November 15, 2011, and, absent a tolling event, a federal petition for writ of habeas corpus
filed after November 15, 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 July 15, 2014, or
approximately twenty (20) months beyond the deadline. Absent either statutory or equitable tolling,
the petition is time-barred under 28 U.S.C. § 2244(d)(1)(A).
The running of the limitations period is tolled or suspended during the pendency of any postconviction or other collateral proceeding with respect to the pertinent judgment or claim properly
filed during the limitations period. 28 U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226
(10th Cir. 1998). Petitioner did not file his application for post-conviction relief until February 6,
2014 – more than a year after the November 15, 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
Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); Fisher v. Gibson, 262 F.3d 1135, 1142-43
(10th Cir. 2001). As a result, Petitioner’s post-conviction proceeding did not serve to toll the
limitations period.

Therefore, Petitioner’s habeas petition is untimely under 28 U.S.C. §

2244(d)(1)(A).

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Respondent also addresses Petitioner’s claim that, under 28 U.S.C. § 2244(d)(1)(D), the oneyear limitations period did not begin to run until Petitioner claims to have learned the factual
predicate of his claim. See Dkt. # 10 at 3 (citing Dkt. # 1 at 7). In his petition, Petitioner alleges that
he “never knew of these facts surrounding [District Attorney Tim] Harris’ appointment as (2) public
office holder, until just recently in January 2014.” (Dkt. # 1 at 7). However, under § 2244(d)(1)(D),
the statute of limitations begins to run when an inmate could have discovered, using due diligence,
the factual predicate of his claim from public sources. Green v. Johnson, 515 F.3d 290, 305 (4th Cir.
2008); see also Slutzker v. Johnson, 393 F.3d 373, 382 n.9 (3rd Cir. 2004) (“[T]he statute of
limitations starts running from the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence, not the date on which
the factual predicate actually was discovered.” (citations and internal quotation marks omitted));
Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003) (holding that one-year period was triggered
under § 2244(d)(1)(D) on the date the inmate could have discovered the factual predicate “through
public sources”); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (stating that, under §
2244(d)(1)(D), “the time commences when the factual predicate could have been discovered through
the exercise of due diligence, not when it was actually discovered by a given prisoner” (internal
quotation marks omitted)); Pacheco v. Artuz, 193 F. Supp. 2d 756, 760 (S.D.N.Y. 2002) (stating
that, under § 2244(d)(1)(D), the time starts from the date the 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”).
In the brief in support of the motion to dismiss, Respondent provides part of a Tulsa World
news article, published May 19, 2012, reporting on a motion to dismiss filed in a high profile

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criminal case in Tulsa County District Court, State of Oklahoma v. Johnson. See Dkt. # 10-4. The
motion to dismiss filed in Johnson was premised on the identical argument now presented by
Petitioner in this habeas action: that because Tulsa County District Attorney Tim Harris was also
a duly appointed Assistant United States Attorney for the Northern District of Oklahoma, he was
disqualified to serve as district attorney in prosecuting criminal cases in Tulsa County District Court.
Based on publication of the newspaper article, Petitioner could have learned of the factual predicate
of his claim from a public source through the exercise of due diligence as early as May 19, 2012,
or more than eighteen (18) months earlier than he claims to have actually learned of the factual
predicate. In addition, as part of his habeas petition, Petitioner states that:
It is well-known that Tim Harris, in addition to being the District Attorney for
Tulsa County, is also a duly appointed Assistant U.S. Attorney for the U.S.
Attorney’s Office for the Northern District of OK, a position he has served in for an
unknown period of time. (See attached CIVIL DOCKET FOR CASE #:4:07-mc00005-CVE, page (5), entry number (52) dated 06-16-09, just (10) months before the
Information in this instance case was filed on April 20, 2010 in Tulsa County).
(Dkt. # 1 at 5 (emphasis added)). That statement serves as an acknowledgment by Petitioner that
he could have learned of the factual predicate of his claim through the exercise of due diligence at
the time charges were filed against him in Tulsa County District Court, Case No. CF-2010-1646.
Therefore, this habeas petition is clearly untimely under 28 U.S.C. § 2244(d)(1)(D).
The petition, filed July 15, 2014, is time-barred under both § 2244(d)(1)(A) and §
2244(d)(1)(D) unless Petitioner is entitled to equitable tolling. 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
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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)). Petitioner does not assert
entitlement to equitable tolling. The record does not suggest that Petitioner pursued his claims
diligently; nor has he met the burden of pleading “rare and exceptional circumstances” sufficient to
warrant equitable tolling. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Lastly, Petitioner does not claim to be actually innocent of the crimes for which he was
convicted. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013); Lopez v. Trani, 628 F.3d 1228,
1231 (10th Cir. 2010) (“Where . . . a petitioner argues that he is entitled to equitable tolling because
he is actually innocent, . . . the petitioner need make no showing of cause for the delay.”); Laurson
v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (“A claim of actual innocence may toll the AEDPA
statute of limitations.”). In this case, Petitioner pled guilty to the charges filed in Case No. CF-20101646, and never presented a claim of actual innocence to the state courts. Therefore, Petitioner
cannot overcome the limitations bar through a claim of actual innocence.
The petition for writ of habeas corpus is clearly time barred. Respondent’s motion to dismiss
shall be granted and the petition shall be dismissed with prejudice.

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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, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893, and n.4
(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 ruling resulting in the dismissal of the petition as time barred
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:
1.

Respondent’s motion to dismiss petition for writ of habeas corpus as time barred by the
statute of limitations (Dkt. # 9) is granted.

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2.

The petition for writ of habeas corpus (Dkt. # 1) is dismissed with prejudice.

3.

A certificate of appealability is denied.

4.

A separate Judgment shall be entered in this matter.

DATED this 12th day of June, 2015.

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