Huckaby v. McCollum et al
Filing
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OPINION AND ORDER by Chief Judge Gregory K Frizzell ; dismissing/terminating case (terminates case) ; granting 6 Motion to Dismiss (Documents Terminated: 1 PETITION for Writ of Habeas Corpus - 2241 ) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JAMES HOWARD HUCKABY,
Petitioner,
v.
TRACY McCOLLUM, Warden;
OKLAHOMA DEPARTMENT OF
CORRECTIONS,
Respondents.
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Case No. 15-CV-635-GKF-FHM
OPINION AND ORDER
On November 4, 2015, Petitioner, a state prisoner appearing pro se, filed a 28 U.S.C. § 2241
petition for writ of habeas corpus and a supporting brief with exhibits (Dkt. # 1). Before the Court
is Respondent’s motion to dismiss the petition (Dkt. # 6). Petitioner filed a response (Dkt. # 7) to
the motion to dismiss, along with a supplement to the response (Dkt. # 8). Respondent’s motion is
premised on 28 U.S.C. § 2244(d) (imposing a one-year limitation period on habeas corpus petitions).
For the reasons discussed below, the Court finds Respondent’s motion to dismiss the petition as time
barred shall be granted. Alternatively, the Court finds the petition fails to state a claim. The petition
shall be dismissed with prejudice.
BACKGROUND
Petitioner challenges the administration of his sentences entered in Tulsa County District
Court, Case No. CF-1987-1285. In that case, Petitioner was convicted by a jury of First Degree
Murder (Count 1), Shooting With Intent to Kill (Count 2), and Conspiracy to Commit Murder
(Count 3). (Dkt. # 1 at 60-62). On April 8, 1988, the trial judge sentenced Petitioner, in accordance
with the jury’s recommendation, to life imprisonment on both Counts 1 and 2 and ten (10) years
imprisonment on Count 3, and ordered the sentences to be served consecutively. Id. On direct
appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner’s Judgments and
Sentences. Huckaby v. State, 804 P.2d 447 (Okla. Crim. App. 1990).
On or about April 15, 1988, Petitioner entered the custody of the Oklahoma Department of
Corrections (ODOC) to serve his sentences. See Dkt. # 6-1. On December 17, 2008, Governor Brad
Henry granted parole as to Count 1, effective December 24, 2008. See Dkt. # 1 at 47 (attached
Certificate of Parole, No. 167585, bearing signature of Governor Henry). Pursuant to the Certificate
of Parole, Petitioner was paroled from the life sentence entered on Count 1, to begin serving the
consecutive life sentence entered on Count 2.
Id. Petitioner’s Consolidated Record Card
demonstrates that he rebilled from Count 1 to Count 2, sentence of life imprisonment, on December
24, 2008. Id. at 57, 65; see also Dkt. # 6-3.
Petitioner claims that, in December 2008, his case manager told him he had been paroled
from both life sentences to his consecutive Count 3 sentence of ten (10) years. See, e.g., Dkt. # 1
at 6, 74. He provides a copy of the ODOC Parole Docket Results for the month of September 2008,
demonstrating that the Parole Board recommended “consecutive sentence (05) parole thru CS, CRF
87-1285 CT 2 to CS, CT 3,” id. at 46, and a Certificate of Parole reflecting the possibility of being
paroled to Count 3, see id. at 52. However, that version of the Certificate of Parole was never
executed and does not bear the signature of the Governor of the State of Oklahoma. Id.
Sometime in 2009, Petitioner wrote to Jim Rabon, Administrator of Sentence Administration
and Offender Records for ODOC, seeking clarification of the administration of his sentences. In a
responsive letter, dated September 25, 2009, Mr. Rabon explained to Petitioner that he had “paroled
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CF87-1285, Count 1 on December 24, 2008 and began serving the next consecutive sentence, CF871285, Count 2. Should you parole CF87-1285, Count 2, you would begin serving Count 3, followed
by the [sentence entered in Cleveland County District Court, Case No. CF92-675].” Id. at 79.
Nothing in the record suggests that Petitioner took any further action with regard to the
administration of his sentence until 2011 when he wrote a letter to Governor Mary Fallin inquiring
about early parole or early release. In a letter dated April 4, 2011, the Office of Public Affairs
responded to Petitioner, advising that his request should be directed to the Pardon and Parole Board.
Id. at 58. Then, on August 13, 2013, after more than two (2) more years passed, Petitioner submitted
a Request to Staff, claiming that he “should have been put on CRF-87-1285 Ct 3 on 12-24-08,”
followed by a grievance, and an appeal Administrative Review Authority (ARA) (Dkt. # 6-5). On
September 12, 2013, the Director’s Designee determined that the appeal to the ARA was filed
improperly because the issue “has, in 2009, previously been addressed in writing.” Id. at 7.
Petitioner also wrote a letter to Acting Director Tracy George, Oklahoma Pardon and Parole Board,
claiming that his “jacket,” or his sentence administration file maintained by ODOC, contains the
wrong parole certificate since he was paroled to Count 3, not Count 2. See Dkt. # 1 at 74. In a letter
dated September 11, 2013, Acting Director George explained that Petitioner’s “certificate is correct
as stands.” Id. at 76. During 2014-2015, Petitioner continued to write letters to the Pardon and
Parole Board, Governor Fallin, and other state officials, attempting to correct what he believed to
have been a mistake. Id. at 83, 85, 87, 89, 90.
On April 16, 2014, Petitioner sought a judicial remedy by filing a petition for writ of habeas
corpus in Greer County District Court, Case No. WH-14-16. See Dkt. # 6-6. On June 27, 2014, the
trial court determined that the “Petition fails on the merits” and denied relief, see Dkt. # 1 at 94. On
August 11, 2014, the OCCA found “it would be beneficial for the Attorney General of the State of
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Oklahoma to file a response to the issues raised in Petitioner’s application . . . . Judge Darby, or his
designated representative, shall file a response as well.” Id. at 100-01. On September 17, 2014,
Greer County District Judge Richard B. Darby filed “Trial Court’s Response” (Dkt. # 6-8). Judge
Darby provided a thorough summary of the evidence and set forth multiple reasons, including
untimeliness under the doctrine of laches, supporting his conclusion that “the petition has no merit
and fails.” Id. at 4. Thereafter, on October 1, 2014, in Case No. HC-2014-659, the OCCA declined
jurisdiction and dismissed the habeas corpus matter. (Dkt. # 1 at 98).
Petitioner then filed another petition for writ of habeas corpus in Greer County District
Court, Case No. WH-15-3. See id. at 102. On June 4, 2015, Judge Darby denied the petition,
finding that “Petitioner is barred from arguing the same issues for a second time in this Court.” Id.
at 102-03. Thereafter, the OCCA denied the petition for writ of habeas corpus filed in OCCA Case
No. HC-2015-0577, finding that “Petitioner has not shown that his confinement is unlawful or that
he is entitled to immediate release.” Id. at 104-05.
Petitioner filed the instant federal habeas corpus petition on November 4, 2015 (Dkt. # 1).
He claims that, on December 24, 2008, he was paroled from his consecutive life sentences, entered
on Counts 1 and 2, to his ten (10) year sentence entered on Count 3, but that, due to a “mistake,” he
was rebilled to serve the life sentence on Count 2. Id. Based on that argument, Petitioner requests
that he be released from custody. See id. at 8, 45. As stated above, Respondent filed a motion to
dismiss, arguing that the petition is untimely. See Dkt. # 6 at 4. In the alternative, Respondent
argues that Petitioner simply has not paroled Count 2. Id. at 5.
ANALYSIS
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A. Statute of limitations
The AEDPA, enacted April 24, 1996, established a one-year limitation 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 this case, the limitation period began to run from the date on which the
factual predicate of the claim presented could have been discovered through the exercise of due
diligence. § 2244(d)(1)(D). Also, the limitation period was tolled or suspended during the pendency
of a state application for post-conviction relief or other collateral review properly filed during the
limitation period. § 2244(d)(2).
Application of the provisions of § 2244(d) leads to the conclusion that this habeas petition
was filed after the expiration of the one-year limitation period. Petitioner’s claim arose when the
factual predicate of the claims presented could have been discovered through the exercise of due
diligence. The Court finds that Petitioner learned of his claims, at the latest, when he received Jim
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Rabon’s letter, dated September 25, 2009, stating that Petitioner had “paroled CF87-1285, Count
1 on December 24, 2008 and began serving the next consecutive sentence, CF87-1285, Count 2.
Should you parole CF87-1285, Count 2, you would begin serving Count 3, followed by the [sentence
entered in Cleveland County District Court, Case No. CF92-675].” (Dkt. # 1 at 79). Thus, even if
Petitioner did not receive Mr. Rabon’s letter until September 30, 2009, then, under § 2244(d)(1)(D),
Petitioner had one (1) year from October 1, 2009, or until October 1, 2010, to file a federal petition
for writ of habeas corpus. Clearly, in the absence of a tolling event, the instant petition, filed
November 25, 2015, more than five (5) years beyond the deadline, is untimely.
As set forth above, the running of the limitations period was tolled or suspended during the
pendency of any post-conviction or other collateral proceeding with respect to the pertinent claim
properly filed during the one-year period. 28 U.S.C. § 2244(d)(2). Petitioner’s efforts to exhaust
administrative and judicial remedies all occurred several years after expiration of the one-year
limitations period. As a result, those efforts do not toll the limitations period. See Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir.
2001).
The one-year limitations period may also be equitably tolled. 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
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specific facts to support his claim of extraordinary circumstances and due diligence.” Id. (internal
quotation omitted).
In response to the motion to dismiss, Petitioner asserts that he first learned of the alleged
error on September 29, 2013, “after [the Pardon and Parole Board] sent an amended certificate to
have Petitioner sign for something other than what the parole board had recommended.” (Dkt. # 7
at 3-4). However, nothing in the record provided by either Petitioner or Respondent contains
correspondence from the Pardon and Parole Board to Petitioner dated September 29, 2013, or near
the end of September 2013.1 Instead, the record reflects that, despite allegedly being told in
December 2008, that he had been paroled from both life sentences to his consecutive Count 3
sentence of ten (10) years, see, e.g., Dkt. # 1 at 74, Jim Rabon clearly and concisely explained to
Petitioner, in September 2009, that on December 24, 2008, he was paroled from Count 1 to Count
2. Id. at 79. Thus, in September 2009, at the latest, Petitioner should have known the factual
predicate of his claims.
Petitioner also filed a supplemental response (Dkt. # 8). In that document, Petitioner alleges
for the first time that he “was recommended to parole to his count 3 sentence of 10 yrs, by the Parole
Board after reading a confession from a Mr. A. E. Medlin, stating he did what the Petitioner is
incarcerate[d] for.” Id. While Petitioner provides no evidentiary support for his claim that someone
1
The Court notes that, by letter dated September 11, 2013, the Acting Executive Director of
the Pardon and Parole Board, Tracy George, informed Petitioner that “[a]fter review of your file and
other information, it has been determined that your [parole] certificate is correct as stands.” (Dkt.
# 1 at 76).
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else committed the crimes for which he was convicted,2 he does provide the affidavit of Debra K.
Hampton, an attorney, who states as follows:
I represented Offender James Huckaby, DOC # 170289, in his effort to obtain a copy
of the Governor’s Report on his December 24, 2008, parole. In this regard, I made
several calls to the Pardon & Parole Board Office, the Governor’s Office, the
Secretary of State’s Office and the Oklahoma Senate. In each attempt, I was told to
talk to another entity or completely ignored. I was never able to obtain this Report.
(Id. at 3). Notably lacking from the affidavit is any date reflecting when the phone calls were made.
In fact, the affidavit does not provide the year of its execution.3 Id. As a result, nothing in the
record supports a finding that Petitioner diligently pursued his claims, Yang, 525 F.3d at 928, and
the Court cannot find that Petitioner is entitled to equitable tolling based on averments in the
supplemental response.
The record before the Court, as provided by Petitioner and Respondent, demonstrates that
Petitioner failed to pursue his habeas claims diligently. In addition, he has failed to show that
extraordinary circumstances stood in his way of filing his petition. Therefore, Petitioner fails to
demonstrate that he is entitled to equitable tolling of the one-year limitations period. The Court
concludes that Respondent’s motion to dismiss should be granted and the petition should be
dismissed with prejudice as time barred.
2
If Petitioner were challenging the validity of his convictions under 28 U.S.C. § 2254 and
claimed to be actually innocent of the crimes of which he was convicted in order to overcome the
applicable statute of limitations bar, see McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013), he
would be required to “present[ ] evidence of innocence so strong that a court cannot have confidence
in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error . . . .” Schlup v. Delo, 513 U.S. 298, 316 (1995); House v. Bell, 547 U.S. 518,
536-37 (2006).
3
The affidavit is dated “this 15th day of December.” (Dkt. # 8 at 3).
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B. Even if petition is not time barred, it fails to state a claim
As discussed above, Petitioner requests immediate release from custody based on his
argument that, but for an error on his parole certificate, he would have been paroled in 2008 to serve
the ten (10) year sentence imposed for Count 3. Each of Petitioner’s five habeas claims is premised
on his allegation that his Fourteenth Amendment right to due process was violated when he was
deprived of “his vested liberty interest” in state parole. See, e.g., Dkt. # 1 at 6. To the extent
Petitioner claims that Governor Henry intended to grant parole from Count 2 to Count 3, he fails to
provide any evidence supporting his claim. The only executed parole certificate in the record
demonstrates that Petitioner paroled from Count 1 to Count 2. Therefore, his sentences are being
properly administered.
Furthermore, Petitioner’s habeas claims fail because, absent a legitimate claim of entitlement
to parole, he has no liberty interest in parole under the Oklahoma parole statutes. See, e.g., Shirley
v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979); Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla.
1999) (“[T]here is no protectable liberty interest in an Oklahoma parole.”); see also Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration of a valid
sentence.”); Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998) (“The Constitution does not
itself afford appellant a liberty interest in a reduced sentence.”). It follows that Petitioner has no
claim for violation of procedural or substantive due process based on his unsupported claim that the
executed parole certificate contains a “scrivener’s error.” Id. (“To make out a due process claim,
appellant must assert the infringement of a protected liberty interest.”); Wildermuth v. Furlong, 147
F.3d 1234, 1239 (10th Cir. 1998) (rejecting a claim for a violation of substantive due process
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because the inmate had no liberty interest in parole); see Dock v. Latimer, 729 F.2d 1287, 1290
(10th Cir. 1984) (noting that although a state may choose to implement a parole system, “it has no
duty to do so”). The Tenth Circuit has emphasized that “there simply is no constitutional guarantee
that all executive decisionmaking must comply with standards that assure error-free determinations.
This is especially true with respect to the . . . administrative decision to grant parole release.” Dock,
729 F.2d at 1290 (citations omitted). Here, Petitioner fails to establish a legitimate claim of
entitlement to parole. As a result, he has no liberty interest in parole and no claim for violation of
procedural or substantive due process.
For the reasons discussed above, even if not time barred, the petition fails to state a claim
and shall be dismissed.
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
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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:
1.
Respondent’s motion to dismiss the petition for writ of habeas corpus as barred by the statute
of limitations (Dkt. # 6) is granted.
2.
The petition for writ of habeas corpus (Dkt. # 1) is dismissed with prejudice.
3.
In the alternative, the petition fails to state claim and, for that reason, is dismissed.
4.
A separate judgment shall be entered in this matter.
5.
A certificate of appealability is denied.
DATED this 5th day of May, 2016.
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