Thomas v. Bryant
Filing
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OPINION AND ORDER by Judge John E Dowdell The Motion to Consolidate (Doc. 6) is denied. The Motion to Dismiss Aubrey Thomas' petition for a writ of habeas corpus (Doc. 7) is granted. A certificate of appealability is denied. ; denying certificate of appealability; dismissing/terminating case (terminates case) ; denying 6 Motion to Consolidate Cases; granting 7 Motion to Dismiss (Re: 2 PETITION for Writ of Habeas Corpus - 2254 (paid $5 filing fee; receipt number 1085-1870820) ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
AUBREY STUART THOMAS,
Petitioner,
v.
JASON BRYANT, Warden,
Respondent.
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Case No. 18-CV-58-JED-FHM
OPINION AND ORDER
Before the Court is the Oklahoma Attorney General’s Motion to Dismiss this 28 U.S.C. §
2254 habeas corpus action as untimely (Doc. 7). Aubrey Stuart Thomas, through counsel, filed a
Response, arguing the limitation period is subject to tolling (Doc. 8). Thomas also filed a Motion
to Consolidate this action with his wife’s habeas proceeding (Doc. 6). For the reasons below, the
Court will deny the Motion to Consolidate and dismiss the petition.
I. Background
This case arises from Aubrey Thomas’ convictions for child abuse. According to his adult
biological daughter, Thomas beat his adopted children and failed to intervene when his wife
inflicted more severe abuse. Doc. 2 at 20, 23, 27, and 34. The children testified about similar
conduct. Id. The Oklahoma Department of Human Services (“DHS”) removed the children from
Thomas’ home in late 2011. Doc. 2 at 33. Thomas and his wife were arrested and charged with
child abuse the following year. Doc. 7-2 at 3-4.
On January 21, 2014, a jury convicted Thomas of one count of enabling child abuse and
three counts of child abuse in violation of OKLA. STAT. tit. 21, § 843.5. Doc. 7-2 at 30; see also
Doc. 7-1 at 1. Thomas was sentenced to 40 years imprisonment on each count. Doc. 7-1 at 1.
Thomas timely appealed, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the
convictions on December 8, 2015. Id. About fourteen months later, on February 24, 2017,
Thomas filed an application for post-conviction relief in state court. Doc. 7-2 at 39; see also Doc.
7-3 at 3. By an order entered July 27, 2017, the state court denied the application. Doc. 7-3 at 1,
24. Thomas again appealed, and the OCCA affirmed the denial on October 31, 2017. Doc. 7-4 at
1.
Thomas filed the federal § 2254 petition, through counsel, on January 26, 2018 (Doc. 2).
He raises claims for ineffective assistance of counsel, due process violations, prosecutorial
misconduct, and government corruption/conspiracy. Doc. 2 at 2-3. Thomas also moved to
consolidate this action with his wife’s habeas proceeding, case no. 18-CV-59 JED-FHM (Doc. 6).
In response, the Attorney General moved to dismiss the action as time barred (Doc. 7). The
Motion to Dismiss does not address consolidation.
II. Consolidation
Consolidation of actions is governed by Fed. R. Civ. P. 42(a). Rule 42(a) provides that
“[i]f actions before the court involve a common question of law or fact, the court may …
consolidate the actions.” The decision whether to consolidate actions is discretionary. See
Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978). Relevant considerations include whether
consolidation would promote convenience, expedition, and economy while affording justice to
the parties. Id.; Servants of the Paraclete v. Great American Insurance Co., 866 F. Supp. 1560,
1572 (D.N.M. 1994).
Thomas and his wife were tried together, and the same attorney filed similar pleadings in
each federal habeas case. Compare 18-CV-58 with 18-CV-59. Nevertheless, the Court finds that
consolidation is not appropriate or necessary. The state habeas proceedings were separate, and
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one of the grounds for relief is that defense counsel should have demanded separate trials based
on the Petitioners’ mutually antagonistic defenses. Doc. 2 at 50; see also exhibits to Doc. 7 filed
in both cases. As discussed below, the action is also over because Thomas’ petition is timebarred. The Court will therefore deny the Motion to Consolidate (Doc. 6).
III. Timeliness of the Habeas Claims
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year
limitation period for habeas corpus petitions. 28 U.S.C. § 2244(d). The limitation period
generally begins to run from the date on which a prisoner’s conviction becomes final. The oneyear limitation period can be extended:
(1)
While a properly filed state habeas petition is pending, § 2244(d)(2);
(2)
Where unconstitutional state action has impeded the filing of a federal habeas
petition, § 2244(d)(1)(B);
(3)
Where a new constitutional right has been recognized by the Supreme Court, §
2244(d)(1)(C); or
(4)
Where the factual basis for the claim could not have been discovered until later, §
2244(d)(1)(D).
Because AEDPA’s one-year limitation period is not jurisdictional, the period may be extended
through equitable tolling, Holland v. Florida, 560 U.S. 631, 645 (2010), or “overcome” through
“a credible showing of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
The record demonstrates Thomas filed his federal petition after the AEDPA deadline.
Because Thomas did not file a petition for certiorari after the OCCA affirmed his conviction on
December 8, 2015, the judgment became final ninety days later, or March 7, 2016. See Fleming
v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007) (absent a further appeal to the U.S. Supreme
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Court, the one-year period begins to run 90 days after the OCCA affirms a conviction); Rhine v.
Boone, 182 F.3d 1153, 1155 (10th Cir. 1999) (explaining that if the defendant fails to seek
certiorari, the conviction becomes final after the 90-day period has passed). On February 24,
2017, with 12 days remaining in the one-year period, Thomas filed his state habeas petition. The
proceedings tolled the limitation period until October 31, 2017, when the OCCA affirmed the
denial of the petition. See Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999) (holding the
one-year period is tolled while a timely-filed state habeas petition is pending in the trial and
appellate court). There was no case activity for the next 12 days, and the deadline ran on
November 13, 2017. Thus, the habeas petition is time barred unless - as Thomas contends equitable tolling, statutory tolling, or the actual innocence exception apply. Doc. 8.
A. Equitable Tolling
To obtain equitable tolling, a petitioner must show they “ha[ve] been pursuing [their]
rights diligently,” and that “some extraordinary circumstance … prevented timely filing” of the
federal habeas petition.
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). This is a “strong burden” that requires the petitioner to
“show specific facts to support his claim of extraordinary circumstances and due diligence.”
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304,
1307 (11th Cir. 2000)). Thomas does not allege he attempted to, or was thwarted from, meeting
the November 13, 2017 deadline. Rather, it appears he misapprehended the federal due date. The
Response argues that the conviction did not become final until July 2017, when the trial court
“expanded the record” by holding oral argument on the state habeas petition. Doc. 8 at 2. This
position is contrary to the express language of § 2244, which provides a conviction becomes final
at “the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). Thomas’ differing view on the
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law “does not excuse prompt filing” under equitable tolling principles. Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000).
B. Statutory Tolling
Alternatively, Thomas argues he could not have discovered the factual predicate of his
claims for government corruption until 2017. Doc. 8 at 5; see also 28 U.S.C. § 2244(d)(1)(D)
(extending the AEDPA deadline until “the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence”). That year
he became aware of two unrelated sex abuse cases that allegedly feature misconduct by DHS. In
State v. Jacob Eric Roberts, Case No. CF-2015-00411, DHS advocated for a prosecution, but the
jury acquitted the defendant. Doc. 8 at 6. In State v. Charles Robert Tatum, Case No. CF-201300214, DHS officials pressured the defendant’s wife, Amie Tatum, to lie and accuse her husband
of child abuse. Id. at 5.1 Thomas alleges DHS official Weatherly made a similar threat to family
friend Rae Nita Grubbs to elicit favorable testimony for the State. Id. Thomas also recently
discovered Weatherly was convicted of embezzlement and breaking and entering. Doc. 8 at 6.
The limitation period in § 2244(d)(1)(D) begins to run when a habeas petitioner could
have discovered “facts relevant to the[] habeas claims.”
Smallwoood v. Martin, 2013 WL
18446841, * 2 (10th Cir. May 3, 2013).2 Section 2244(d)(1)(D) does not trigger a new limitation
period where, as here, the petitioner discovered unrelated state court proceedings that may have
“alerted” them to new legal arguments. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.
2000) (rejecting habeas petitioner’s argument that habeas claim was timely under § 2244(d)(1)(D)
1
The Response refers to an affidavit by Tatum, but the document was not filed of record. The
Court will accept the unsworn excerpts in the Response because doing so does not change the outcome of
this ruling.
2
The Court cites this decision, and other unpublished decisions herein, as persuasive authority. See
FED. R. APP. P. 32.1(a); 10th Cir. R. 32.1(A).
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when petitioner “was clearly aware” of the factual basis for his claim “years before” filing habeas
petition even if later state court decisions may have “alerted” petitioner to new legal basis for
claim).
Further, even if some of the facts are new, there is no indication they tainted Thomas’
criminal proceeding or are otherwise relevant to the habeas claims. The petition reflects that Rae
Nita Grubbs provided favorable testimony for Thomas, notwithstanding any threats by Weatherly.
Grubbs stated she never saw unexplained injuries on the children; they were receiving a proper
education; and they were not afraid to be in Thomas’ home. Doc. 2 at 38. Weatherly, on the
other hand, did not testify at trial, and Thomas has not explained how her alleged misconduct
impacted the jury’s verdict. Doc. 7-3 at 20; see generally Doc. 8. The newly discovered evidence
is therefore insufficient to trigger a later limitation period under § 2244(d)(1)(D).
C. Actual Innocence
Thomas also argues the one-year limitation period should be overcome based on actual
innocence and the fundamental miscarriage of justice. He asserts his petition makes a colorable
showing of factual innocence and that his trial was fundamentally unfair. Doc. 8 at 3-4.
The miscarriage of justice exception is not distinct from actual innocence, nor does it
provide an independent basis for challenging an unfair trial. “To invoke the miscarriage of justice
exception[,] … a petitioner ‘must show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence” demonstrating innocence.
McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). See also Zeigler v. Crosby, 345 F.3d 1300, 1307-08 (11th Cir. 2003) (“To establish a
fundamental miscarriage of justice, a petitioner must show a colorable claim for actual
innocence.”); Taylor v. Neven, 2010 WL 3001633, * 18 (D. Nev. July 27, 2010) (“In the absence
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of a showing of actual innocence, there otherwise is not a separate exception for a ‘miscarriage of
justice’”). The “exception is rare and will only be applied in the extraordinary case.” Lopez v.
Trani, 628 F.3d 1228, 1231 (10th Cir. 2010).
The petitioner must “present[ ] evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial ....” Schlup v.
Delo, 513 U.S. 298, 316 (1995).
Examples of new reliable materials include “exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence … that was not
presented at trial.” Id. at 324.
Neither the Petition nor the Response presents new, reliable evidence of innocence.
While the new facts may demonstrate systematic failures in the Osage County DHS office, they
do not bear on whether Thomas abused his adopted children. See U.S. v. Maravilla, 566 Fed.
App’x 704, 708 (10th Cir. May 9, 2014) (noting that “legal innocence … include[ing] procedural
defects invalidating a conviction” are not sufficient to show actual, factual innocence). The
remainder of Thomas’ arguments simply rehash and attack the evidence at trial. He contends, for
example, that his adopted children lied about the abuse, and his biological daughter was merely
retaliating because Thomas would not “let her have her way with an older married man.” Doc. 2
at 20-21. The jury considered the children’s testimony and determined Thomas was guilty.
Thomas’ actual innocence claim therefore fails, and the Court will dismiss the § 2254 action as
untimely.
IV. Certificate of Appealability
Habeas Corpus Rule 11 requires “[t]he district court [to] … issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A certificate may only issue
“if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Where, as here, the dismissal is based on procedural grounds, the petitioner
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must also show reasonable jurists would find the ruling debatable. See Slack v. McDaniel, 529
U.S. 473, 484 (2000). Because reasonable jurists would not debate that Thomas’ habeas petition
is time barred, the Court denies a certificate of appealability.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
The Motion to Consolidate (Doc. 6) is denied.
2.
The Motion to Dismiss Aubrey Thomas’ petition for a writ of habeas corpus (Doc.
7) is granted.
3.
A certificate of appealability is denied.
4.
A separate Judgment will be entered disposing of the case.
ORDERED this 15th day of May, 2018.
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