Burton v. Martin

Filing 15

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying certificate of appealability; granting 5 Motion to Dismiss; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOHN CHRISTIAN BURTON,
Petitioner,
v.
JIMMY MARTIN, Warden,
Respondent.

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Case No. 18-CV-201-GKF-FHM

OPINION AND ORDER
Petitioner John Christian Burton, a state prisoner appearing pro se, brings this 28
U.S.C. § 2254 habeas corpus action to seek relief from the judgment and sentence entered
against him in the District Court of Tulsa County, Case No. CF-2015-262. Respondent
filed a motion to dismiss the habeas petition as time barred under 28 U.S.C. § 2244(d) (Dkt.
# 5), and a brief in support (Dkt. # 6). Petitioner filed a response to the motion (Dkt. # 9),
and a motion for an evidentiary hearing (Dkt. # 10). By Order filed October 25, 2018 (Dkt.
# 13), the Court denied Petitioner’s request for an evidentiary hearing but directed
Respondent to submit additional documents relevant to the timeliness issue. Respondent
complied with the Court’s order on November 1, 2018. Dkt. # 14. For the reasons
discussed below, the Court grants Respondent’s motion to dismiss the petition, and
dismisses the habeas petition with prejudice as time barred.
BACKGROUND
A Tulsa County jury found Petitioner guilty of second degree robbery, in violation

of OKLA. STAT. tit. 21, § 797 (2011), after former conviction of two or more felonies, and
recommended a 42-year prison sentence. Dkt. # 6-1, at 1. The trial court imposed the
recommended sentence on April 8, 2015. Id.; Dkt. # 1, at 1. Represented by counsel,
Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA),
raising three propositions of error. Dkt. # 6-1, at 1. In an unpublished summary opinion
filed September 23, 2016, in Case No. F-2015-382, the OCCA rejected all three
propositions of error, rejected two additional propositions Petitioner raised in a
supplemental pro se brief, and affirmed Petitioner’s conviction and sentence. Id. at 1-8.
Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.
Dkt. # 1, at 2-3. Petitioner also did not file any applications for post-conviction relief in
state court. Id. at 9.
Petitioner filed the instant habeas petition on April 11, 2018. Id. at 1. He seeks
federal habeas relief on the same five grounds he raised on direct appeal:
Ground One:

Prosecutorial misconduct deprived Petitioner of a fair
trial, V and XIV Amendments to the United States
Constitution.

Ground Two:

The Petitioner was deprived of Sixth Amendment
effective assistance of counsel.

Ground Three:

Cumulative errors deprived [Petitioner] of a fair trial in
violation of the V, and XIV Amendments to the United
States Constitution.

Ground Four:

Defense counsel’s failure to argue the pretrial
photographic and in-court identification process and
procedures were permissively suggestive, V, VI and
XIV Amendments to the United States Constitution.

Ground Five:

Petitioner’s Fifth and Fourteenth Amendment
Protective Clause right was violated when [Petitioner]
was tried by an all white jury.
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Dkt. # 1, at 8-9, 11, 14, 16.
Respondent moves to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)
which imposes a one-year limitation period for a state prisoner to file a § 2254 petition for
writ of habeas corpus. Dkt. ## 5, 6. Respondent contends (1) Petitioner filed his habeas
petition over three months after his one-year limitation period expired, (2) Petitioner is not
entitled to statutory tolling, and (3) Petitioner has not demonstrated any other
circumstances that would permit him to overcome the time bar. Dkt. # 6, at 2-8.1
Petitioner concedes his habeas petition is untimely under § 2244(d). Dkt. # 1, at 1920. But he alleges that “[o]n or about the 28th day of August 2017, [he] placed a copy of
his Habeas Corpus (2254) in the mailing system at the North Fork Correctional Center.”
Id. He further alleges that he filed the instant habeas petition after he learned in March
2018 that this Court never received the August 2017 petition. Id. at 19-20. Based on these
allegations, Petitioner contends his instant petition can be deemed timely through
application of the prison mailbox rule. Id. at 20; Dkt. # 9, at 3-4. In the alternative,
Petitioner contends he is eligible for equitable tolling based on his attempt to file a timely
petition in August 2017—an attempt he claims was unsuccessful for reasons beyond his

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Respondent also contends the habeas petition is subject to being dismissed as a
mixed petition because Petitioner refers in his petition to “two additional unexhausted
substantive claims” and asserts that he will seek a stay of this proceeding so that he can
pursue those claims in state court. Dkt. # 6, at 8-9. Petitioner does state in his petition that
he will request a stay or administrative closure of this proceeding to exhaust two additional
claims. Dkt. # 1, at 20. However, he states that he will do so only after the Court resolves
whether his petition is time barred. Id. In addition, while he identifies the claims he intends
to exhaust, he does not brief them. Id. As a result, the Court finds the petition is not a
mixed petition and declines to dismiss the petition on this basis.
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control. Id. at 19-20; Dkt. # 9, at 4-7, 9-10; Dkt. # 12, at 2-5.
ANALYSIS
A.

The petition is untimely under 28 U.S.C. § 2244(d)(1)(A).
The Antiterrorism and Effective Death Penalty Act (AEDPA), imposes a one-year

limitation period for a state prisoner seeking federal habeas relief. 28 U.S.C. § 2244(d)(1).
Generally, that limitation period commences on “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review.” Id. § 2244(d)(1)(A). The one-year limitation period is statutorily tolled for “[t]he
time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).
However, “[o]nly state petitions for post-conviction relief filed within the one year allowed
by AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th
Cir. 2006).
Here, Petitioner challenged his state judgment by filing a direct appeal with the
OCCA, and the OCCA affirmed the judgment on September 23, 2016. Dkt. # 6-1, at 1.
Because Petitioner did not file a petition for writ of certiorari in the United States Supreme
Court, see Dkt. # 1, at 2-3, his judgment became final on December 22, 2016, when the 90day period for filing a petition for writ of certiorari with the Supreme Court expired. See
Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (noting state judgment becomes final when
“availability of direct appeal to the state courts has been exhausted and the time for filing
a petition for a writ of certiorari has elapsed or a timely filed petition has been finally
denied”). Petitioner’s one-year limitation period commenced the next day, on December
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23, 2016, and expired on December 23, 2017. See United States v. Hurst, 322 F.3d 1256,
1260-61 (10th Cir. 2003) (applying Fed. R. Civ. P. 6(a) to calculate AEDPA one-year
limitation period); Fed. R. Civ. P. 6(a)(1)(A) (providing that day of the event triggering
limitation period is excluded from calculation of that period). Petitioner filed his federal
habeas petition on April 11, 2018, over three months after his one-year limitation period
expired. And, because Petitioner concedes he did not file any applications for postconviction relief in state court, he is not entitled to statutory tolling. See 28 U.S.C. §
2244(d)(2); Clark, 468 F.3d at 714. Thus, unless Petitioner can show that his April 2018
petition can be deemed timely through application of the prison mailbox rule or that he is
entitled to equitable tolling of the one-year period, his petition is time barred.
B.

Petitioner has not shown that he complied with the prison mailbox rule with
respect to mailing a habeas petition in August 2017.
In seeking to overcome the time bar, Petitioner invokes the prison mailbox rule and

alleges he placed a federal habeas petition “in the mailing system at the North Fork
Correctional Center” “[o]n or about” August 28, 2017. Dkt. # 1, at 19; Dkt. # 9, at 3-7. He
further alleges he filed the instant habeas petition upon learning, in March 2018, that this
Court never received his August 2017 petition. Dkt. # 1, at 19-20; Dkt. # 9, at 3.
Respondent contends Petitioner cannot benefit from the prison mailbox rule because
the North Fork Correctional Center (NFCC) has a legal mail system and Petitioner failed
to prove that he used that system to mail a federal habeas petition to this Court in August
2017. Dkt. # 6, at 3-6; Dkt. # 11, at 2-6.
Under the prison mailbox rule, a state prisoner’s habeas petition “will be considered
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timely if given to prison officials for mailing prior to the filing deadline, regardless of when
the court itself receives the documents.” Price v. Philpot, 420 F.3d 1158, 1163-64 (10th
Cir. 2005). Significantly, the prison mailbox rule applies even if the court never receives
the documents that the prisoner alleges he submitted to prison officials for mailing. See
Jones v. Heimgartner, 602 F. App’x 705, 708 (10th Cir. 2015) (unpublished)2 (citing cases
from several circuits that “have recognized the factual nature of the inquiry” regarding
compliance with the prison mailbox rule “even given non-receipt” of the relevant
pleading); United States v. McNeill, 523 F. App’x 979, 982 (4th Cir. 2013) (unpublished)
(reasoning that even when court does not receive pleading, factual inquiry regarding
compliance with prison mailbox rule remains focused on whether prisoner “actually”
delivered pleading to prison officials).
To benefit from the prison mailbox rule, a prisoner must “establish the date on which
he or she gave the papers to be filed with the court to a prison official.” Price, 420 F.3d at
1165. The prisoner can make this showing by either
(1) alleging and proving that he or she made timely use of the prison’s legal
mail system if a satisfactory system is available, or (2) if a legal system is not
available, then by timely use of the prison’s regular mail system in
combination with a notarized statement or declaration under penalty of
perjury of the date on which the documents were given to prison authorities
and attesting that postage was prepaid.
Id. at 1166. Nonetheless, if the prisoner is incarcerated in a facility that has a legal mail
system, the prisoner must use that system to benefit from the prison mailbox rule. See id.

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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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(“[A]n inmate seeking to take advantage of the mailbox rule must use the prison’s legal
mail tracking system where one is in place.”); Rule 3(d), Rules Governing Section 2254
Cases in the United States District Courts (“If an institution has a system designed for legal
mail, the inmate must use that system to receive the benefit of [the prison mailbox] rule.”);
see also Hailey v. Ray, 312 F. App’x 113, 115 (10th Cir. 2009) (unpublished) (explaining
that “[a] prison legal mail system . . . is one in which ‘prison authorities log in all legal
mail at the time it is received’” (quoting United States v. Gray, 182 F.3d 762, 765 (10th
Cir. 1999))).
To support their opposing positions as to whether Petitioner complied with the
prison mailbox rule with respect to mailing a habeas petition in August 2017, Petitioner
and Respondent each submitted an affidavit from the NFCC’s law library supervisor, Paula
Bethea. In the first affidavit, submitted by Petitioner, Bethea attested (1) Petitioner
“deposited his § 2254 habeas petition in the Prison’s Institutional Mailbox on August 28th,
2017,” addressed to this Court, and (2) that “[a]fter speaking with [Petitioner] on March
30th, 2018,” Bethea found it was “consistent with [her] records . . . that [Petitioner] mailed
legal documents to [this Court] on August 28th, 2017.” Dkt. # 1, at 23-24. In the second
affidavit, submitted by Respondent, Bethea attested:
...
2.
This affidavit is to clarify my earlier affidavit of April 6, 2018,
regarding any confusion or erroneous impression raised by that affidavit
about whether [Petitioner] properly complied with the prison legal mail
system in August 2017.
3.
NFCC follows Department of Corrections Operating Procedures for
the handling of legal mail. OP-030117.IV.B.2 provides that all outgoing
legal mail will be marked “legal” and entered in a mail log and identified as
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legal.
4.
OP-03117.IV.B.5 requires a staff member to observe the inmate place
outgoing legal mail in an envelope before sealing the envelope.
5.
[Petitioner] did not bring any legal mail to the law library at NFCC on
or around August 28, 2017 to be stamped. As a result, there is nothing in the
outgoing legal mail log for [Petitioner] on or around August 28, 2017.
6.
My previous affidavit of April 6, 2018, was based solely on my
recollection of conversations with [Petitioner] and was not based on any
official record of outgoing legal mail.
Dkt. # 6-2.3
Notably, both affidavits support Respondent’s position that the NFCC had a legal
mail system available in August 2017. The first suggests Petitioner used that system; the
second states he did not. In his response to the motion to dismiss, Petitioner further
muddied the waters. First, in his response, Petitioner alleged that “[o]n the day in question
the Mailroom Supervisor, Robin Dickerson was not at work” and the “Legal Log was not
used because the replacement supervisor did not know the procedure that was suppose[d]
to be in place.” Id. Yet, in a notarized statement attached to his response, Petitioner alleged
(1) he “placed [his August 2017] petition in the only mail box provided, which is located
in front of the chow hall adjacent to the rotunda,” (2) that “there is no legal mailing system

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In addition to Bethea’s second affidavit, Respondent also submitted a statement
from Petitioner’s institutional account showing no disbursement of a $5 filing fee in August
2017 and one disbursement of a $5 filing fee in March 2018. Dkt. # 6-3, at 1. The latter
disbursement corresponds with Petitioner’s filing of the instant habeas petition. Id.; Dkt.
# 2. Respondent contends this account statement further supports that Petitioner did not
file a petition in August 2017. Dkt. # 6, at 4-5.3 The Court finds the absence of a filing
fee disbursement in August 2017 relevant but not entitled to much weight in considering
whether Petitioner actually mailed a habeas petition in August 2017. It is not uncommon
for a pro se prisoner to file a federal habeas petition without contemporaneously submitting
the requisite filing fee.
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per se’, and that the law library has no legal mail logging system in place,” (3) the NFCC
“had no mail-room in August 2017,” and (4) “the common practice here at the [NFCC] is
to either put legal mail in the general mailbox unsealed, and the mail-room supervisor
picks it up and takes it to the law library, or you can (on your day) take it to the law library,
and then it is given to the mail supervisor.” Dkt. # 9, at 9-10 (bold-face type, italics and
underlining in original).
Faced with Bethea’s two affidavits and Petitioner’s contradictory statements, the
Court directed Respondent to submit the NFCC’s outgoing legal mail logs from July 2017,
August 2017 and September 2017. Dkt. # 13, at 2; see Houston, 487 U.S. at 275 (“Because
reference to prison mail logs will generally be a straightforward inquiry, making filing turn
on the date the pro se prisoner delivers the notice to prison authorities for mailing is a
bright-line rule, not an uncertain one.”). Those outgoing legal mail logs demonstrate that
(1) the NFCC had a legal mail system available in August 2017, (2) NFCC officials logged
inmates’ outgoing legal mail throughout the month of August 2017, and (3) the August
2017 log includes one entry for August 28, 2017, and multiple entries between August 29,
2017, and September 29, 2017, none of which reflects any outgoing legal mail from
Petitioner. Dkt. # 14-1, at 1-33. As a result, the Court finds, that even assuming Petitioner
mailed a federal habeas petition to this Court in August 2017, he has not met his burden to
establish that he did so by utilizing the NFCC’s legal mail system. As a result, the Court
cannot apply the prison mailbox rule to deem his April 2018 petition timely.
C.

Petitioner has not shown any circumstances supporting equitable tolling.
Because the AEDPA’s one-year limitation period is not jurisdictional, that period
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is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). To
obtain equitable tolling, a state prisoner must show “‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing” of his federal habeas petition. Id. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). The Supreme Court “treat[s] the[se] two
requirements as distinct elements . . . rejecting requests for equitable tolling where a litigant
fail[s] to satisfy one without addressing whether he satisfied the other.” Menominee Indian
Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016). A state prisoner seeking
equitable tolling “bears a strong burden 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. 2008)).
Petitioner fails to satisfy that burden here. He appears to seek equitable tolling based
on his general allegations that (1) NFCC officials are responsible for his failure to either
understand or comply with the prison mailbox rule with respect to his purported August
2017 petition, (2) the NFCC fails to maintain appropriate staffing levels or to “properly
execute[]” the Oklahoma Department of Corrections’ policies and procedures, and (3) he
“is unskilled in law” and “unaided by counsel.” See Dkt. # 1, at 20; Dkt. # 9, at 4-6, 9;
Dkt. # 10, at 2; Dkt. # 12, at 1-5. These allegations do not support equitable tolling. First,
state prisoners seeking federal habeas relief are ordinarily uneducated in the law and most
often proceed without counsel. These ordinary circumstances do not support equitable
tolling of the one-year period. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)
(“[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not
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excuse prompt filing.” (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999))).
Second, even assuming the NFCC is understaffed, Petitioner fails to show how that
circumstance prevented him from filing a timely habeas petition. True, he alleges (1) the
mailroom supervisor was out sick when he mailed the August 2017 petition and (2) the
“replacement supervisor did not know” how to utilize the “Legal Log.” Dkt. # 9, at 5.
However, he also alleges he placed his August 2017 in a mailbox by the facility’s “chow
line” because the NFCC “has no legal mail logging system in place” and “had no mailroom in August 2017. These contradictory statements, in conjunction with the NFCC’s
outgoing legal mail logs showing that NFCC officials logged inmates’ outgoing legal mail
throughout the month of August 2017 with no apparent complications, see Dkt. # 14-1, at
11-24, significantly undermine Petitioner’s claim that NFCC officials are responsible for
his failure to use the facility’s legal mail system. Third, while Petitioner lodges multiple
complaints about the NFCC’s execution of the ODOC’s policies and procedures, the
NFCC’s outgoing legal mail logs demonstrate that the NFCC provided inmates an adequate
legal mail system during the time frame Petitioner claims he was prevented from filing a
timely habeas petition.

Moreover, the record reflects that Petitioner, who remains

incarcerated at the NFCC, filed a federal habeas petition in April 2018, only one month
after he contends he learned that this Court had not received the August 2017 petition. Dkt.
# 1, at 1, 19, 24-25. The April 2018 petition arrived at this Court in an envelope identified
as “Legal Mail,” initialed as received by NFCC officials for mailing on April 6, 2018, and
postmarked April 9, 2018. Id. at 27. In short, the record establishes that the NFCC had a
legal mailing system in August 2017 and the record does not support Petitioner’s claim that
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“matters outside [his] control” prevented him from using that system to file a timely federal
habeas petition. Menominee Indian Tribe of Wis., 136 S. Ct. at 756. For these reasons,
Petitioner fails to establish that his circumstances warrant equitable tolling.
CONCLUSION
Petitioner’s habeas petition is untimely under 28 U.S.C. § 2244(d)(1)(A) and
Petitioner has not shown any circumstances that would excuse the untimeliness. The Court
therefore grants Respondent’s motion to dismiss and dismisses the petition for writ of
habeas corpus, with prejudice, as time barred.
Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts,
requires a district court to “issue or deny a certificate of appealability when it enters a final
order adverse to the [habeas] applicant.” The court may issue a certificate of appealability
“only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). When the court dismisses a habeas petition on procedural grounds,
the applicant must make this showing by demonstrating both “[1] that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and [2] that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court finds that reasonable jurists would not debate the correctness of the Court’s
determinations that the habeas petition is time barred and that Petitioner fails to
demonstrate any circumstances that would excuse the untimeliness of his petition. The
Court therefore denies a certificate of appealability.
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ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Respondent’s motion to dismiss the petition as time barred (Dkt. # 5) is granted.

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 herewith.
DATED this 5th day of November 2018.

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