Pace v. Addison et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 9 of Magistrate Judge Suzanne Mitchell and dismisses the habeas petition; certificate of appealability is also denied. Signed by Honorable Joe Heaton on 11/05/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BOYD PACE,
Petitioner,
vs.
WARDEN MICHAEL K. ADDISON,
Respondent.

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NO. CIV-14-0750-HE

ORDER
Petitioner Boyd Pace, a state prisoner appearing pro se, filed this action pursuant
to 28 U.S.C. § 2254 seeking habeas relief. Consistent with 28 U.S.C. §636(b)(1)(B), (C),
the matter was referred to Magistrate Judge Suzanne Mitchell, who recommends that the
petition be dismissed on filing. See Rule 4, Rules Governing 2254 Proceedings.
Petitioner has filed an objection and the court, after conducting a de novo review,
concludes the petition should be dismissed.
In January 2006, petitioner pleaded nolo contendere to ten counts of indecent or
lewd acts with a child under sixteen and one count of exhibition of obscene materials to a
minor child.1 He was sentenced in March 2006 to 31 years imprisonment on the various
counts, some of which were to run concurrently and others to run consecutively. He did
not appeal. Three years later petitioner sought post-conviction relief. The state district
court denied his application and petitioner did not appeal.

1

Almost four years later

The court, like the magistrate judge, has taken judicial notice of the public records of the
District Court of Oklahoma County. See Okla. State Courts Network, State of Okla. v. Pace, Boyd
Keith, Case No. CF–2005–3654, District Court in and for Oklahoma County, Oklahoma, http://
www.oscn.net/applications/oscn/start.asp?viewType=DOCKETS (as accessed Nov. 4, 2014).

petitioner filed a second application for post-conviction relief, which was denied.
Petitioner appealed and the Oklahoma Court of Criminal Appeals affirmed the decision
on July 26, 2013. He then filed this habeas action on July 14, 2013.2
Petitioner asserts three grounds for relief in his habeas petition. The magistrate
judge concluded that the first two, in which petitioner challenges his underlying
convictions, are time-barred. She determined that the third – based on the lack of an
evidentiary hearing during the post-conviction proceedings– lacks merit as it fails to state
a federal constitutional claim.
Because petitioner neither moved to withdraw his plea nor appealed his
convictions, they became final on March 25, 2006. See 28 U.S.C. § 2244(d)(1)(A).
Absent statutory or equitable tolling, the one year statute of limitations for petitioner to
file his federal habeas petition, set by the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), ran on March 26, 2007. See 28 U.S.C. § 2244(d)(1). Petitioner did not,
though, file his habeas petition until July 14, 2014.
The magistrate judge found no basis for statutory tolling of the limitations period.
She also found no basis for equitable tolling, which generally “requires a litigant to
establish two elements: ‘(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)).

2

The magistrate judge deemed the petition filed on the date petitioner gave it to prison
officials for mailing, which she assumed was the day it was executed.. Doc. #1, p. 12.
2

The magistrate judge was not persuaded that petitioner’s claimed ignorance of the
law and the lack of an inmate to help him present his claims constituted extraordinary
circumstances that prevented him from filing his habeas petition on time. The court
agrees. See Yang, 525 F.3d at 928-30. The court also agrees with the magistrate judge
that petitioner’s failure to present “new evidence calling his conviction into question,”
prevents him from demonstrating the actual, i.e. factual, innocence, needed to warrant
equitable tolling. See Foust v. Jones, 261 Fed. Appx. 131, 133 (10th Cir. 2008).3
Even if petitioner had met his burden of demonstrating extraordinary
circumstances, he did not show that he diligently pursued his habeas rights. He offers no
explanation as to why it took him over seven years after the statute of limitations ran to
file his federal habeas petition. Instead, in his objection petitioner asks the court to hold
the case in abeyance to allow him to exhaust federal claims which he states are now
pending in state court and which, he asserts, will demonstrate that tolling applies. He also
requests an evidentiary hearing to support his request for a stay.

The problem is

petitioner did not identify the unexhausted claims or attach a copy of any state postconviction filing to his objection. He also offered no explanation as to why those claims
were not previously exhausted along with the claims he did pursue in his two prior postconviction applications.

3

As the magistrate judge noted in her Report and Recommendation, petitioner did not allege
in his petition that the mental disorders which he claims prevented him from remembering that he
committed any of the crimes, also prevented him from filing his habeas petition within the time
constraints set by AEDPA. See Report and Recommendation, p. 7 n.4.
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Under these circumstances the court concludes petitioner has not demonstrated
either that he diligently pursued his claims for purposes of equitable tolling or that he is
entitled to a stay to allow him to exhaust any unexhausted claims. Petitioner’s first two
grounds for relief will be dismissed as being untimely.
In his third ground for relief petitioner claims the state district and appellate courts
erred by failing to hold an evidentiary hearing during the post-conviction proceedings.
The magistrate judge rejected this claim. She concluded petitioner failed to state a federal
habeas claim because he was not challenging the judgment that provided the basis for his
conviction, but rather the post-conviction remedy, which states are not required by the
Constitution to provide. The court agrees and the third ground for relief will be dismissed
for lack of merit. See Neiberger v. McCollum, 577 Fed. Appx. 850, 853 n.1 (10th Cir.
2014).
The magistrate judge correctly concluded that it appears from the face of the
habeas petition that petitioner is not entitled to relief. Grounds one and two of the habeas
petition are barred by the one year statute of limitations and ground three fails to state a
federal constitutional claim.
Accordingly, the court ADOPTS Magistrate Judge Mitchell’s Report and
Recommendation, and DISMISSES the habeas petition. See Rule 4, Rules Governing
2254 Proceedings. The court also DENIES a certificate of appealability as it finds
petitioner has not made "a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2).
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IT IS SO ORDERED.
Dated this 5th day of November, 2014.

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