McKinley v. McCollum

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION for 20 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 7/11/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TIMOTHY NEAL MCKINLEY,
Petitioner,
v.
TRACY McCOLLUM, Warden,
Respondent.

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CIV-16-126-R

ORDER
Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate
Judge Gary M. Purcell for preliminary review. On March 24, 2016, Judge Purcell issued a
Report and Recommendation wherein he recommended that Respondent’s Motion to
Dismiss be granted, and that the Petition be dismissed as untimely pursuant to 28 U.S.C.
§ 2244(d). (Doc. No. 12). The Court adopted the Report and Recommendation insofar as
it concluded that Petitioner was not entitled to statutory tolling, but remanded for further
consideration on this issue of equitable tolling. On May 25, 2016, Judge Purcell issued a
Supplemental Report and Recommendation, recommending that the Court conclude the
Petition was timely filed on the basis of equitable tolling. The matter is currently before
the Court on Respondent’s timely objection to the Report and Recommendation, which
gives rise to the Court’s obligation to undertake a de novo review of those portions of the
Report and Recommendation to which specific objection was made. Having undertaken
such review, the Court finds as follows.

The issue on remand to Judge Purcell was whether Petitioner was entitled to
equitable tolling for any portion of the period between June 5, 2014 and August 12, 2014.
Judge Purcell concluded the Court should toll the period between June 6 and August 12,
2014, during which time Petitioner contends he was operating under the mistaken belief
that his application for post-conviction relief, which he mailed to the District Court of
Cleveland County from the Oklahoma State Reformatory on June 6, 2014, had been
received and filed. He presented evidence to the Court that he indeed completed a
disbursement for postage to the Cleveland County Clerk’s office on that date. Petitioner
inquired about the filing on July 23, 2014, and was informed that nothing had been
received. Thereafter, on August 12, 2014, he filed his post-conviction application, starting
the statutory tolling period. Ultimately, following the denial of his application for postconviction relief, Petitioner’s claims herein were untimely unless he was entitled to
equitable tolling for some of this time period.
The undersigned concurs with Judge Purcell that Petitioner is entitled to equitable
tolling. The tolling period began on June 8, 2014, two days after mailing, because
Oklahoma state court’s do not apply a mailbox rule to prisoner filings. The undersigned
concludes the tolling should terminate on July 23, 2014, the date Petitioner stated in a
letter to the Clerk of Court for the District Court of Cleveland County that his review of
the records online indicated that his June 5, 2016 submission had not been received.
Respondent contends in his objection that equitable tolling is inappropriate in part
because Petitioner was not diligent in pursuing his claims, not seeking post-conviction
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relief until, at the earliest, June 2014, when his conviction became final in November
2013. By the Court’s calculation 195 days passed between the finality of Petitioner’s
conviction and his first attempt at post-conviction relief from the state district court. The
Tenth Circuit has applied equitable tolling under circumstances involving a nearly
identical period of time between finality of conviction and the first state post-conviction
filing. See Loftis v. Chrisman, 812 F.3d 1268 (10th Cir. 2016)(although nearly 195 days
passed between finality of conviction and initial post-conviction attempt, the court
concluded that “Petitioner did not sleep on his federal rights, but rather diligently pursued
his claims by filing the documents which he believed would be sufficient to ensure state
court review of his habeas claims”) see also Berger v. Scott, 317 F.3d 1133 (10th Cir.
2003)(finding diligent pursuit where the factual predicate of the claim arose on February
17, 1999 and attempt at state post-conviction not initiated until early January 2000).
Accordingly, the Court disagrees with Respondent’s contention that Petitioner herein was
not diligent in pursuing his claims.
Furthermore, the Court concurs with Judge Purcell's conclusion in the
Supplemental Report and Recommendation that this case presents the rare and
exceptional circumstance for applying equitable tolling. Petitioner submitted a document
that he asserts was an application for post-conviction relief for mailing to the law library
at the Oklahoma State Reformatory.1 There is no dispute that an envelope was mailed to
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Respondent has not submitted direct evidence to support his position. Rather he relies on the difference in the amount
of postage used on the June and August mailings to argue that Petitioner was at fault for the fact that the mailing was
apparently never received by the Court Clerk. Respondent argues in the objection that Petitioner’s own filings establish
that only two sizes of envelopes were available for purchase at OSR and the fact that the application for post-conviction
relief received and filed by the Clerk of Court for Cleveland County required more postage necessitates a finding that

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the Office of the Clerk of Court for Cleveland County on his behalf on June 6, 2014.
There is no dispute that nothing was filed in his case as a result of this mailing. Although
Respondent argues that Petitioner was responsible for any lost mail, asserting that it must
have been deficient in postage, Petitioner asserts in his verified Response and Objection
to Respondent’s Objection to the Report and Recommendation that the law library
determined the amount of postage necessary on the envelope and that he agreed to
disbursement of the appropriate funds based on their calculations. The Court concurs with
Judge Purcell’s conclusion that this case presents the exceptional circumstances to which
equitable tolling can be applied.
For the reasons stated herein, the Supplemental Report and Recommendation is
hereby ADOPTED to the extent that it recommends equitable tolling. The Court
concludes, however, that the tolling should cease on July 23, 2014, after forty-five days.
His Petition herein was therefore timely filed. This matter is re-commited to Judge Purcell
for additional proceedings.
IT IS SO ORDERED this 11th day of July, 2016.

Petitioner failed to affix the appropriate postage to the first mailing. Respondent’s conclusions regarding the type and
size of envelopes and the mailing cost are mere speculation and refuted by Petitioner’s verified response.

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