Wilson v. Dowling

Filing 10

ORDER adopting 8 Report and Recommendation. The Petition for Writ ofHabeas Corpus Pursuant to 28 U.S.C. § 2254 be DENIED. Judgment shall beentered accordingly.. Signed by Honorable Timothy D. DeGiusti on 1/10/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN ANTHONY WILSON,
Petitioner,
v.
JANET DOWLING, Warden,
Respondent.

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Case No. CIV-16-343-D

ORDER
Petitioner, a state prisoner appear pro se, objects to the Magistrate Judge’s
Report and Recommendation (R&R) [Doc. No. 8] recommending summary
dismissal of his Petition for Writ of Habeas Corpus for untimeliness. For the
reasons stated below, the Court finds that Petitioner’s objection is overruled and
adopts the Report and Recommendation in its entirety.
BACKGROUND
On November 1, 2010, Petitioner pled guilty to multiple theft/drug charges
in Case Nos. CF-2009-3958, CF-2009-4050, CF-2010-4621, and CF-2010-4699 in
the District Court of Oklahoma County, Oklahoma. Petitioner moved to withdraw
his guilty plea, but his request was denied on November 23, 2010. Petitioner
appealed his conviction to the Oklahoma Court of Criminal Appeals (OCCA), but
subsequently moved to dismiss the proceedings, and his motion was granted on
May 13, 2011. On July 14, 2014, Petitioner filed an application for post-conviction

relief with the state district court, seeking leave to file an appeal out of time. He
alleged, inter alia, that he was denied effective assistance of trial/appellate counsel,
his plea was involuntary, and he was unconstitutionally denied the right to counsel
on appeal. The district court denied his request, and the OCCA affirmed on
December 11, 2015.
Petitioner filed the present action on April 11, 2016 [Doc. No. 1], alleging
that his plea was not knowing and voluntary and he received ineffective assistance
of counsel at the trial and appellate levels. The matter was referred to United States
Magistrate Judge Bernard Jones for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B), (C). After screening the Petition,1 Judge Jones determined the
Petition was untimely on its face and recommended that the Court dismiss the
action sua sponte. R&R at 2. Judge Jones observed that under the Antiterrorism
and Effective Death Penalty Act (AEDPA), habeas petitions brought under 28
U.S.C. § 2254 must be brought within one (1) year from when a conviction
becomes final. Id. at 2-3 (citing 28 U.S.C. § 2244(d)(1); Preston v. Gibson, 234
F.3d 1118, 1120 (10th Cir. 2000)). Judge Jones found that Petitioner’s conviction
became final on May 13, 2011, when the OCCA granted his request to dismiss his
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Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Court authorizes a district court to conduct an initial screening of petitions and to
dismiss unworthy requests for habeas corpus relief. Ochoa v. Sirmons, 485 F.3d
538, 545 (10th Cir. 2007). To this end, “district courts are permitted, but not
obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas
petition.” Day v. McDonough, 547 U.S. 198, 209 (2006).
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direct appeal. Id. at 3. Since Petitioner failed to successfully plead any tolling
events and did not allege he was actually innocent of the charged offenses, Judge
Jones found his Petition was untimely. Id. at 4. Petitioner timely objected.
DISCUSSION
Because he appears pro se, the Court is required to construe Petitioner’s
filings liberally. Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir.
2014). However, the Court must not assume the role of Petitioner’s advocate. See
Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act
as counsel or paralegal to pro se litigants.”); United States v. Pinson, 584 F.3d 972,
975 (10th Cir. 2009). Furthermore, the Court is under no obligation to construct
legal arguments on Petitioner’s behalf. Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
Petitioner does not dispute that his Petition is untimely. Obj. at 3. Rather, he
argues the merits of his Petition and requests additional fact finding into the merits
of his claims. However, the Court is only required to review de novo any portion of
the R&R to which proper objection has been made, see Fed. R. Civ. P. 72(b)(3),
and Petitioner’s objection falls short of this standard. Regardless, even reviewing
the R&R de novo, the Court agrees with the recommendation. Under the AEDPA,
§ 2254 petitions must generally be filed within one year from the date a conviction
becomes “final.” See 28 U.S.C. § 2244(d)(1). In this regard, a sentence becomes
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final when the defendant’s appeal is dismissed and the defendant fails to seek
rehearing on, or otherwise challenge, the dismissal. See Lee v. Klinger, No. 996286, 2000 WL 216615, at *2 (10th Cir. Feb. 23, 2000) (unpublished)
(“[Defendant’s] conviction became final on April 20, 1987, when the OCCA
dismissed his direct appeal.”); United States v. Meador, 45 F. Supp. 2d 1263, 1264
(N.D. Okla. 1999) (defendant’s judgment of conviction became final when Tenth
Circuit issued mandate dismissing appeal); Gage v. United States, No. CIV-10-92JHP, 2010 WL 1839401, at *2 (E.D. Okla. May 3, 2010) (petitioner’s judgment of
conviction became final when Tenth Circuit granted his motion to dismiss his
direct appeal); Brown v. Milyard, No. 08-cv-2060, 2009 WL 1382155, at *2 (D.
Colo. May 15, 2009) (defendant’s judgment of conviction became final when state
court of appeals issued mandate dismissing direct appeal).
Petitioner does not provide the Court with any persuasive argument that
demonstrates why the limitations period was tolled, or that he was otherwise
prevented from filing this action sooner. Petitioner’s conviction became final on
May 13, 2011, the date the OCCA granted his motion to dismiss his direct appeal.
His filing was untimely, and Petitioner has failed to show he was excused from
timely filing his petition.

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CONCLUSION
Accordingly, the Court ADOPTS the Report and Recommendation of the
United States Magistrate Judge [Doc. No. 8] and orders that the Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 be DENIED. Judgment shall be
entered accordingly.
IT IS SO ORDERED this 10th day of January, 2017.

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