Alston v. Harvanek

Filing 35

ORDER granting in part and denying in part 27 Motion to Dismiss; adopting 33 Report and Recommendation. Respondent is directed to respond to the Petition with respect to Petitioners challenge to his conviction in Case No. CF-2014-22, District Court of Comanche County, Oklahoma, within twenty (20) days of the date of this Order. Signed by Honorable Timothy D. DeGiusti on 1/10/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARSHALL DEAN ALSTON,
Petitioner,
v.
KAMERON HARVANEK, Warden,
Respondent.

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Case No. CIV-16-534-D

ORDER
Marshall Dean Alston, appearing pro se,1 filed this Petition for Writ of Habeas Corpus
[Doc. No. 5] pursuant to 28 U.S.C. § 2254, challenging two state court convictions. The
matter was referred to United States Magistrate Judge Gary M. Purcell for proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Respondent moved for dismissal of the
action. On December 8, 2016, in a Supplemental Report and Recommendation [Doc. No.
33], Judge Purcell recommended Respondent’s Motion to Dismiss [Doc. No. 27] be granted
in part and denied in part. Specifically, Judge Purcell recommended that Petitioner’s
challenge to his conviction in Case No. CF-2014-21 be dismissed with prejudice as untimely
because the statute of limitations period prescribed by 28 U.S.C. §2244(d) expired prior to
its filing, but that Petitioner’s challenge to his conviction in Case No. CF-2014-22 be allowed
to continue.

1

Although the Court liberally construes pro se filings, see United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009), the Court cannot take on the responsibility of serving as Petitioner’s attorney in constructing
arguments or searching the record. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005).

Before the Court is Petitioner’s Objection [Doc. No. 34] to the Report and
Recommendation, wherein he objects on the following grounds: (1) Petitioner’s two
convictions arise out of the same transaction or occurrence, and therefore, violate double
jeopardy laws; (2) case law cited by Judge Purcell fails to “resolve” the issue before the
Court because there was “no existing law expressly referred to by the state district court or
the [Oklahoma Court of Criminal Appeals] in support of their claims Petitioner was required
to file a separate application in Case No. CF-2014-21” (Obj. [Doc. No. 34] at 3); and (3)
Petitioner provided evidentiary support for his claim that he was not properly advised of his
right to appeal by referring to an exhibit in his response to Respondent’s Motion.
As stated more fully below, the Court, exercising de novo review,2 overrules
Petitioner’s Objection and adopts the Report and Recommendation in its entirety.
DISCUSSION3
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. §2244 provides that a habeas petition seeking relief from a state court
judgment must be filed within one year from the date the judgment becomes final. Pursuant
to Rule 4 of the Rules Governing Section 2254 Cases, Judge Purcell was required to review
the Petition upon filing and to recommend dismissal if it appeared from the face of the

2

Pursuant to Fed. R. Civ. P. 72(b)(3), where the district court refers dispositive matters to a
magistrate judge for a report and recommendation, the district court “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Id.; Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1246 (10th Cir. 2015).
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The relevant facts have been thoroughly set forth in the Report and Recommendation and will not
be restated here, except where necessary to address Petitioner’s Objection.

2

Petition that Petitioner was not entitled to relief. See Kiser v. Johnson, 163 F.3d 326, 328-29
(5th Cir. 1999). The expiration of the statute of limitations is properly considered upon such
review. Id. Where Petitioner has timely filed a proper request for post-conviction relief, the
statute of limitations is tolled during the time in which that request is pending in the state
courts. See 28 U.S.C. § 2244(d)(2); see also Hoggro v. Boone, 150 F.3d 1223, 1226 (10th
Cir. 1998). To take advantage of this tolling period, however, Petitioner must file his
post-conviction relief application within the AEDPA limitations period. See Fisher v.
Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).
Judgment was pronounced against Petitioner in Case No. CF-2014-21 on September
9, 2014, and his conviction became final on September 19, 2014. See Suppl. R. & R. [Doc.
No. 34] at 3. Petitioner filed his application for post-conviction relief in Case No. CF-201421 on April 21, 2016, more than seven months after the expiration of the AEDPA statute of
limitations.

Id.

Therefore, the tolling provisions concerning post-conviction relief

applications do not apply to Petitioner’s Case No. CF-2014-21, and his Petition as to that
case is untimely. Petitioner’s Objection fails to address Judge Purcell’s analysis of the
AEDPA statute of limitations as it relates to this habeas action, but nonetheless claims
“certain factors [need] to be considered with respect to Case No. CF-2014-21 before this
Court makes a decision to adopt” the Report and Recommendation. Obj. [Doc. No. 34] at
2.
Petitioner’s first ground of objection is a restatement of issues presented in his
responsive pleading and sufficiently addressed by the Report and Recommendation, and
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therefore, the Court need not readdress it here. Regarding Petitioner’s second ground for
objection, the Court agrees with Judge Purcell’s finding that “the clear statements of the
district court and the OCCA that Petitioner’s July 2015 application did not present a
challenge to his conviction in Case No. CF-2014-21 is controlling as an interpretation of state
law.” Suppl. R. & R. [Doc. No. 33] at 4. It is not within the Court’s habeas purview to “reexamine state-court determinations on state-law questions,” Estelle v. McGuire, 502 U.S. 62,
68 (1991), regardless of whether the state court expressly referred to existing law in support
of its determination. Finally, the evidentiary support Petitioner claims as his third ground for
objection relates to Case No. CF-2014-22, not Case No. CF-2014-21. See Obj. [Doc. No. 34]
at 4. Petitioner did not include allegations that he was not advised of his right to appeal in
his post-conviction application filed in Case No. CF-2014-21, see Ex. 2 [Doc. No. 28-2] at
1-16, nor did he provide evidentiary support for the claim in this habeas action. See Pet.
[Doc. No. 5] at 5. Accordingly, Petitioner’s Objection does not change the outcome of Judge
Purcell’s analysis, nor this Court’s adoption of it.
CONCLUSION
The Court has conducted the de novo review required by 28 U.S.C. § 636(b) of “those
portions of the report . . . to which objection is made.” Id. Upon review, Judge Purcell’s
Report and Recommendation will be adopted.
IT IS THEREFORE ORDERED that the Supplemental Report and Recommendation
[Doc. No. 33] is hereby ADOPTED in its entirety. Respondent’s Motion to Dismiss [Doc.
No. 27] is GRANTED in part and DENIED in part. Accordingly, Petitioner’s action with
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respect to his challenge to his conviction in Case No. CF-2014-21, District Court of
Comanche County, Oklahoma, is hereby dismissed with prejudice. Respondent is directed
to respond to the Petition with respect to Petitioner’s challenge to his conviction in Case No.
CF-2014-22, District Court of Comanche County, Oklahoma, within twenty (20) days of the
date of this Order.
IT IS SO ORDERED this 10th day of January, 2017.

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