Stewart v. Bear et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION 8 of Magistrate Judge Charles B. Goodwin...the petition for writ of habeas corpus 1 is dismissed as untimely; the court concludes that jurists of reason would not find this procedural issue debatable, and denies issuance of a certificate of appealability. Signed by Honorable Joe Heaton on 4/7/2017. (Attachments: # 1 Attachment 1 - Report and Recommendation)(cla)

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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WARREN MONROE STEWART,
Petitioner,
v.
CARL BEAR, Warden,
Respondent.

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Case No. CIV-16-837-HE

REPORT AND RECOMMENDATION
Petitioner Warren Monroe Stewart, a state prisoner appearing pro se, brings this
action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. Chief United States
District Judge Joe Heaton has referred this matter to the undersigned Magistrate Judge for
initial proceedings in accordance with 28 U.S.C. § 636. Pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts (“Section 2254
Rules”), the undersigned has examined the Petition (Doc. No. 1) and recommends
dismissal.
BACKGROUND
In this action, Petitioner challenges his conviction upon guilty plea in the District
Court of Caddo County, Oklahoma, on a felony charge of committing lewd or indecent
acts on a child under twelve years of age. See Pet. at 1;1 State v. Stewart, No. CF-2010-

1

References to filings in this Court use the page numbers assigned by the Court’s
CM/ECF system.

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140 (Caddo Cnty. Dist. Ct.).2 On April 21, 2011, Petitioner was convicted and sentenced
to a term of fifty years, with all but twenty years suspended. See Pet. at 1; State v.
Stewart, No. CF-2010-140 (docket entries for Apr. 21, 2011).
Petitioner did not initially move to withdraw his plea or appeal, seek
postconviction relief, or otherwise challenge his conviction or sentence. Pet. at 2-3; State
v. Stewart, No. CF-2010-140 (docket entries from Apr. 21, 2011, to Jan. 3, 2014). Nearly
three years later, on January 3, 2014, Petitioner filed an Application for Postconviction
Relief in the state trial court. Pet. at 2, 16-21. The trial court initially failed to rule upon
this Application, and on April 6, 2016, Petitioner submitted a Supplemental Application
for Postconviction Relief, as well as some additional motions. Pet. at 3-4, 22-27, 28-35.
The trial court denied both Applications on April 15, 2016, and Petitioner
appealed that disposition to the Oklahoma Court of Criminal Appeals (“OCCA”). Pet. at
2, 3-4, 36; Stewart v. State, No. PC-2016-347 (Okla. Crim. App.). The OCCA affirmed
the denial of postconviction relief on June 16, 2016. Stewart v. State, No. PC-2016-347
(Order of June 16, 2016). Petitioner then filed the instant § 2254 Petition in this Court,
along with supporting exhibits, on July 11, 2016. See Pet. at 15; Fleming v. Evans, 481
F.3d 1249, 1255 n.2 (10th Cir. 2007).
Liberally construed, Petitioner asserts that he is entitled to a hearing and to habeas
relief because: (1) he received ineffective assistance from trial counsel; (2) the trial court
lacked jurisdiction because the alleged crime took place on federal Indian land and
2

The undersigned takes judicial notice of the dockets and selected filings for Petitioner’s
state-court proceedings, which are publicly available through http://www.oscn.net.
2

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federal laws preempt state laws; (3) evidence exists that proves that changes in state
parole law result in a violation of the federal Constitution’s prohibition against ex post
facto laws; (4) the trial court sentenced Petitioner under a repealed sentencing range; and
(5) a transfer to a private prison and the prosecutor’s failure to do his duty “void[ed
Petitioner’s] plea agreement.” See Pet. at 6, 7-8, 9, 10-11, 18-21, 22-27.
ANALYSIS
A. Screening Requirement and Jurisdiction
The Court is required to review habeas petitions promptly and to dismiss a petition
“[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Section 2254 R. 4. The Rule allows the district
court to sua sponte dismiss a petition for writ of habeas corpus if its untimeliness is “clear
from the face of the petition itself.” Kilgore v. Att’y Gen. of Colo., 519 F.3d 1084, 1089
(10th Cir. 2008); accord Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts
are permitted . . . to consider, sua sponte, the timeliness of a state prisoner’s habeas
petition.”).
B. The Applicable Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets forth
a one-year statute of limitation for habeas petitioners challenging the validity of their
conviction or sentence:
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—

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(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).
The one-year limitations period generally runs from the date the judgment became
“final” under § 2244(d)(1)(A), unless a petitioner alleges facts that implicate §
2244(d)(1)(B), (C), or (D). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
Recognizing the ostensible tardiness of his Petition, Petitioner attempts to argue that the
latter subsections are applicable by annotating the preprinted text of § 2244(d) that
appears in his Petition form.

See Pet. at 14-15.

For the reasons outlined below,

Petitioner’s effort is unavailing, and his one-year limitations period should be assessed
pursuant to § 2244(d)(1)(A).
First, regarding § 2244(d)(1)(B), Petitioner has circled “the impediment of”
statutory language and written in “2016.” Pet. at 15. Similarly to the remainder of his
Petition, these vague, overly general allegations fail to reasonably apprise the Court of
any actual and unconstitutional impediment that was “created by State action” and
prevented Petitioner from timely filing his habeas suit.
4

To the extent Petitioner is

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attempting to rely upon impediments he encountered merely by virtue of his
incarceration, such difficulties could possibly be relevant to whether Petitioner is entitled
to equitable tolling (as discussed below), but Petitioner fails to plausibly allege that his
incarcerated status “prevented” him from seeking habeas relief or explain how such an
impediment was removed in “2016,” as required for application of § 2244(d)(1)(B).
Next, regarding § 2244(d)(1)(C), Petitioner has underlined “initially recognized
by” and appears to allude to either the Supreme Court’s decision in DIRECTV, Inc. v.
Imburgia, 136 S. Ct. 463 (2015), or the Supreme Court’s decision in Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015). See Pet. at 4, 5, 15, 22-23, 24-25.
Petitioner cites DIRECTV to support his argument that the state court lacked
jurisdiction over his criminal case because: the alleged crime occurred on federal Indian
land, and federal rules mandate that a court can “gain jurisdiction of a felony” only by a
grand jury indictment and not by a written information (as was used to charge Petitioner
here), and DIRECTV held that “state courts must comply with and enforce all federal
rules, regulations, laws and the Constitution in all state courts.” Pet. at 4, 22-23.3 The

3

Petitioner asserts that his claim that the trial court lacked jurisdiction over Petitioner’s
case is nonwaivable and “can be raised at any time.” See Pet. at 4, 9, 22-23. “Absence of
jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief
cognizable under the due process clause.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921,
924 (10th Cir. 2008). However, the Tenth Circuit has held in unpublished opinions that
similar due process claims were subject to dismissal for untimeliness on habeas review.
See, e.g., Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011); United States v.
Patrick, 264 F. App’x 693, 694-95 (10th Cir. 2008). And in Hall v. Falk, the Tenth
Circuit denied a certificate of appealability when the district court dismissed as
unauthorized and second-or-successive a habeas petition alleging that the state trial court
had lacked subject-matter jurisdiction to enter the underlying criminal conviction because
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Supreme Court in DIRECTV did state, in the course of explaining that state courts are
required to follow the Supreme Court’s interpretation of the Federal Arbitration Act,
“[T]he Supremacy Clause forbids state courts to dissociate themselves from federal law
because of disagreement with its content or a refusal to recognize the superior authority
of its source.” DIRECTV, 136 S. Ct. at 468 (internal quotation marks omitted). But
Petitioner himself recognizes that this supremacy principle “has always been the ‘law-ofthe-land.’” Pet. at 22 (citing cases). And there is nothing in the remainder of the
DIRECTV decision recognizing a relevant constitutional right now asserted by Petitioner
or making any such right “retroactively applicable to cases on collateral review.” 28
U.S.C. § 2244(d)(1)(C).
Petitioner cites Kingsley for the proposition that the trial court lacked jurisdiction
to accept his guilty plea “until it first determined the ‘legally-requisite-state-of-mind’ of
the Defendant at the time of the al[leg]ed criminal act, from the Defendant’s
p[er]spective, and whether Defendant[’]s interpretation of the physical act is subjective,
or objective.” Pet. at 24. Kingsley, however, is a decision addressing the standard to be
used for an excessive-force civil rights claim brought by a pretrial detainee under 42
U.S.C. § 1983—i.e., whether a pretrial detainee must show that the state official’s use of
force was objectively unreasonable or that the official was subjectively aware that his or
her use of force was unreasonable. See Kingsley, 135 S. Ct. at 2470-77. In adopting the
objective standard, the Supreme Court addressed requirements for proof of civil liability
the petitioner had not been indicted by a grand jury. See Hall, 535 F. App’x 762, 762-63
(10th Cir. 2013).
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and did not purport to reach the requisite state-of-mind requirements for any type of
federal or state criminal liability—much less establish a new right or determine what is
required for a state court to accept a criminal defendant’s guilty plea on a state-law
charge. See id. Petitioner’s citations to DIRECTV and Kingsley therefore fail to show
that § 2244(d)(1)(C) applies in this habeas proceeding.
Finally, Petitioner underlines “factual predicate” in § 2244(d)(1)(D) and writes:
“3-29-16 New St.App.Ct. Ruling.” Pet. at 15; see also Pet. at 6 (referencing “[n]ewly
discovered evidence”).

This date does not appear to reference any court ruling in

Petitioner’s own state-court proceedings, and the undersigned discerns no further
explanation of this unclear notation in the pleading. In any event, Petitioner offers no
support for the proposition that the issuance of a court’s order or opinion would provide a
new factual (rather than legal) predicate for any of his habeas claims. See 28 U.S.C. §
2244(d)(1)(D); Pet. at 14-15.
Therefore, because Petitioner fails to allege facts that plausibly implicate §
2244(d)(1)(B), (C), or (D), the undersigned considers the timeliness of the Petition under
§ 2244(d)(1)(A).
C. Section 2244(d)(1)(A)
The date of the judgment and sentence in the conviction under attack was April
21, 2011. See State v. Stewart, No. CF-2010-14 (docket entries for Apr. 21, 2011).
Oklahoma law provides a specific course of procedure for the appeal of a conviction
based upon a guilty plea. See Clayton v. Jones, 700 F.3d 435, 441 (10th Cir. 2012).
“First, . . . the defendant must file an application in the trial court to withdraw his plea
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within ten days of the judgment and sentence, with a request for an evidentiary hearing.”
Id. (citing Okla. Stat. tit. 22, ch. 18 app., R. 4.2(A)). “If the trial court denies the motion
to withdraw, the defendant may then appeal by way of a petition for writ of certiorari” to
the OCCA. Id. (citing Okla. Stat. tit. 22, § 1051(a); id. ch. 18 app., R. 4.2(D)). If,
however, the defendant fails to file an application to withdraw his or her guilty plea
within the ten-day period, the defendant’s conviction is considered final upon the
conclusion of that period. See Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006).
Petitioner did not seek to withdraw his plea or otherwise challenge his conviction
within ten days. See Pet. at 2, 36; State v. Stewart, No. CF-2010-140. As a result,
Petitioner’s conviction became final on May 2, 2011.4 See Clark, 468 F.3d at 713.
Assuming the limitation period under § 2244(d)(1)(A) began to run the next day,
Petitioner had until May 3, 2012, to file a federal habeas action. See 28 U.S.C. §
2244(d)(1)(A); Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011) (citing
United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003)). Because Petitioner did not
file his Petition until more than four years later, on July 11, 2016, this habeas action—
absent tolling or an exception—is untimely under 28 U.S.C. § 2244(d)(1)(A).
i.

Statutory Tolling

For petitions brought under 28 U.S.C. § 2254, the § 2244(d)(1) one-year
limitations period is tolled while “a properly filed application for State post-conviction or
4

The final day of the ten-day period was May 1, 2011, a Sunday. In accordance with
state procedural rules, Petitioner’s deadline to file an application to withdraw his guilty
plea was extended to Monday, May 2, 2011. See Okla. Stat. tit. 12, § 2006(A)(1); id. tit.
22, ch. 18 app., R. 1.5.
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other collateral review with respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2); Clark, 468 F.3d at 714 (explaining that “properly filed” means
“filed within the one year allowed by AEDPA”).

Here, Petitioner’s state-court

postconviction attempts were not filed until January 2014 and April 2016, as described
above, and so were filed long after Petitioner’s one-year deadline expired on May 3,
2012. Petitioner’s applications for postconviction relief therefore did not statutorily toll
his AEDPA limitations period. See 28 U.S.C. § 2244(d)(2); Clark, 468 F.3d at 714.
ii.

Equitable Tolling

The AEDPA filing deadline may be equitably tolled in “extraordinary
circumstances.” Clark, 468 F.3d at 714 (internal quotation marks omitted). To be
entitled to equitable tolling, Petitioner must “show both extraordinary circumstances
preventing timeliness and diligent pursuit of his claim.” See id.; accord Holland v.
Florida, 560 U.S. 631, 649 (2010); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000). Circumstances appropriate for equitable tolling include “when an adversary’s
conduct—or other uncontrollable circumstances—prevents a prisoner from timely filing,
or when a prisoner actively pursues judicial remedies but files a defective pleading during
the statutory period.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Petitioner presents no extraordinary circumstance that prevented his timely pursuit
of federal habeas corpus relief. He argues that he has lacked proper access to the prison’s
law library and mailing system, and was unaware of the legal basis for some of his claims
until recently, but a lack of knowledge of the law, incarcerated status, or a lack of legal
assistance generally are insufficient to warrant equitable tolling. See Marsh, 223 F.3d at
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1220; Johnson v. Jones, 502 F. App’x 807, 810 (10th Cir. 2012). Petitioner argues that
his state trial counsel failed to properly advise Petitioner with respect to his plea and to
seeking an appeal, but Petitioner has set forth no facts connecting his state trial counsel to
his federal habeas efforts and has offered “no explanation” “for the lengthy time period
that elapsed between the date his state conviction became final” (May 2, 2011) “and the
date he attempted to pursue any type of post-conviction relief” (January 3, 2014). Brown
v. Poppel, 98 F. App’x 785, 788 (10th Cir. 2004).

Further, although Petitioner

conclusorily asserts that he “has been diligent, and did all he could to be within the
timelines,” his own submissions and the relevant dockets reflect a lack of any pursuit of
federal or state judicial remedies until well after his statutory deadline expired. See Pet.
at 2-4, 14-15; State v. Stewart, No. CF-2010-140; Stewart v. State, No. PC-2016-347.
The lack of “extraordinary circumstances preventing timeliness” and lack of
“diligent pursuit” of Petitioner’s federal claims are clear on the face of the Petition.
Petitioner has not shown that he is entitled to equitable tolling. See Clark, 468 F.3d at
714; Brown, 98 F. App’x at 788.
iii.

Actual Innocence Exception

“[A] credible showing of actual innocence” based on newly discovered evidence
“may allow a prisoner to pursue his constitutional claims” as to his conviction, under an
exception to procedural and limitations-based bars—including 28 U.S.C. § 2244(d)(1)—
established for the purpose of preventing a miscarriage of justice. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928, 1931-32 (2013). Successful actual innocence claims are
rare due to the demanding evidentiary requirements for such claims. See id. at 1928,
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1931, 1936; House v. Bell, 547 U.S. 518, 538 (2006). “[P]risoners asserting innocence as
a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’” House, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)); accord McQuiggin, 133 S. Ct. at 1935 (applying the same standard to
petitions asserting actual innocence as a gateway to raise habeas claims that are timebarred under § 2244(d)(1)). Such claims must be based on “factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Here, Petitioner’s pleading contains naked references to “actual innocence,” but
his factual allegations concern his trial counsel’s effectiveness (including failures
regarding a possible legal defense of “emotional disturbance” and suppression of
unfavorable evidence), the trial court’s jurisdiction, the applicable sentencing range,
“parole law,” and whether post-plea events “void[ed] his plea agreement.” See Pet. at 45, 6, 7-8, 9, 18-21, 22-27. Petitioner does not allege facts that would support the
proposition that he is factually innocent of the felony crime for which he was convicted.
Petitioner’s claimed improprieties in his conviction and sentence do not amount to a
contention that he is actually (rather than legally) innocent of the crimes for which he is
currently incarcerated. See Schlup, 513 U.S. at 327-29; Pet. at 4-5, 6, 7-8, 9, 18-21, 2227. Petitioner’s claims, even liberally construed, do not invoke the actual innocence
equitable exception and do not permit continued consideration of his Petition by this
Court. See McQuiggin, 133 S. Ct. at 1928; Bousley, 523 U.S. at 623.
D. Summary
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Petitioner’s statute of limitations to file this habeas action expired on May 3, 2012,
and he is not entitled to statutory or equitable tolling or to an exception based upon actual
innocence. Because Petitioner did not file his Petition until July 11, 2016, the Court
should dismiss the Petition as untimely under 28 U.S.C. § 2244(d)(1)(A).
RECOMMENDATION
For the foregoing reasons, it is recommended that the Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2254 (Doc. No. 1) be dismissed as untimely.
NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to file an objection to the Report and
Recommendation with the Clerk of this Court by November 21, 2016, in accordance with
28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Petitioner is further advised that
failure to timely object to this Report and Recommendation waives the right to appellate
review of both factual and legal issues contained herein. See Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the
undersigned Magistrate Judge in the present case. The Clerk of Court is directed to serve
copies of the Petition and this Report and Recommendation on Respondent and on the
Attorney General of the State of Oklahoma through electronic mail sent to
[e-mail].
ENTERED this 31st day of October, 2016.

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