Weaver v. Bear

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION for 8 Report and Recommendation Signed by Honorable David L. Russell on 6/28/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DARRELL WEAVER,
Petitioner,
v.
CARL BEAR, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-16-1051-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Charles Goodwin, Doc. 8, entered November 30, 2016, and Petitioner’s Objection
to Report and Recommendation, Doc. 11, filed January 19, 2017. The Magistrate Judge
recommended that the Petition for a writ of habeas corpus under 28 U.S.C. § 2254 be
dismissed as untimely.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has reviewed de novo those portions
of the Report and Recommendation to which Petitioner has objected. Because the Court
concurs with the Magistrate Judge that the Petition is untimely, the Petition is DENIED.
Petitioner Darrell Weaver was convicted on two counts of first-degree rape in the
District Court of Custer County, Oklahoma, on March 23, 2003, and sentenced to two
consecutive fifty-year terms of imprisonment. Petitioner appealed his conviction and
sentence, which was then affirmed by the Oklahoma Court of Criminal Appeals (“OCCA”)

1

on March 29, 2004. Mr. Weaver did not seek a writ of certiorari from the United States
Supreme Court.
Mr. Weaver moved this Court for habeas relief under 28 U.S.C. § 2254 on
September 7, 2016. Proceeding pro se, Mr. Weaver offered five grounds for habeas relief:
(1) ineffective assistance of appellate counsel, (2) ineffective assistance of trial counsel,
(3) abuse of discretion by the trial court by excluding certain defense witnesses, (4)
insufficient evidence to support a conviction, and (5) newly discovered evidence proving
his innocence.
After acknowledging that a district court may dismiss a habeas petition when its
untimeliness is clear from the face of the petition, see Kilgore v. Attorney Gen. of Colorado,
519 F.3d 1084, 1085 (10th Cir. 2008) (citing Rule 4 of the Rules Governing § 2254 Cases),
the Magistrate Judge recommended dismissal and found that neither statutory nor equitable
tolling allowed Mr. Weaver to overcome this untimeliness.
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year
limitations period for habeas corpus petitions filed by state prisoners. See 28 U.S.C. §
2244(d)(1). Section 2244(d)(1) provides four separate potential dates from which to begin
counting. While two are arguably implicated here, neither entitle Mr. Weaver to relief.
The first is found in § 2244(d)(1)(D)—“the date on which the factual predicate of
the claim or claims presented could have been discovered through the exercise of due
diligence.” The problem, as the Magistrate Judge pointed out, is that Mr. Weaver does not
allege that he has evidence which was discovered within a year prior of filing for habeas
relief. He simply alleges that he “has newly discovered evidence of victim’s recantation
2

that [P]etitioner is in fact actually/factually innocent of any crime charged against
[P]etitioner . . . .” Doc. 1, at 6. Because Mr. Weaver failed to plead any additional facts that
would allow the Magistrate Judge to construe Mr. Weaver’s Petition under §
2244(d)(1)(D), the Magistrate Judge was required to consider it under § 2244(d)(1)(A).
That provision grants a state prisoner one year to move for habeas relief starting on the
“date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The Magistrate determined that Mr. Weaver’s judgment became final on June 28,
2004, when the ninety-day period for filing a certiorari petitioner with the United States
Supreme Court expired. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011).
Mr. Weaver’s one-year limitations period began to run the next day, on June 29, 2004, so
he had up to and including June 29, 2005 to move for relief under 28 U.S.C. § 2254. Mr.
Weaver’s Petition filed on September 7, 2016, was therefore more than eleven years
untimely.
The Magistrate Judge correctly noted that Mr. Weaver would be entitled to relief if
his limitations period had been either statutorily or equitably tolled. While Mr. Weaver
does not take issue with the Magistrate’s determinations that his limitations period began
running on June 29, 2004, and that this period was never statutorily tolled, Mr. Weaver
does maintain his actual innocence. Recognizing that Mr. Weaver proceeds pro se, the
Court construes his objection as an argument that he is entitled to equitable tolling on the
basis of his actual innocence.

3

“[T]o receive equitable tolling, a petitioner must generally show that ‘he has been
pursuing his rights diligently’ and that ‘some extraordinary circumstance stood in his way’
that prevented timely filing.” Craig v. McCollum, 590 Fed.Appx. 723, 725 (10th Cir. 2014)
(citing Lawrence v. Florida, 549 U.S. 327, 336 (2007)). This remedy is rare, and a
petitioner must therefore show specific facts to support his claim of extraordinary
circumstances and due diligence. Id.
Though Mr. Weaver does not address how he has been diligent in bringing new
evidence of his innocence to the Court’s attention, “a prisoner seeking equitable tolling on
actual innocence grounds need not demonstrate a diligent pursuit.” Id. (citing Lopez v.
Trani, 628 F.3d 1228, 1230 – 1231 (10th Cir. 2010). That said, equitable tolling still
requires extraordinary circumstances. Id. Those circumstances are specific: a petitioner
must show that “it is more likely than not that no reasonable juror would have convicted
him in light of the new evidence.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013).
Further, “[u]nexplained delay in presenting new evidence bears on the determination
whether the petitioner has made the requisite showing.” Id. And the petitioner must make
an argument that he is factually innocent, not just legally innocent. Id.
Mr. Weaver believes he has made this showing, but the Court is not persuaded. His
sole piece of evidence supporting any argument of factual innocence is a letter from a friend
(whom Mr. Weaver fails to identify) that alleges that Mr. Weaver’s rape victim (his
stepdaughter) tried to tell authorities that Mr. Weaver was innocent. Doc. 11, Ex. 3, at 7. It
is unclear when Mr. Weaver’s stepdaughter allegedly attempted to report his innocence.
The letter muses that police might not have accepted her story since “too much time had
4

passed [and] she should have told them the truth to begin with.” Id. Equally unclear is
when Mr. Weaver received this letter. This would seem to be the precise type of
“unexplained delay in presenting new evidence” that militates against finding that Mr.
Weaver has shown his actual innocence. McQuiggin, 133 S.Ct. at 1935.
In short, the Court agrees with the Magistrate Judge that Mr. Weaver has failed to
show he is entitled to equitable tolling based on actual innocence. “A court may consider
how the timing of the submission and the likely credibility of a petitioner's affiants bear on
the probable reliability of evidence of actual innocence.” McQuiggin, 133 S. Ct. at 1935
(alterations omitted). Mr. Weaver’s evidence is not “sufficient to show that it is more likely
than not that no reasonable juror would have convicted [him] in the light of the new
evidence.” Frost v. Pryor, 749 F.3d 1212, 1231–32 (10th Cir. 2014) (citation omitted).
Mr. Weaver’s Petition is therefore denied as untimely. Pursuant to Rule 11(a) of the
Rules Governing Section 2254 Cases in the United States District Courts, the Court denies
Petitioner a Certificate of Appealability. Where a habeas petition is denied on procedural
grounds, a petitioner is entitled to a COA only if he demonstrates that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel, 529 US. 473, 484 (2000).
Mr. Weaver has not made this showing.
In conclusion, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge. Doc. 8. Mr. Weaver’s Petition for a writ of habeas corpus under 28
U.S.C. § 2254, Doc. 1, is DENIED.
5

IT IS SO ORDERED this 28th day of June 2017.

6