Renteria v. Bryant

Filing 25

ORDER finding moot 24 Motion for Order; granting 14 Motion to Dismiss; adopting Report and Recommendations re 18 Report and Recommendation.; denying as moot 19 Motion to Appoint Counsel ; denying as moot 20 Motion for Hearing. Signed by Honorable Timothy D. DeGiusti on 2/12/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSE L. RENTERIA,
Petitioner,
v.
JASON BRYANT, Warden,
Respondent.

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Case No. CIV-16-1333-D

ORDER
Petitioner, a state prisoner appearing pro se, brought this action pursuant to 28
U.S.C. § 2254, seeking habeas relief from his state court conviction for first-degree
rape and sexual battery after a former felony conviction. The matter was referred to
United States Magistrate Judge Shon Erwin for initial proceedings consistent with
28 U.S.C. § 636(b)(1)(B), (C). Respondent moved to dismiss the petition, and on
June 14, 2017, Judge Erwin issued a Report and Recommendation (“R&R” or
“Report”) [Doc. No. 18] in which he recommended that the Court grant
Respondent’s motion and dismiss the petition as untimely. Petitioner timely
appealed.
BACKGROUND
On March 16, 2011, Petitioner pled guilty to first-degree rape and sexual
battery, both after a former felony conviction, in Oklahoma County District Court.
He was sentenced to imprisonment for thirty-two years. Pursuant to 22 OKLA. STAT.

§ 982a, Petitioner filed a Petition for Judicial Review on July 22, 2011, which sought
modification of his sentence. Petitioner also filed two applications for postconviction relief on December 11, 2013 and January 25, 2016. Both were denied by
the trial court and affirmed on appeal by the Oklahoma Court of Criminal Appeals.
On November 11, 2016, Defendant filed the instant habeas petition.
Respondent moved to dismiss the petition on the grounds that Petitioner’s
action was barred by the one-year statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d).
Specifically, Respondent contended that since Petitioner did not appeal from his
March 16, 2011 plea, his conviction became “final” for purposes of the statute on
March 26, 2011.1 Since Petitioner’s action was not commenced until November
2016—five years after his conviction—Respondent contended his habeas petition
was untimely.
Judge Erwin agreed that Petitioner’s action was untimely under the AEDPA.
In this regard, he found neither statutory nor equitable tolling tolled the statute of
limitations. With respect to statutory tolling, Judge Erwin found that Defendant’s
Petition for Judicial Review was not “properly filed” under § 928a because it did not

1

Under Oklahoma law, a defendant may seek to withdraw his plea within ten days
after the entry of judgment and sentence. Bush v. State, 2012 OK CR 9, ¶ 17, 280
P.3d 337, 343 (citing Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch.18, App. (2012)).
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meet certain statutory prerequisites. Next, Judge Erwin found Petitioner’s action was
not saved by equitable tolling because Petitioner failed to establish that (1) he
diligently pursued his claims or (2) he was actually innocent of the crimes for which
he was convicted.
DISCUSSION
The district court must review de novo any part of a magistrate judge’s report
and recommendation to which a proper objection has been made. See Fed. R. Civ.
P. 72(b)(3). Upon the exercise of such review, the Court may accept, reject, or
modify the recommendation; receive further evidence; or return the matter to the
magistrate judge with instructions. See id. The Court has read the Report and
conducted a de novo review of the relevant filings. Based upon this review, and as
set forth more fully below, the Court accepts the Report and adopts it as the ruling
of this Court.
Pursuant to the AEDPA, petitions for a writ of habeas corpus by a person in
state custody are governed by a one-year statute of limitations. See 28 U.S.C. §
2244(d). Section 2244(d)(1) states:
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—
(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;

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(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).
There is no indication in the record that subsections (B), (C), or (D) are at
issue. Because Petitioner failed to file a motion to withdraw his guilty plea, pursuant
to subsection (A) his conviction became final on March 28, 2011. Doby v. Dowling,
632 F. App’x 485, 487 (10th Cir. 2015) (unpublished).2 Petitioner filed his petition
on November 21, 2016—four years after the limitations period had expired; thus,
his action was untimely unless some exception applied. To this end, Petitioner
objects to the Magistrate Judge’s findings that the limitations period was not stayed
by either statutory or equitable tolling.

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As the Magistrate Judge correctly noted, since the tenth day after Petitioner’s
conviction fell on a weekend, he had until the following Monday—March 28,
2011—to seek withdrawal of his plea. See Fed. R. Civ. P. 6(a); Doby, supra.
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I.

STATUTORY TOLLING
The one-year limitations period is tolled while “a properly filed application

for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). For tolling purposes, “an
application is ‘properly filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4,
8 (2000). To this end, the Tenth Circuit has held:
[A] “properly filed” application is one filed according to the filing
requirements for a motion for state post-conviction relief. These
requirements may include: (1) the place and time of filing; (2) the
payment or waiver of any required filing fees; (3) the obtaining of any
necessary judicial authorizations that are conditions precedent to filing,
such as satisfying any filing preconditions that may have been imposed
on an abusive filer; and (4) other conditions precedent that the state may
impose upon the filing of a post-conviction motion.
Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000).
The Magistrate Judge held Petitioner’s Petition for Judicial Review was not
“properly filed” because it was in violation of 22 OKLA. STAT. § 982a. Section 982a,
which provides the statutory remedy for judicial review of sentences, excludes from
its provisions (1) convicted felons who have been in confinement in any state or
federal prison system for any previous felony conviction during the ten-year period
preceding the date of their sentence, and (2) petitions submitted without the consent
of the district attorney. See id. § 982a(A)(3). Here, the record reflects Petitioner was
convicted of felony driving under the influence on September 19, 2005 [Doc. No.
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15-7]. Moreover, the record does not indicate whether the district attorney consented
to the petition.
Petitioner states that his petition was properly filed because “there are no
Court Rules [quoted] about filing telling how [§ 982a applications] are supposed to
be filed.” Obj. at 2. This statement, however, does not override the statutory mandate
that in order to qualify for relief under § 982a, Petitioner could not have had a
previous felony conviction within the last ten years of his sentence and the district
attorney was required to have consented to the request. It is undisputed that neither
prerequisite was satisfied in this case; thus, the Court finds Petitioner is not entitled
to statutory tolling.
II.

EQUITABLE TOLLING
Petitioner seeks equitable tolling on three grounds: (1) his trial attorney failed

to communicate with him, (2) he is actually innocent of the rape charge, and (3)
Oklahoma’s Postconviction DNA Act, codified at 22 OKLA. STAT. § 1373, et al.,
waives the one-year limitation period.
To obtain equitable tolling, a petitioner must show (1) he has been pursuing
his rights diligently, and (2) some extraordinary circumstance stood in his way and
prevented timely filing of his federal habeas petition. Holland v. Florida, 560 U.S.
631, 649 (2010). This is a “strong burden” that requires the petitioner to “show
specific facts to support his claim of extraordinary circumstances and due diligence.”
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Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow,
512 F.3d 1304, 1307 (11th Cir. 2000)).
A.

Alleged Attorney Misconduct

The Tenth Circuit has held that “sufficiently egregious misconduct on the part
of a habeas petitioner’s counsel may justify equitable tolling of the AEDPA
limitations period.” Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007).
Petitioner alleges that his family contacted his attorney’s office and informed him
that Petitioner wanted to withdraw his guilty plea, but his attorney never contacted
him. Obj. at 3. Even taking Petitioner’s allegations as true and assuming Petitioner
has met the first prong of diligent pursuit,3 he has not shown the existence of
extraordinary circumstances that prevented timely filing of his habeas petition.
Petitioner’s habeas petition was filed over four years after the limitations period had
expired, yet he certainly knew the facts necessary for his ineffectiveness claim
shortly after his conviction. Accordingly, the Court finds Petitioner is not entitled to
equitable tolling on this ground.

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It is considerably doubtful whether Petitioner has met this prong. As the Magistrate
Judge noted, Petitioner waited nearly four years to argue his trial counsel had been
ineffective in failing to withdraw his plea.
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B.

Actual Innocence

Actual innocence is an extraordinary circumstance warranting equitable
tolling. To prevail on a claim of actual innocence justifying equitable tolling of the
limitation period, a petitioner “must demonstrate that, in light of all the evidence, it
is more likely than not that no reasonable juror would have convicted him.” Bousley
v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298,
327-328 (1995)). To be credible, such a claim requires a petitioner to support his
allegations of innocence with new reliable evidence—whether it be exculpatory
scientific evidence, credible eyewitness testimony, or critical physical evidence.
Schlup, 513 U.S. at 324. Because “such evidence is obviously unavailable in the vast
majority of cases, claims of actual innocence are rarely successful.” See id.
Petitioner claims he is entitled to equitable tolling because he was accused4 of
ejaculating on the victim, yet a Forensic Report excluded him as a contributing
source of DNA on the victim. Obj. at 4. The Magistrate Judge, however, found
Petitioner was not entitled to equitable tolling because (1) neither of the crimes for
which he was convicted depended on the presence of seminal fluid or sperm and (2)
the aforementioned Forensic Report had already been considered and discounted by
Oklahoma state courts. See R&R at 10-12.

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The Affidavit of Probable Cause [Doc. No. 16-2] referenced by Petitioner does not
accuse him of ejaculating on the victim. Rather, the affidavit notes that Petitioner
himself stated that he had ejaculated on the victim. Id. at 7.
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The Court finds Petitioner cannot meet the established standard via his
assertion that DNA testing has exonerated him of his crimes. As correctly noted by
the Magistrate Judge, neither of the crimes for which Petitioner was convicted
required the presence of seminal fluid. Viewing Petitioner’s allegations favorable to
him, the absence of such evidence only establishes he was not the source of DNA
found on the victim—it would not, however, establish he did not either: (1) engage
in an act of sexual intercourse with someone incapable of giving legal consent
through mental illness, in violation of Oklahoma’s rape statute, 21 OKLA. STAT.
§11145 or (2) touch, maul or feel the victim’s body or private parts in a lewd and
lascivious manner, in violation of the sexual battery statute, 21 OKLA. STAT. § 1123.
Petitioner has not demonstrated it is more likely than not that no reasonable juror
would have convicted him of the crimes for which he was convicted, and he has not
presented any new reliable evidence in this regard.

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Under Oklahoma law, “[t]he essential guilt of rape or rape by instrumentation,
except with the consent of a male or female over fourteen (14) years of age, consists
in the outrage to the person and feelings of the victim. Any sexual penetration,
however slight, is sufficient to complete the crime.” 21 OKLA. STAT. §1113.
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1.

Oklahoma’s Postconviction DNA Act

In further support of his claim of actual innocence, Petitioner also contends
that his request for “Touch” DNA testing6 under Oklahoma’s Postconviction DNA
Act “waives” the one-year limitations period. This objection is overruled on two
grounds. First, as stated above, AEDPA’s one-year limitations period is tolled when
a properly filed application for State post-conviction or other collateral review is
pending. 28 U.S.C. § 2244(d)(2). Here, the record shows Petitioner’s request for
DNA testing was made well after the limitations period had expired. Second,
Petitioner must support his allegations of actual innocence with new reliable
evidence; his request for DNA testing does not constitute “new evidence” for
purposes of equitable tolling. Compare Chavez v. Trani, 534 F. App’x 799, 801 (10th
Cir. 2013) (unpublished) (finding petitioner was not entitled to equitable tolling
based on blanket assertion that DNA evidence would exonerate him). Accordingly,
Petitioner’s objections on this issue are overruled.
CONCLUSION
For the reasons stated

herein, the Court ADOPTS the findings and

conclusions set forth in the Magistrate Judge’s Report and Recommendation [Doc.

6

“Touch” DNA testing, in simple terms, involves examining the DNA of someone
who merely touched something with his skin. See, e.g., United States v. Watson, 792
F.3d 1174, 1177-79 (9th Cir. 2015).
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No. 18] as though fully set forth herein. Respondent’s Motion to Dismiss [Doc. No.
14] is GRANTED and the present action is hereby DISMISSED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Appoint Counsel
[Doc. No. 19], Motion for Hearing to Determine DNA Testing [Doc. No. 20], and
Motion for Status [Doc. No. 24] are DENIED as moot.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases, the Court must issue or deny a certificate of
appealability (“COA”) when it enters a final order adverse to a petitioner. A COA
may issue only if Petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, 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 U.S. 473, 484 (2000). Upon

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consideration, the Court finds the requisite standard is not met in this case.
Therefore, a COA is DENIED.
A judgment shall be issued accordingly.
IT IS SO ORDERED this 12th day of February 2018.

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