Moore v. Martin

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION for 10 Report and Recommendation, 7 Motion to Dismiss filed by Jimmy Martin. This action is dismissed, as more fully set out. Signed by Honorable David L. Russell on 9/26/18. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHEYENNE A. MOORE,

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) Case No. CIV-18-409-R
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Petitioner,
v.
JIMMY MARTIN, Warden
Respondent.
ORDER

Petitioner Cheyenne A. Moore, a state prisoner serving a life sentence for murder,
filed this action under 28 U.S.C. § 2254 seeking habeas relief. See Doc. 1. Pursuant to 28
U.S.C. § 636(b)(1), this matter was referred to United States Magistrate Judge Bernard M.
Jones (“Judge Jones”). On May 29, 2018, Respondent filed a Motion to Dismiss the petition
for habeas relief as time barred. See Docs. 7–8. On June 7, 2018, Judge Jones recommended
that Respondent’s motion be granted. See Doc. 10. Petitioner, represented by counsel,
timely objected, see Doc. 11, giving rise to the Court’s obligation to undertake a de novo
review of those portions of the Report and Recommendation objected to. See Fed. R. Civ.
P. 72(b)(3). Having conducted this de novo review, the Court concludes that the petition
was not filed within the time limitations of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) and should be dismissed.
Petitioner pled guilty to first degree murder and was sentenced to life imprisonment
with the possibility of parole on August 16, 1988. See Doc. 1, at 1, 5. He was fifteen at the
time of the offense. Id. Following appeals, his conviction was affirmed by the Oklahoma

Court of Criminal Appeals (“OCCA”) on July 14, 2000. Doc 1-1, at 1. Nearly seventeen
years later, Petitioner applied for post-conviction relief on April 5, 2017, arguing that his
sentence violates his rights under the Eighth Amendment of the United States Constitution.
Doc. 1 at 2–3. The state district court denied Petitioner’s application on May 26, 2017, and
the OCCA affirmed the denial on April 20, 2018. Id. In affirming the district court, the
OCCA agreed with Petitioner that his challenge to his sentence was not procedurally
barred. Doc.1-1, at 2. However, the OCCA also agreed with the district court’s conclusion
that Petitioner’s claim was meritless because he “was not sentenced to life without the
possibility of parole, and therefore cannot show that the sentence he received, a life
sentence with the possibility of parole, violates the Eighth Amendment . . . .” Id.
Petitioner filed his federal habeas petition on April 27, 2018, asserting one ground
for relief: under Supreme Court precedent, a state that imposes a life sentence on a juvenile
offender must provide that offender with some realistic opportunity to obtain release. Doc.
1, at 7.1 Though Petitioner has already been considered for parole five times, see Doc. 11,
at 7, and will be considered again in March 2019, see Doc. 8-1, he claims that Oklahoma’s
parole system denies him the “realistic opportunity” at parole mandated by Graham v.
Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016). Judge Jones found Petitioner’s claims time-barred by
AEDPA’s one-year limitations period. Doc. 10, at 2. Petitioner counters by arguing that an

1
The facts and arguments underlying this petition are virtually identical to a recently-decided habeas action:
Walker v. Aldridge, No. CIV-18-0382-HE, 2018 WL 3240965 (W.D. Okla. July 3, 2018). Indeed, the filings
in the instant matter and Walker are, at times, indistinguishable. Thus, the Court finds Walker’s logic
persuasive and draws upon it in the analysis above.

2

intervening change in the law applicable to juvenile sentences renders his petition timely.
See Docs. 9, 11.
AEPDA has a 1-year limitations period for an application for a writ of habeas corpus
that runs from the latest of the date on which (A) a state court judgment becomes final, (B)
an unconstitutional state-created impediment to filing an application is removed, (C) the
Supreme Court newly recognizes a constitutional right, or (D) the factual predicate of
claims could have been discovered by exercising due diligence. 28 U.S.C. § 2244(d)(1).
Judge Jones noted that the parties agree that § 2244(d)(1)(C)2 is the applicable provision
here, though they disagree on the trigger date. Respondent contends that the limitations
period began when the Supreme Court decided Miller v. Alabama—on June 25, 2012—
while Petitioner argues that the period began running when the Supreme Court decided
Montgomery v. Louisiana—on January 25, 2016. In Miller, the Supreme Court held that
the Eighth Amendment prohibits mandatory life-without-parole sentences for juvenile
offenders, Miller, 567 U.S. at 479, a prohibition made retroactive by the Court in
Montgomery. See Montgomery, 136 S. Ct. at 734 (“Miller announced a substantive rule of
constitutional law. Like other substantive rules, Miller is retroactive . . . .”).3

2
“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 . . . (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.” 28 U.S.C. § 2244(d)(1)(C).
3

Though “Petitioner was given a life sentence—not a sentence of life without the possibility of parole,”
Judge Jones “proceed[ed], without deciding, as though the decisions in Miller and Montgomery . . . appli[ed]
to [Petitioner’s] case.” Doc. 10, at 3 n.2. Petitioner is a juvenile homicide offender, like the petitioners in
Miller and Montgomery, but he has received consideration for parole five time to date. While it is doubtful
that these Supreme Court decisions apply to Petitioner’s sentence, this Court assumes, like Judge Jones,
that Miller and Montgomery apply.

3

In determining that AEDPA’s limitations period began running when the Supreme
Court decided Miller, Judge Jones relied on Dodd v. United States, 545 U.S. 353 (2005).
Dodd addressed whether AEDPA’s limitations period begins running on the date the
“Court ‘initially recognized’ the right asserted in an applicant’s . . . motion” or on the “date
on which the right is ‘made retroactiv[e].’”4 Dodd, 545 U.S. at 354–55 (alteration in
original) (citation omitted). The Court spoke clearly: “[a]n applicant has one year from the
date on which the right he asserts was initially recognized by this Court.” Id. at 357.
Drawing on Dodd—and caselaw applying Dodd to bar claims brought by petitioners who
argued their juvenile sentences were unconstitutional—Judge Jones concluded that the
one-year limitations period applicable to Petitioner’s claims began running when the Court
decided Miller on June 25, 2012. Thus, Petitioner, absent tolling, had until June 25, 2013
to file his claim, or it would be barred by AEDPA.5

4
Dodd involved a habeas petition filed under 28 U.S.C § 2255—unlike the instant petition, which is filed
under 28 U.S.C. § 2254—but the pertinent provisions of AEDPA are, in all material aspects, identical.
Compare 28 U.S.C. § 2244(d)(1)(C) (“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 . . . 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.”) with 28 U.S.C. § 2255(f)(3) (“A 1-year period of limitation shall
apply to a motion under this section. The limitation period shall run from the latest of . . . the date on which
the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on collateral review.”). The only
difference is that § 2244 requires the newly-recognized right to be a constitutional right.
5

Petitioner challenges Dodd’s applicability throughout his briefing. See Docs. 9, 11. But even assuming
arguendo that the limitations period began running with Montgomery, it is unclear how this would help
Petitioner. Montgomery was decided on January 25, 2016. Under AEDPA, Petitioner would have had to
have sought habeas or post-conviction relief by January 25, 2017 (or thereabouts). But Petitioner sought
his first post-conviction relief on April 5, 2017—over two months past a theoretical limitations period
started by Montgomery. In other words, while Dodd clearly controls, the debate between starting the
limitations period with Miller or with Montgomery is largely academic—starting with either would equally
bar Petitioner’s claim.

4

Judge Jones also found no grounds for statutory or equitable tolling. First, Petitioner
was ineligible for statutory tolling, as he sought post-conviction relief in state court after
AEDPA’s one-year limitations period had expired. See 28 U.S.C. § 2244(d)(2); Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction
relief filed within the one year allowed by AEDPA will toll the statute of limitations.”).
Petitioner was likewise ineligible for equitable tolling, as he failed to show (1) “that he . .
. pursu[ed] his rights diligently” and (2) “that some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotations marks and citation omitted). Petitioner waited over three-and-a-half years after
Miller and fourteen months after Montgomery to seek post-conviction relief. Such delays
alone evince neither diligence nor extraordinary circumstances. See Yang v. Archuleta, 525
F.3d 925, 928 (10th Cir. 2008) (“An inmate bears a strong burden to show specific facts to
support his claim of extraordinary circumstances and due diligence.” (internal quotation
marks, citation, and alterations omitted)).
Petitioner’s Objection, Doc. 10, is unclear,6 unconvincing, or simply unresponsive
to the issues addressed in Judge Jones’s Report and Recommendation.7 Petitioner objects

6
Though Petitioner was represented by counsel, her briefing, at its best, reads as if hurriedly drafted or
cobbled together through copies-and-pastes of prior court filings.
7

Much of Petitioner’s Objection is comprised of regurgitated arguments on the merits from past filings.
Specifically, Petitioner spends pages arguing that Oklahoma’s state parole system does not pass Graham’s
or Miller’s muster and that he indeed has a de facto life-without-parole sentence because of these state
systemic deficiencies. See generally Doc. 11. None of these pages address the central issue of whether the
instant petition for habeas relief is timely. And, notwithstanding their inapplicability, the Court finds many
of Petitioner’s arguments unpersuasive in light of a recent, unpublished order from the Tenth Circuit. See
In re Crenshaw, No. 18-5073 (10th Cir. May 17, 2018). In re Crenshaw also strongly suggests that
Petitioner’s occasional reliance on Virginia v. LeBlanc, 137 S. Ct. 1726 (2017) as an alternate starting date
for AEDPA’s limitations period is misguided. See id.  

5

to the application of Dodd, but offers no meaningful argument as to why this Court is not
bound by that decision. As to equitable tolling, Petitioner fails to explain why he waited
fourteen months after Montgomery was decided to seek post-conviction relief. This failure
is fatal to any tolling he seeks. See Sandoval v. Jones, 447 F. App’x 1, 4 (10th Cir. 2011)
(“Equitable tolling is a rare remedy, and [Petitioner] has done next to nothing to show that
his situation presents the kind of unusual circumstances that would warrant granting relief.”
(internal quotation marks and citation omitted)); Miller v. Marr, 141 F.3d 976, 978 (10th
Cir. 1998) (denying habeas relief to petitioner who “provided no specificity regarding the
alleged lack of access and the steps he took to diligently pursue his federal claims”).
Accordingly, this Court ADOPTS Judge Jones’s Report and Recommendation in its
entirety and GRANTS Respondent’s motion to dismiss. See Docs. 7–8, 10. The action is
dismissed with prejudice. Petitioner is denied a certificate of appealability as the Court
concludes he has not made “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED this 26th day of September 2018.

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