Hunt v. Dowling

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

TERRY LEE HUNT, )

)

Petitioner, )

)

v. ) Case No. 18-CV-0440-JED-FHM

)

JANET DOWLING, )

)

Respondent. )

OPINION AND ORDER

Petitioner Terry Lee Hunt, a state inmate appearing through counsel, brings this 28

U.S.C. § 2254 habeas corpus action to challenge the judgment and sentence entered against

him in the District Court of Tulsa County, Case No. CF-1996-5169. Before the Court is

Respondent’s motion to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1)’s

one-year statute of limitations (Doc. 6). Respondent filed a brief in support of her motion

(Doc. 7). Petitioner did not file a response. For the reasons that follow, the Court grants

Respondent’s motion and dismisses the petition, with prejudice, as time-barred.

I.

In 1996, when Petitioner was 16 years old, he agreed to help Timothy Stemple kill

Stemple’s wife, Trisha, in exchange for a portion of Trisha’s life insurance proceeds. Doc.

3, Petition, at 6; see Stemple v. State, 994 P.2d 61, 65 (Okla. Crim. App. 2000) (affirming

judgment and sentence of Petitioner’s co-defendant, Stemple, as to convictions of first-

degree malice murder and conspiracy to commit murder). At the time, Stemple was having

an affair with Petitioner’s cousin. Stemple, 994 P.2d at 65. In October 1996, the two men

killed Trisha by beating her with a baseball bat and running over her with Stemple’s truck.

Id. at 65-66.

In December 1997, Petitioner pleaded guilty to one count of first-degree murder,

and the trial court imposed a sentence of life with the possibility of parole. Doc. 3, Petition,

at 9; Doc. 7, Brief in Support of Motion to Dismiss, at 1. Petitioner did not move to

withdraw his plea or otherwise appeal his conviction and sentence. Doc. 7, at 1.

Petitioner filed an application for post-conviction relief in state district court on

October 27, 2017, claiming his life sentence, imposed for a homicide he committed as a

juvenile, violates the Eighth Amendment. Doc. 3, Petition, at 10. The district court denied

the application on May 1, 2018, and the Oklahoma Court of Criminal Appeals (OCCA)

affirmed the denial of post-conviction relief on July 10, 2018. Id.; see also Doc. 3-1 (state

district court order); Doc. 3-2 (appellate court order).

Petitioner filed the instant federal habeas petition on August 24, 2018. Doc. 3,

Petition, at 1. Petitioner alleges he is entitled to habeas relief on one ground:

The Oklahoma Court of Criminal Appeals made an unreasonable

determination that Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery

v. Louisiana, [136 S. Ct. 718] (2016), are not applicable to his de facto life

without parole sentence, but the sentence is in violation of the Eighth

Amendment.

Id. at 16.

Respondent urges this Court to dismiss the petition as time-barred under 28 U.S.C.

§ 2244(d)(1)’s one-year statute of limitations. Doc. 6, Motion to Dismiss, at 1; Doc. 7,

Brief in Support of Motion to Dismiss, at 1-6. Petitioner does not contest that the petition

is untimely. Doc. 3, Petition, at 11-12. Instead, he asserts the petition “should be construed

as timely and be entitled to equitable tolling.” Id. at 11.

II.

State prisoners have only one year from the latest of four possible dates to file a

timely federal habeas petition: (1) the date on which the prisoner’s state-court judgment

“became final by the conclusion of direct review or the expiration of the time for seeking

such review,” (2) the date on which a state-created impediment to filing a federal habeas

petition was removed, (3) “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 (4) the date on

which the prisoner, with “due diligence” could have discovered “the factual predicate of

the claim or claims presented.” 28 U.S.C. § 2244(d)(1)(A)-(D).

Regardless of when the one-year limitation period commences, the period is tolled

for “[t]he time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending.” Id.

§ 2244(d)(2). But statutory tolling is available only if the prisoner files an application for

post-conviction relief or other collateral review before the one-year limitation period

expires. Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). In appropriate

circumstances, the untimeliness of a federal habeas petition may be excused for equitable

reasons. Holland v. Florida, 560 U.S. 631, 649-50 (2010); Yang v. Archuleta, 525 F.3d

925, 928 (10th Cir. 2008). To obtain equitable tolling, the habeas petitioner bears the

burden to demonstrate both (1) that he diligently pursued his federal claim and (2) that

extraordinary circumstances prevented him from filing a timely federal habeas petition.

Yang, 525 F.3d at 928.

A. The petition is untimely.

Petitioner was convicted and sentenced in 1997. Doc. 3, Petition, at 9. His sole

habeas claim alleges his sentence violates the Eighth Amendment, as interpreted in Miller

and Montgomery. Id. at 16. Under these facts, the Court agrees with Respondent that the

relevant triggering date for Petitioner’s one-year limitation period is the one found in

§ 2244(d)(1)(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.” Doc. 7, Brief in

Support of Motion to Dismiss, at 4.

Applying § 2244(d)(1)(C), the Court also agrees with Respondent that the petition

is untimely. As Respondent argues, the one-year limitation period under this provision

begins to run on the date the Supreme Court initially recognizes the constitutional right

asserted, not the date the newly-recognized right is made retroactively applicable to cases

on collateral review. Doc. 7, Brief in Support of Motion to Dismiss, at 3-4; see Dodd v.

United States, 545 U.S. 353, 357 (2005). In Dodd, the Supreme Court considered when

the one-year limitation period for filing a 28 U.S.C. § 2255 motion to vacate a sentence

begins to run under § 2255, ¶ 6(3)—a provision that mirrors § 2244(d)(1)(C).1 Dodd, 545

U.S. at 356-57. The Supreme Court expressly rejected the argument that the one-year

limitation period under this provision “runs from the date on which the right asserted was

made retroactively applicable.” Id. at 357. Rather, the Supreme Court held, the plain

language of the provision “unequivocally identifies one, and only one, date from which the

1-year limitation period is measured: “the date on which the right asserted was initially

recognized by the Supreme Court.” Id. The Supreme Court recognized this interpretation

of the statute created “the potential for harsh results in some cases,” but reasoned that it

was “not free to rewrite the statute that Congress has enacted.” Id. at 359.

As previously stated, Petitioner primarily relies on Miller and Montgomery to argue

that his sentence of life with the possibility of parole, imposed for a murder he committed

as a juvenile, violates the Eighth Amendment. Doc. 3, Petition, at 16-31. In Miller, the

Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479.

This holding flowed from the Supreme Court’s earlier holding, in Graham v. Florida, 560

U.S. 48, 74 (2010), that the Eighth Amendment prohibits life-without-parole sentences for

juvenile non-homicide offenders. See Miller, 567 U.S. at 471-78 (discussing Graham).

However, while Graham imposed a categorical ban on life-without-parole sentences for all

1 The provision considered in Dodd is now found at 28 U.S.C. § 2255(f)(3) and, as

before, provides that the one-year period for filing a motion to vacate sentence may begin

to run on “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.”

juvenile non-homicide offenders, 460 U.S. at 74, Miller expressly declined to impose a

categorical ban on life-without-parole sentences for all juvenile offenders, 567 U.S. at 479.

Rather, as the Supreme Court later explained in Montgomery, its “substantive holding” in

Miller was “that life without parole is an excessive sentence for children whose crimes

reflect transient immaturity.” Montgomery, 136 S. Ct. at 735. And, to “give[] effect to”

that substantive holding, Miller “requires a sentencer to consider a juvenile’s youth and

attendant characteristics before determining that life without parole is a proportionate

sentence.” Montgomery, 136 S. Ct. at 734. Significantly, for state prisoners who were

sentenced as juveniles to a mandatory term of life without parole before Miller was

decided, Montgomery held that Miller announced a substantive rule of constitutional law

that states must apply on collateral review. Montgomery, 136 S. Ct. at 735. Further, while

the Supreme Court left States free to decide how to implement Miller’s procedural

component, the Supreme Court explained that “a State may remedy a Miller violation by

permitting juvenile homicide offenders to be considered for parole, rather than

resentencing them.” Montgomery, 136 S. Ct. at 736.2

2 The OCCA recently explained how state district courts in Oklahoma “are to

retroactively apply Miller and Montgomery on post-conviction review.” Stevens v. State,

422 P.3d 741, 748 (Okla. Crim. App. 2018). In doing so, the OCCA stated, “[t]o establish

a claim under Miller and Montgomery on post-conviction review, the petitioner must

establish that he is serving a sentence of life without parole for a homicide committed while

he or she was under 18 years of age and was deprived of an individualized sentencing

hearing wherein youth and its attendant characteristics were considered along with the

nature of the crime.” Id. The OCCA further explained that if a Miller violation is found,

the district court should “conduct a new sentencing hearing” and resentence the petitioner

“unless the State is agreeable to the modification of [the petitioner’s] sentence to life

imprisonment.” Id. at 749.

As a preliminary matter, neither Miller nor Montgomery appear to support

Petitioner’s Eighth Amendment claim. Critically, Petitioner is serving a sentence of life

with the possibility of parole for a homicide he committed as a juvenile and, as he

acknowledges, he “has been considered [for parole] by the Parole Board on at least three

occasions.” Doc. 3, Petition, at 18. Nonetheless, Petitioner contends he is serving a “de

facto life without parole” sentence because the Oklahoma Pardon and Parole Board rarely

grants parole. Id. at 16-31. Given the nature of his sentence and the fact that he has

received the only remedy Miller requires—i.e., the possibility for parole—Petitioner does

not appear to present a colorable Eighth Amendment claim.

In any event, even assuming Petitioner could rely on the rule announced in Miller,

and made retroactively applicable to cases on collateral review by Montgomery, the Court

agrees with Respondent that the habeas petition is time-barred. Under Dodd, Petitioner’s

one-year limitation period commenced on June 26, 2012, the day after Miller was decided,

and expired on June 26, 2013. See Dodd, 545 U.S. at 357. Petitioner did not file the instant

federal habeas petition until August 24, 2018—over five years too late. Thus, absent

statutory or equitable tolling, the petition is time-barred.

B. Statutory tolling does not apply.

As just discussed, Petitioner’s one-year limitation period for filing a Miller claim

expired on June 26, 2013. Petitioner did not file an application for post-conviction relief

in state district court until October 27, 2017. Doc. 3, Petition, at 10; Doc. 3-1, District

Court Order Denying Application for Post-Conviction Relief, at 1. As a result, Petitioner’s

application for post-conviction relief had no tolling effect. See Fisher, 262 F.3d at 1142-

43; 28 U.S.C. § 2244(d)(2).

C. Petitioner has not shown that equitable tolling is warranted.

Petitioner asserts that he is “entitled to equitable tolling.” Doc. 3, Petition, at 11.

However, as Respondent contends, Petitioner supports this assertion with a discussion of

general legal principles regarding equitable tolling and fails to provide any specific facts

supporting application of those principles in this case. See id. at 11-12; Doc. 7, Brief in

Support of Motion to Dismiss, at 5. Petitioner therefore fails to satisfy his burden to “show

specific facts to support his claim of extraordinary circumstances and due diligence.”

Yang, 525 F.3d at 928 (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).

The Court thus concludes that equitable tolling is not warranted.

III.

Petitioner relies on Miller v. Alabama, 567 U.S. 460 (2012), to support his claim

that his life sentence violates the Eighth Amendment. But he waited over five years after

Miller was decided to seek federal habeas relief. The petition is thus untimely under 28

U.S.C. § 2244(d)(1)(C). And Petitioner has not alleged, much less demonstrated, any

specific facts that would justify excusing the untimeliness of the petition for equitable

reasons. The Court therefore grants Respondent’s motion to dismiss the petition for writ

of habeas corpus as time-barred, and dismisses the petition, with prejudice. Additionally,

because no reasonable jurists would debate the correctness of the Court’s determination

that the petition should be dismissed as untimely, the Court declines to issue a certificate

of appealability. See 28 U.S.C. § 2253(c)(1)(A); Slack v. McDaniel, 529 U.S. 473, 484

(2000).

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. Respondent’s motion to dismiss (Doc. 6) is granted.

2. The petition for writ of habeas corpus (Doc. 3) is dismissed with prejudice as

time-barred.

3. A certificate of appealability is denied.

4. A separate judgment shall be entered in this matter.

ORDERED this 17th day of May, 2019.