Hopkins v. Martin

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARK ANTHONY HOPKINS, )

)

Petitioner, )

)

v. ) Case No. 20-CV-0084-TCK-JFJ

)

JIMMY MARTIN, )

)

Respondent. )

OPINION AND ORDER

Petitioner Mark Anthony Hopkins, a state inmate appearing through counsel, commenced

this action on February 26, 2020, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus

(Dkt. 4). Before the Court is respondent’s motion (Dkt. 6) to dismiss the habeas petition as barred

by 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations. For the reasons that follow, the Court

grants respondent’s motion and dismisses the petition for writ of habeas corpus, with prejudice, as

barred by the statute of limitations.

I.

Petitioner seeks federal habeas relief from the judgment entered against him in the District

Court of Tulsa County, Case No. CF-2013-1068. Represented by counsel, petitioner pleaded

guilty in that case to one count of first degree murder, three counts of shooting with intent to kill,

and two counts of feloniously pointing a firearm. Dkt. 7-1, at 1-4.1 The trial court found petitioner

was competent for purposes of the plea hearing and accepted petitioner’s pleas as knowing and

voluntary. Id. at 5. On December 12, 2013, the trial court sentenced petitioner to serve life without

parole, three life sentences, and two 10-year prison terms. Dkts. 7-2 through 7-7.

1 For consistency, the Court’s record citations refer to the CM/ECF pagination.

Proceeding pro se, petitioner timely moved to withdraw his plea on December 23, 2013,

primarily alleging counsel failed to adequately advise him about entering a guilty plea. Dkt. 7-8.

Trial counsel filed a motion to withdraw the plea on December 23, 2013, sought leave to withdraw,

and asked the court to appoint conflict counsel. Dkt. 7-9. The trial court appointed conflict

counsel, held a hearing on the motion to withdraw the plea, and denied the motion in an order filed

January 22, 2014. Dkt. 7-10, at 24-25. Petitioner did not pursue a certiorari appeal. Dkt. 4, at 8;

Dkt. 7, at 2.

On September 6, 2019, petitioner, represented by the same counsel who appears in this

habeas action, filed an application for postconviction relief and brief in support of the application

in the District Court of Tulsa County. Dkts. 7-11, 7-12. Petitioner sought relief on three

propositions: (1) the trial court lost jurisdiction to accept his plea because the trial court “failed to

issue a sufficient order determining competence thus violating due process under the Fourteenth

Amendment,” (2) petitioner’s conflict counsel rendered ineffective assistance during the hearing

on the motion to withdraw the plea, in violation of the Sixth and Fourteenth Amendments, and (3)

petitioner was denied the right to appeal through no fault of his own and should be granted an out-

of-time appeal. Dkt. 7-11, at 2-3. The state district court denied postconviction relief on October

11, 2019, petitioner timely filed a postconviction appeal, and the Oklahoma Court of Criminal

Appeals affirmed the denial of postconviction relief on January 17, 2019. Dkts. 7-13, 7-14.

Over one year later, on February 26, 2020, petitioner, through counsel, filed the instant

petition for writ of habeas corpus. Dkt. 4, at 1. Petitioner seeks federal habeas relief on two

grounds: (1) his guilty plea was obtained in violation of the Fourteenth Amendment “where the

state court record cannot be afforded deference because it does not resolve the issue of competency

at the time petitioner entered a plea,” and (2) petitioner received ineffective assistance of counsel

at the hearing on his motion to withdraw the plea, in violation of the Sixth Amendment, because

counsel did not file a notice of appeal from the denial of his motion. Dkt. 4, at 2, 15, 17-18. In

response to the petition, respondent filed a motion (Dkt. 6) to dismiss the petition as barred by 28

U.S.C. § 2244(d)(1)’s one-year statute of limitations and a brief (Dkt. 7) in support of the dismissal

motion. Petitioner did not respond to the dismissal motion.

II.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state prisoner

seeking federal habeas relief from a state-court judgment through a § 2254 petition for writ of

habeas corpus generally has one year to file a federal habeas petition. The one-year limitation

period commences on the latest of the following four dates:

(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). Regardless of when the one-year limitation period commences, that 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).

However, to obtain the benefit of statutory tolling, the petitioner must file the application for state

postconviction relief or other collateral review (1) in accordance with applicable state laws and

procedural rules, Artuz v. Bennett, 531 U.S. 4, 8 (2000), and (2) before the applicable AEDPA one-

year limitation period expires, Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

Because the AEDPA’s one-year statute of limitations is not jurisdictional, federal courts

may toll the one-year limitation period for equitable reasons. Holland v. Florida, 560 U.S. 631,

645 (2010). To obtain equitable tolling, a habeas petitioner must show “‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and

prevented timely filing” of the federal habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)). This is a “strong burden” that requires the petitioner “to show specific

facts to support his claim of extraordinary circumstances and due diligence.” Yang v. Archuleta,

525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir.

2008)). While equitable tolling is available to permit review of untimely habeas claims, it is “a

rare remedy to be applied in unusual circumstances.” Al-Yousif v. Trani, 779 F.3d 1173, 1179

(10th Cir. 2015) (quoting Yang, 525 F.3d at 929).

In addition, courts may excuse noncompliance with the statute of limitations if the

petitioner makes “a credible showing of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383,

392 (2013). Like the remedy of equitable tolling, the Perkins’ exception “applies to a severely

confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable

juror would have convicted [the petitioner].’” Id. at 395 (alteration in original) (quoting Schlup v.

Delo, 513 U.S. 298, 329 (1995)).

III.

Respondent urges the Court to dismiss the petition as time-barred for three reasons. First,

respondent contends the habeas petition is untimely under 28 U.S.C. § 2244(d)(1)(A) because

petitioner failed to file it within one year of the date his state-court judgment became final. Dkt.

7, at 4-5. Second, respondent contends petitioner has not shown that his one-year limitation period

commenced at a later date under any other provisions in § 2244(d)(1). Dkt. 7, at 4-5 n.2. Third,

respondent contends petitioner has not shown that the one-year limitation period should be either

extended or excused for equitable reasons. Dkt. 7, at 5-10.

As previously stated, petitioner did not file a response to the dismissal motion. However,

petitioner did make arguments in his petition to support his belief that he complied with the statute

of limitations. Dkt. 4, at 9-12, 14-15. Fairly construing the petition,2 petitioner appears to argue

that his petition is timely and/or he is entitled to equitable tolling of the one-year limitation period

for three reasons. First, he contends his state-court judgment never became final because he has

an unspecified “mental illness or defect” that caused the trial court to stay his criminal prosecution

and the trial court failed to determine his competency before petitioner entered his guilty plea.

Dkt. 4, at 9-10, 12. Second, petitioner “argues that because of a state created impediment and a

constructive denial of the effective assistance of counsel he has been prevented from bringing a

claim addressing the State action which has prevented him from bringing a claim.” Id. at 12.

Third, petitioner asserts, “[a]ny decision that would violate 28 U.S.C. § 2254(d) is subject to

equitable tolling because § 2254(d) reflects the view that habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’” and because the AEDPA’s statute of

limitations is not jurisdictional. Dkt. 4, at 14-15 (quoting Jackson v. Virginia, 443 U.S. 307, 332

n.5 (1979) (Stevens, J., concurring)).

IV.

The petition is not timely under § 2244(d)(1)(A). Section 2244(d)(1)(A) requires a state

2 Because petitioner is represented by counsel, the Court will not liberally construe the

habeas petition as it would have had petitioner filed the petition himself. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (noting that courts must liberally construe pleadings filed by pro se

litigants). Nevertheless, the Court will construe the petition “so as to do justice.” Fed. R. Civ. P.

8(e).

prisoner to file his or her federal habeas petition within one year of “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). Because petitioner’s convictions resulted from guilty pleas,

his only path to direct review under Oklahoma law was through a certiorari appeal. Clayton v.

Jones, 700 F.3d 435, 441 (10th Cir. 2012). Petitioner therefore had 10 days from December 12,

2013, the date of his sentencing hearing, to file a motion to withdraw his plea and request a hearing

on that motion if he intended to pursue an appeal. See id., 700 F.3d at 441 (noting that an

“application to withdraw guilty plea and the evidentiary hearing are both necessary and critical

steps in securing [a certiorari] appeal” (quoting Randall v. State, 861 P.2d 314, 316 (Okla. Crim.

App. 1993)); Okla. Stat. tit. 22, § 1051; Rule 4.2(A), Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch. 18, App. (2019) (providing criminal defendant convicted on guilty plea must

move to withdraw guilty plea within 10 days of sentencing if defendant intends to appeal).

Proceeding pro se and subsequently through plea counsel, petitioner timely moved to withdraw his

plea, and the trial court denied his motion on January 22, 2014, following a hearing. Dkt. 7-10, at

24-25. Under Oklahoma law, petitioner had 10 days from the trial court’s decision, or until

February 3, 2014,3 to file a notice of his intent to appeal. Rule 4.2(D), Rules of the Oklahoma

Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) (providing criminal defendant seeking

to appeal the denial of a motion to withdraw guilty plea must file a notice of intent to appeal within

10 days of the date the motion is denied). Because petitioner did not file a notice of intent to appeal

before the 10-day period expired, his state-court judgment became final on February 3, 2014, when

the 10-day period expired. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (explaining that a

3 Petitioner’s 10-day period would have expired on February 1, 2014. However, because

that date fell on a Saturday, petitioner had until the following Monday, February 3, 2014, to file a

notice of intent to appeal. Fed. R. Civ. P. 6(a)(1)(C).

state court judgment becomes final when the time for seeking direct review expires).

Petitioner’s argument that his state-court judgment never became final because the trial

court failed to determine his competency before he entered his guilty pleas finds no support in the

record. As respondent argues, the record clearly shows that the trial court held a competency

hearing on August 26, 2013. Dkt. 7-10, at 9. Petitioner, represented by counsel, appeared at that

hearing and stipulated to the findings in a court-ordered mental health evaluation and, based on

that evaluation, the trial court found petitioner was competent to stand trial. Id. Petitioner’s written

plea form also indicates that the trial court found petitioner competent for the purpose of the plea

hearing that was held on October 14, 2013. Dkt. 7-1, at 5. That written form further reflects that

petitioner indicated, “No,” when asked whether he had “ever been treated by a doctor or health

professional for mental illness or confined in a hospital for mental illness.” Id. at 1. On this record,

the Court rejects petitioner’s argument that his state-court judgment never became final.

Thus, as respondent contends, petitioner’s state-court judgment became final on February

3, 2014, when the time expired for petitioner to file a notice of intent to appeal. Under

§ 2244(d)(1)(A), petitioner’s one-year limitation period for filing a timely federal habeas petition

commenced the next day, February 4, 2014, and, absent any tolling events, expired on February 4,

2015. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011) (discussing calculation of

one-year limitation period). And, as respondent contends, petitioner is not entitled to statutory

tolling for this one-year limitation period because he filed his first application for postconviction

relief more than four years after the limitation period expired. Dkt. 7, at 5; see Clark, 468 F.3d at

714 (noting that application for postconviction relief filed after limitation period expires has no

tolling effect).

Based on the foregoing, the habeas petition is untimely under § 2244(d)(1)(A).

V.

Petitioner has not shown that his one-year limitation period commenced at a later date

under any other provision of § 2244(d)(1). Petitioner appears to suggest that his one-year

limitation period commenced at a later date under § 2244(d)(1)(B). That provision requires a state

prisoner to file his or her federal habeas petition within one year of “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.”

Petitioner appears to invoke application of this provision, but fails to develop any coherent

argument as to why it applies. Specifically, after citing all four provisions of § 2244(d)(1),

petitioner asserts, without explanation, “that because of a state created impediment and a

constructive denial of the effective assistance of counsel he has been prevented from bringing a

claim addressing the State action which has prevented him from bringing a claim.” Dkt. 4, at 11-

12. Petitioner neither clearly identifies the alleged “State action” that prevented him from bringing

a claim nor suggests a date on which the alleged impediment created by State action was removed.

Id. Petitioner’s burden to show that some other provision of § 2244(d)(1) governs the

commencement date of his one-year limitation period cannot be satisfied by merely referencing

words drawn from the statutory provision.

Moreover, even if the Court construes petitioner’s argument on this point as resting on his

claim that the trial court never entered a proper final judgment, that argument fails for the reasons

just discussed. Namely, contrary to petitioner’s assertion, the trial court determined his

competency before the plea hearing. Dkt. 7-10, at 9. Further, to the extent he asserts that conflict

counsel’s alleged ineffectiveness prevented him from filing a claim, that assertion fails to show

that § 2244(d)(1)(B) applies because counsel’s alleged failure to file a notice of intent to appeal

does not constitute “State action.” See Sigala v. Bravo, 656 F.3d 1125, 1127 (10th Cir. 2011)

(declining to apply § 2244(d)(1)(B) and reasoning, “State courts do not violate the Constitution or

the laws of the United States by communicating with defendants through counsel, and the alleged

failure of [petitioner’s] attorney to notify him of the amended judgment and sentence, even if true,

cannot properly be ‘state action’ attributable to New Mexico.”).

For these reasons, petitioner fails to show that § 2244(d)(1)(B) applies. And, even fairly

construed, petitioner’s arguments do not suggest that the one-year limitation period commenced

at a later date under either § 2244(d)(1)(C) or (d)(1)(D). As a result, unless petitioner can show

that the one-year period should be tolled for equitable reasons, the petition is barred by the statute

of limitations.

VI.

Petitioner has not shown that the one-year limitation period should be equitably tolled. As

previously stated, a court may equitably toll the one-year limitation period if the habeas petitioner

shows he diligently pursued the claim or claims asserted in the habeas petition and that

extraordinary circumstances prevented the petitioner from timely filing the petition. Holland, 560

U.S. at 645; Yang, 525 F.3d at 928. As respondent contends, petitioner makes neither showing.

First, petitioner’s federal habeas claims allege that the State violated his constitutional

rights (1) in October 2013, when the trial court accepted his guilty pleas without determining that

petitioner was competent to enter them, and (2) in February 2014, when conflict counsel failed to

file a notice of appeal following the trial court’s denial of his motion to withdraw the guilty pleas.

Dkt. 4, at 2. Disregarding the fact that the trial court found petitioner competent to enter the pleas,

petitioner had knowledge of the facts supporting both of these claims, i.e., knowledge of his

purported incompetence and counsel’s failure to perfect an appeal, for at least four years before he

sought postconviction relief in state court as to these claims and five years before he sought federal

habeas relief. This does not demonstrate the requisite diligence. See, e.g., Collins v. Bear, 698 F.

App’x 946, 949 (10th Cir. 2017) (unpublished)4 (rejecting petitioner’s request for equitable tolling,

in part, because petitioner filed the habeas petition more than five years after the statute of

limitations expired); Fisher v. Gibson, 262 F.3d 1135, 1143 (10th Cir. 2001) (noting that equitable

tolling requires diligence and finding, in part, that petitioner did not diligently pursue his claims

when he filed a habeas petition three years and five years after his relevant state-court judgments

became final).

Even assuming the Court could overlook petitioner’s failure to diligently pursue his claims,

petitioner also fails to identify any extraordinary circumstances warranting equitable tolling. First,

petitioner asserts that conflict counsel abandoned him after the trial court denied his motion to

withdraw his plea. Dkt. 4, at 9-10. Accepting this assertion as true, petitioner may have had a

valid excuse for failing to perfect a timely certiorari appeal. But it does not explain why petitioner

waited more than four years after his AEDPA deadline expired to file an application for

postconviction relief and one additional year to file a federal habeas petition after the state court

denied his postconviction appeal. See e.g., Mullins v. Allbaugh, 663 F. App’x 628, 631 (10th Cir.

2016) (unpublished) (rejecting habeas petitioner’s request for equitable tolling of one-year

limitation period based on allegation that trial counsel rendered ineffective assistance by failing to

file a motion to withdraw plea within 10 days of sentencing); Loving v. Mahaffey, 27 F. App’x

925, 926 (10th Cir. 2001) (unpublished) (rejecting habeas petitioner’s arguments for equitable

tolling, notwithstanding his assertion that his lawyer failed to file notice of appeal as requested,

4 The Court cites this unpublished decision, and other unpublished decisions herein, as

persuasive authority. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

and noting that petitioner failed to explain why it took him almost four years after his conviction

became final to file an application for postconviction relief in state court and almost five years

after his conviction became final to file a federal habeas petition).

Next, petitioner appears to argue equitable tolling is warranted because he suffers from

some unspecified “mental illness or defect.” Dkt. 4, at 9. “Equitable tolling of a limitations period

based on mental incapacity is warranted only in exceptional circumstances that may include an

adjudication of incompetence, institutionalization for mental incapacity, or evidence that the

individual is not capable of pursuing his own claim because of mental incapacity.” Alvarado v.

Smith, 713 F. App’x 739, 742 (10th Cir. 2017) (unpublished) (quoting Reupert v. Workman, 45 F.

App’x 852, 854 (10th Cir. 2002) (unpublished)). But the petitioner must offer some evidence

supporting his claim that mental incapacity prevented him from filing a timely habeas petition.

See Wiegand v. Zavares, 320 F. App’x 837, 839 (10th Cir. 2009) (unpublished) (“Allegations of

mental incompetence alone . . . are generally insufficient to warrant equitable tolling.”); Ketchum

v. Parker, 548 F. Supp. 2d 1233, 1235 (W.D. Okla. 2008) (rejecting habeas petitioner’s claim that

mental incompetence warranted equitable tolling because petitioner “offered no evidence

supporting his claim”). Petitioner’s mere allegation that he suffers from a “mental illness or

defect” falls short because, as previously discussed, the trial court found petitioner competent to

stand trial in August 2013, reaffirmed that finding in October 2013 during petitioner’s plea hearing,

and petitioner’s own written statements in his plea form indicate he has never been treated for

mental illness. Dkt. 7-1, at 5; Dkt. 7-10, at 9, 24-25.

Finally, petitioner asserts, “[a]ny decision that would violate 28 U.S.C. § 2254(d) is subject

to equitable tolling because § 2254(d) reflects the view that habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice systems,’” and because the AEDPA’s statute of

limitations is not jurisdictional. Dkt. 4, at 14-15 (quoting Jackson v. Virginia, 443 U.S. 307, 332

n.5 (1979) (Stevens, J., concurring)). Under § 2254(d), to obtain habeas review of a federal claim

that was adjudicated on the merits in state court, the habeas petitioner must show that the state

court’s decision is contrary to clearly established federal law, involved an unreasonable application

of clearly established federal law, or was based on an unreasonable determination of the facts

presented in state court. 28 U.S.C. § 2254(d)(1)-(2). But, as respondent argues, this argument

lacks legal merit. Dkt. 7, at 10-11 n.9; see Wilson v. Crow, 790 F. App’x 172, 173-74 (10th Cir.

2020) (unpublished) (“[T]here is no merit to Petitioner’s argument that the habeas statute of

limitations is inapplicable whenever a habeas petitioner argues that the state court’s decision was

contrary to clearly established federal law or involved an unreasonable determination of the facts.

. . . [T]his argument, which would effectively eviscerate the statute of limitations . . . finds no

support in the law.”).

Based on the foregoing, petitioner has not shown that the one-year limitation period should

be tolled for equitable reasons.5

VII.

Because petitioner failed to file his petition for writ of habeas corpus within the one-year

limitation period set forth in § 2244(d)(1)(A), has not shown that any other provision of

§ 2244(d)(1) applies, and has not shown that the one-year period should be tolled for equitable

reasons, the Court grants respondent’s dismissal motion and dismisses the petition, with prejudice,

as barred by the applicable one-year statute of limitations. Further, because reasonable jurists

5 Respondent also argues that petitioner has not demonstrated that he is actually innocent,

as required to support application of Perkins’ equitable exception. Dkt. 7, at 9-10. But the Court

finds it unnecessary to address this argument because even a fair reading of the petition reveals no

discernible argument from petitioner that he is actually innocent of the crimes for which he

admitted his guilt. See Dkt. 4, generally.

would not debate either that the petition is untimely or that petitioner’s circumstances do not

support equitable tolling, the Court declines to issue a certificate of appealability. See Slack v.

McDaniel, 529 U.S 473, 484 (2000); 28 U.S.C. § 2253(c); Rule 11, Rules Governing Section 2254

Cases in the United States District Courts.

ACCORDINGLY, IT IS HEREBY ORDERED that:

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

2. The petition for writ of habeas corpus (Dkt. 4) is dismissed with prejudice.

3. A certificate of appealability is denied.

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

DATED this 28th day of October 2020.