Robinson v. Harvanek

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

KEITH EARL ROBINSON, )

)

Petitioner, )

)

v. ) Case No. 20-CV-0086-GKF-CDL

)

RICK WHITTEN,1 )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on respondent’s motion (Dkt. 15) to dismiss petitioner’s 28

U.S.C. § 2254 petition for writ of habeas corpus (Dkt. 1) as barred by 28 U.S.C. § 2244(d)(1)’s

one-year statute of limitations. Respondent filed a brief (Dkt. 16) in support of the motion, and

petitioner filed a response (Dkt. 17) opposing the motion. For the following reasons, the Court

denies respondent’s motion. No later than 30 days after the entry of this opinion and order,

respondent shall file a response to the petition, in accordance with Rule 5, Rules Governing Section

2254 Cases in the United States District Courts, and submit any additional state-court records that

may be necessary to adjudicate petitioner’s claims.

I. Background

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

District Court of Washington County, Case No. CF-2013-280. Dkt. 1, at 1.2 A jury in that case

found petitioner guilty of first degree burglary, after former conviction of two or more felonies,

1 Petitioner is incarcerated at the Lexington Correctional Center (LCC). The Court

therefore substitutes Rick Whitten, the LCC’s interim warden, in place of Jeorld Braggs, as party

respondent. Fed. R. Civ. P. 25(d). The Clerk of Court shall note this substitution on the record.

2 For consistency, the Court’s citations refer to the CM/ECF header pagination.

and the trial court imposed a 23-year prison sentence. Id.; Dkt. 3, at 5. Petitioner filed a direct

appeal asserting six propositions of error. Dkt. 1, at 2; Dkt. 16-1. The Oklahoma Court of Criminal

Appeals (OCCA) affirmed petitioner’s conviction and sentence on July 13, 2015, in Case No. F-

2014-201. Dkt. 16-1. Petitioner did not seek further direct review by filing a petition for writ of

certiorari in the U.S. Supreme Court. Dkt. 1, at 2. However, for the next four years, petitioner

attempted to obtain postconviction relief in state court on claims he did not raise in his direct

appeal.

A. First application for postconviction relief and related proceedings

Petitioner applied for postconviction relief in state district court on August 31, 2015, raising

claims of ineffective assistance of counsel and prosecutorial misconduct. Dkt. 16-2. In the

application, petitioner requested additional time to file a supporting brief. Id. at 3-4. Along with

his application for postconviction relief, petitioner filed three motions requesting an enlargement

of time, an evidentiary hearing and “transcripts at public expense.” Dkt. 16-15, at 13. On

November 13, 2015, petitioner filed an application for writ of mandamus in the OCCA, citing the

state district court’s failure to rule on his motion for transcripts. Robinson v. State, No. MA-2015-

1004, oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2015-1004&cmid

=117901 (last visited Dec. 8, 2020).3 The OCCA denied petitioner’s mandamus application on

December 2, 2015. Id.

3 Respondent provided a copy of the docket sheet from Washington County District Court

Case No. CF-2013-280 and some electronic filings are available through links provided in that

document. Dkt. 16-15. The Court also takes judicial notice of the docket sheets and electronic

filings in petitioner’s related state collateral proceedings. See United States v. Pursley, 577 F.3d

1204, 1214 n.6 (10th Cir. 2009) (finding it appropriate “to take judicial notice of publicly-filed

records in [its own] court and certain other courts concerning matters that bear directly upon the

disposition of the case at hand” (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th

Cir. 2007))).

Nearly one year later, on November 23, 2016, petitioner filed a second application for writ

of mandamus in the OCCA, citing the state district court’s failure to rule on either his motion for

transcripts or his application for postconviction relief. Robinson v. DeLapp, No. MA-2016-1074,

oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2016-1074&cmid

=120394 (last visited Dec. 8, 2020). The OCCA issued an order on December 1, 2016, directing

the state district court to file a response. Id. The next day, on December 2, 2016, the state district

court denied petitioner’s pending motions and his application for postconviction relief. Dkt. 16-

5. The state district court submitted a certified copy of its December 2, 2016 order to the OCCA

on December 6, 2016, and, on December 16, 2016, the OCCA dismissed as moot petitioner’s

application for a writ of mandamus. Robinson v. DeLapp, No. MA-2016-1074,

oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2016-1074&cmid

=120394 (last visited Dec. 8, 2020).

Meanwhile, on December 8, 2016, petitioner filed a notice of postconviction appeal in state

district court and requested “preparation of the record on appeal as required by Rule 5.2(C)(6),

Rule of the Court of Criminal Appeals.” Dkt. 16-6. Petitioner filed a petition in error and brief in

support in the OCCA on January 3, 2017, in Case No. PC-2017-3. Dkt. 16-7. The state district

court received a certificate of appeal from the OCCA on January 6, 2017. Dkt. 16-15, at 14.

Nothing in the record shows that the clerk of the state district court either compiled an appeal

record or filed a notice of completion of record with the OCCA upon receipt of petitioner’s notice

of appeal or upon receipt of the certificate of appeal.4 Dkt. 16-15, at 14.

By order filed April 7, 2017, the OCCA declined jurisdiction and dismissed petitioner’s

postconviction appeal, citing petitioner’s failure to submit a certified copy of the state district

court’s order, as required by Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals,

Title 22, Ch. 18, App. (2017),5 and stating that petitioner “provided an insufficient record for

review.” Dkt. 16-8, at 1.

B. Second application for postconviction relief and related proceedings

Petitioner filed a second application for postconviction relief in state district court, on May

1, 2017, seeking leave to file an out-of-time postconviction appeal and alleging that he did, in fact,

submit a copy of the state district court’s order with the petition in error he filed in his original

4 When petitioner attempted to perfect his original postconviction appeal, Rule 5.3(B),

Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), provided: “Upon

receipt of the Notice of Post-conviction Appeal, the Clerk of the District Court shall compile two

certified copies of the record on appeal as defined by Rule 5.2(C)(6), and ensure the Notice of

Completion of record is filed with this Court within thirty (30) days of the filing of the Notice of

Post-conviction Appeal, unless an extension is requested by the court clerk and granted by this

Court.” Rule 5.2(C)(6) required the record on appeal to include, inter alia, a copy of the state

district court’s order and a copy of the notice of postconviction appeal. In addition, Rule 5.4(B),

Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), required the

assigned district court judge to “monitor and ensure timely notice is provided to the parties by the

clerk of the District Court, and if a notice of post-conviction appeal is filed, a timely completion

of the record on appeal by the clerk of the District Court together with the court reporter(s), as

required.”

5 When petitioner attempted to perfect his original postconviction appeal, Rule 5.2(C)(2)

provided, in relevant part:

A petition in error and supporting brief, WITH A CERTIFIED COPY OF THE

ORDER ATTACHED must be filed with the Clerk of this Court. The petition in

error shall state the date and in what District Court the Notice of Post-Conviction

Appeal was filed. If the post conviction appeal arises from a misdemeanor or

regular felony conviction, the required documents must be filed within thirty (30)

days from the date the final order of the District Court is filed with the Clerk of the

District Court.

postconviction appeal.6 Dkt. 16-9. To support this allegation, petitioner submitted two sworn

affidavits—one from himself and one from a law clerk at his prison. Id. at 5-6. Both affidavits

averred that petitioner included with his petition in error a certified copy of the state district court’s

order. Id.

On September 13, 2017, just over four months after he filed his second application for

postconviction relief, petitioner filed an application for writ of mandamus in the OCCA, seeking

an order directing the state district court to issue a ruling. Robinson v. State, No. MA-2017-943,

oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2017-943&cmid

=122357 (last visited Dec. 8, 2020). On September 26, 2017, the OCCA directed the state district

court to file a response. Id. The state district court issued an order on October 24, 2017,

recommending that petitioner be allowed to file a postconviction appeal out of time. Dkt. 16-10.

On November 14, 2017, after receiving a copy of the state district court’s order, the OCCA

dismissed as moot petitioner’s mandamus application. Robinson v. State, No. MA-2017-943,

oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2017-943&cmid

=122357 (last visited Dec. 8, 2020).

In the interim, on November 8, 2017, petitioner filed an application for an appeal out of

time in the OCCA, in Case No. PC-2017-1137, seeking permission from the OCCA to file a

6 As explained in Gibson v. Klinger, 232 F.3d 799, 806-07 (10th Cir. 2000) (internal

citations omitted):

Oklahoma law allows a prisoner to file applications for leave to appeal out of time,

requiring that he seek permission of both the district and the appellate courts before

filing an actual appeal out of time. Under Oklahoma’s rule, a petitioner seeking

permission to appeal out of time must file an “application for Post–Conviction

Relief,” asking the state district court to grant leave to petition the appellate court.

The petitioner may then appeal the district court’s grant or denial to the Oklahoma

Court of Criminal Appeals. Permission of the state appellate court is required

before a petitioner may file the actual appeal.

postconviction appeal out of time. Dkt. 16-11. With the application, petitioner submitted a copy

of the state district court’s October 24, 2017 order recommending that he be granted leave to file

an out-of-time postconviction appeal. Dkt. 16-11, at 3-5. On January 12, 2018, the OCCA granted

petitioner leave to file an out-of-time postconviction appeal. Dkt. 16-12. In its order, the OCCA

directed petitioner to “lodge the appeal in accordance with Rules 2.1(E)(3) and 5.2(C), Rules of

the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).” Dkt. 16-12, at 2.7 The

OCCA further stated, “[t]he Petition in Error, supporting brief, and a certified copy of the District

Court Order must be filed with this Court within thirty (30) days from the date of this Order as

required by Rule 5.2(C),” and that “[t]he Petition in Error shall reference this Order granting

Petitioner a post-conviction appeal out of time.” Dkt. 16-12, at 2.

Petitioner filed a petition in error and brief in support in the OCCA, in Case No. PC-2018-

105, on January 31, 2018.8 Dkts. 16-13, 16-14. Petitioner submitted several exhibits with his

7 When the OCCA granted petitioner leave to file a postconviction appeal out of time, Rule

2.1(E)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018)),

provided: “When [the OCCA] grants an appeal out of time from a final judgment entered under

the Post-Conviction Procedure Act, the documents required to be filed in [the OCCA] for

perfecting that post-conviction appeal shall be filed by the petitioner within thirty (30) days of the

order granting an appeal out of time in accordance with Rule 5.2(C).” As relevant here, Rule

5.2(C)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018),

provided: “The party desiring to appeal from the final order of the District Court under Section V

of these Rules MUST file a Notice of Post-Conviction Appeal with the Clerk of the District Court

within ten (10) days from the date the order is filed in the District Court.” Rule 5.2(C)(2) provided,

in relevant part, that “[t]he petition in error shall state the date and in what District Court the Notice

of Post-Conviction Appeal was filed.”

8 The state district court received a copy of the OCCA’s order granting petitioner leave to

file an out-of-time postconviction appeal on January 17, 2018, and received a certificate of appeal

from the OCCA, in Case No. PC-2018-105, on February 6, 2018. Dkt. 16-15, at 15. Nothing in

the record reflects either that petitioner filed a notice of postconviction appeal specific to Case No.

PC-2018-105 or that the clerk of the state district court prepared an appeal record or filed a notice

of completion with the OCCA after receiving the related certificate of appeal. Dkt. 16-15, at 15.

supporting brief, including certified copies of the state district court’s December 2, 2016 order

denying his first application for postconviction relief and the state district court’s October 24, 2017

order recommending an out-of-time postconviction appeal. Dkt. 16-14, at 12-14, 17-20. The

OCCA dismissed petitioner’s out-of-time postconviction appeal on May 21, 2018, citing

petitioner’s failure to either provide a copy of his notice of postconviction appeal or provide a

statement in his petition in error regarding the date he filed his notice of appeal, as required by

Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018).

Dkt. 16-16.

C. Third application for postconviction relief and related proceedings

Petitioner filed a third application for postconviction relief in state district court on July 20,

2018, again seeking leave to file an out-of-time postconviction appeal. Dkt. 16-17. In his third

application, petitioner claimed “he was denied his right to appeal” from the denial of his first

application for postconviction relief and the OCCA improperly dismissed his attempted

postconviction appeal out of time, in Case No. PC-2018-105, because “[a] notice of intent to appeal

was properly filed when the [p]etitioner first attempted to appeal the post-conviction denial on

December 8, 2016 and the record was transmitted from the district court to the OCCA.” Dkt. 16-

17, at 1-2. Petitioner argued that even if he did not technically comply with Rule 5.2(C)(2) by

referring to the December 8, 2016 notice of appeal in his petition in error or by attaching a copy

of the notice, “there was practical compliance” because the clerk for the state district court “was

required to transmit a copy of the notice of intent to appeal to the OCCA in accordance with

5.2(C)(6)(f), when the rest of the record was transmitted.” Dkt. 16-17, at 2-3.

Petitioner filed a petition for writ of mandamus in the OCCA, on December 4, 2018,

seeking an order directing the state district court to issue a ruling on his third application for

postconviction relief. Robinson v. Dist. Court of Washington Cty., No. MA-2018-1212,

oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2018-1212&cmid

=125366 (last visited Dec. 11, 2020). The OCCA issued an order on January 3, 2019, directing

the state district court to file a response. Id. The state district court denied petitioner’s third

application on January 16, 2019. Dkt. 16-18.9 The state district court submitted a certified copy

of its order to the OCCA and, on February 5, 2019, the OCCA dismissed as moot petitioner’s

mandamus petition. Robinson v. Dist. Court of Washington Cty., No. MA-2018-1212,

oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2018-1212&cmid

=125366 (last visited Dec. 11, 2020).

Two days later, on February 7, 2019, petitioner filed an application for leave to file an

appeal out of time in the OCCA, in Case No. PC-2019-81. Dkt. 16-19. The state district court

received a certificate of appeal from the OCCA on February 11, 2019, filed a notice of completion

of record on appeal with the OCCA on February 28, 2019, and submitted the record to the OCCA

on March 8, 2019. Dkt. 16-15, at 16. On July 1, 2019, the OCCA affirmed the denial of

petitioner’s third application for postconviction relief, finding that petitioner was not entitled to

file an out-of-time postconviction appeal because he failed to show he was denied a postconviction

appeal through no fault of his own. Dkt. 16-20.

Six months later, on January 30, 2020, petitioner filed the instant federal habeas petition.

9 While petitioner’s third application clearly sought leave to file an out-of-time

postconviction appeal, see Dkt. 16-17, the state district court construed the application as one

directly seeking postconviction relief. In its one-page order, the state district court provided an

abbreviated procedural history of petitioner’s case, stated that petitioner “now returns to the district

court asking for post-conviction relief again in July, 2018,” and denied relief, finding “no basis in

the record [to] sustain his application.” Dkt. 16-18, at 1.

Dkt. 1, at 1, 9.10 Petitioner seeks federal habeas relief on four claims he presented to the OCCA

through his direct appeal, and on the ineffective-assistance-of-appellate-counsel claim he

attempted to present to the OCCA through his original and out-of-time postconviction appeals.

Dkt. 1, at 3-7.

II. Discussion

Respondent moves to dismiss the petition as barred by 28 U.S.C. § 2244(d)(1)’s one-year

statute of limitations. Dkts. 15, 16. Under the Antiterrorism and Effective Death Penalty Act

(AEDPA), a state prisoner seeking federal habeas relief from a state-court judgment generally has

one year from “the date on which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review” to file a 28 U.S.C. § 2254 petition for writ of

habeas corpus in federal court. 28 U.S.C. § 2244(d)(1)(A).11 The one-year limitation period is

tolled, or suspended, 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.”

28 U.S.C. § 2244(d)(2). To obtain the benefit of statutory tolling, the habeas petitioner must

properly file the application for state postconviction relief or other collateral review by complying

with applicable state filing requirements. Artuz v. Bennett, 531 U.S. 4, 8 (2000).

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

10 The Clerk of Court for the U.S. District Court for the Western District of Oklahoma

received the petition on February 3, 2020. Dkt. 1, at 1. But petitioner swears, under penalty of

perjury, that he delivered the petition to prison officials on January 30, 2020, utilizing the prison

mailing system, and the mailing envelope is postmarked January 31, 2020. Dkt. 1, at 9; Dkt. 1-1.

Under these facts, the Court deems the petition filed on January 30, 2020. See Houston v. Lack,

487 U.S. 266, 276 (1988) (adopting prison mailbox rule for inmate filings); Rule 3(d), Rules

Governing Section 2254 Cases in the United States District Courts (establishing requirements for

compliance with prison mailbox rule).

11 The one-year limitation period may also commence on a later date under 28 U.S.C.

§ 2244(d)(1)(B), (C) or (D). Because neither party suggests any of these subsections apply, the

Court considers only whether the petition is timely under § 2244(d)(1)(A).

have discretion to toll the limitation period for equitable reasons. Holland v. Florida, 560 U.S.

631, 645, 649-50 (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)). A petitioner seeking equitable tolling bears the burden

“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)). Equitable tolling is considered “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). And “[s]imple excusable neglect is not sufficient” to warrant equitable tolling. Gibson v.

Klinger, 232 F.3d at 808. Nevertheless, equitable tolling may be appropriate “when an adversary’s

conduct—or other uncontrollable circumstances—prevents a prisoner from timely filing, or when

a prisoner actively pursues judicial remedies but files a defective pleading during the statutory

period.” Id.

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). But Perkins’ equitable exception “applies to a severely confined category” of cases,

namely, “cases in which new evidence shows ‘it is more likely than not that no reasonable juror

would have convicted [the petitioner].’” Perkins, 569 U.S. at 395 (alteration in original) (quoting

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

Respondent contends the petition is untimely under 28 U.S.C. § 2244(d)(1)(A), even with

the benefit of statutory tolling, and that petitioner has not demonstrated any circumstances to

support equitable tolling of the limitation period or application of Perkins’ equitable exception.

A. The petition is untimely under 28 U.S.C. § 2244(d)(1)(A).

Because the OCCA affirmed petitioner’s state-court judgment on July 13, 2015, and

petitioner did not file a petition for writ of certiorari in the U.S. Supreme Court, petitioner’s one-

year limitation period commenced on October 14, 2015, the day after the time expired for

petitioner to seek further direct review.12 28 U.S.C. § 2244(d)(1)(A); Locke v. Saffle, 237 F.3d

1269, 1273 (10th Cir. 2001) (explaining that the AEDPA’s one-year limitation period is tolled

during 90-day period in which the petitioner could seek further review in U.S. Supreme Court,

regardless of whether petitioner actually seeks review). Thus, absent statutory or equitable tolling,

petitioner’s one-year limitation period would have expired on October 14, 2016, more than three

years before he filed the instant habeas petition.

B. Statutory tolling does not render the petition timely.

Petitioner appears to contend that the petition, filed January 30, 2020, is timely because he

is entitled to statutory tolling for the entire period between October 14, 2015, when his one-year

period commenced, and July 1, 2019, when the OCCA affirmed the denial of his third application

for postconviction relief. Dkt. 1, at 8. Thus, in petitioner’s view, he had until July 1, 2020, to file

a timely federal habeas petition. Id.

12 Both parties suggest that petitioner’s one-year limitation period commenced on October

13, 2015. Dkt. 1, at 2, 8; Dkt. 16, at 8. This is incorrect. As respondent notes, because petitioner’s

90-day period for seeking further direct review in the U.S. Supreme Court would have expired on

October 11, 2015, a Sunday, petitioner would have had until the following Monday, October 12,

2015, to file a petition for writ of certiorari in the U.S. Supreme Court. Dkt. 16, at 8; Fed. R. Civ.

P. 6(a)(1)(C). However, because Monday, October 12, 2015, was a legal holiday (Columbus Day),

petitioner had until Tuesday, October 13, 2015, to file a timely petition for writ of certiorari. Fed.

R. Civ. P. 6(a)(1)(C). Thus, his 90-day period for seeking further direct review expired on October

13, 2015, and his one-year limitation period commenced the next day, October 14, 2015. Fed. R.

Civ. P. 6(a)(1)(A); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (holding that

Fed. R. Civ. P. 6 applies in calculating the AEDPA’s one-year limitation period and concluding

that prisoner’s one-year limitation period “commenced on the day after expiration of the time for

petitioning for certiorari”).

Respondent disagrees and contends petitioner is entitled to statutory tolling for only three

periods when properly filed applications for postconviction relief were pending in state court. Dkt.

16, at 15-20. Respondent further contends that even with the benefit of statutory tolling, the

petition is untimely. Id.

The Court agrees with both contentions. As previously discussed, an application for

postconviction relief is “properly filed” for purposes of statutory tolling only if the petitioner files

it in compliance with applicable state procedural filing requirements. Artuz, 531 U.S. at 8; see

also Habteselassie v. Novak, 209 F.3d 1208, 1212 (10th Cir. 2000) (interpreting “the phrase

‘properly filed’” as used in § 2244(d)(2), “to apply only to filing requirements” that must be met

before the state court accepts an application for filing, rather than affirmative defenses that might

be invoked to argue that a particular claim raised in the application is procedurally barred). As a

result, federal courts “look to state law to determine whether an application is ‘properly filed.’”

Gibson, 232 F.3d at 806. And, if application of a state’s procedural rules requires interpretation

of state law, “[a] state court’s interpretation of its own law is binding on a federal court conducting

habeas review.” Loftis v. Chrisman, 812 F.3d 1268, 1272 (10th Cir. 2016) (alteration in original)

(quoting House v. Hatch, 527 F.3d 1010, 1028 (10th Cir. 2008)). Under federal law, a properly

filed application is “pending” for purposes of tolling under § 2244(d)(2) only for “the time during

which a state prisoner is attempting, through proper use of state court procedures, to exhaust state

court remedies with regard to [the] particular post-conviction application.” Barnett v. Lemaster,

167 F.3d 1321, 1323 (10th Cir. 1999).

Applying these principles, the Court agrees with respondent that petitioner is entitled to

three periods of statutory tolling and that these three periods do not render the instant habeas

petition timely filed.

1. October 14, 2015, through January 3, 2017

First, the one-year limitation period was tolled from October 14, 2015, through January 3,

2017. As previously discussed, petitioner filed his first application for postconviction relief on

August 31, 2015, and that application was pending when his one-year limitation period

commenced on October 14, 2015. Thus, October 14, 2015, was the first day of the statutory tolling

period for his first application for postconviction relief. See Vickers v. Bear, No. CIV 14-528-

RAW-KEW, 2016 WL 1032817, at *2 (E.D. Okla. Mar. 15, 2016) (unpublished) (noting that

postconviction application filed before conviction was final “had no tolling effect until . . . the first

day of the statutory year”).13

The state district court denied petitioner’s first application for postconviction relief on

December 2, 2016. Under Oklahoma law, petitioner had 10 days from that date to file a timely

notice of appeal and 30 days to perfect a postconviction appeal. Rule 5.2(C), Rules of the

Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017); Loftis, 812 F.3d at 1270-71.

Petitioner timely filed a notice of appeal in state district court on December 8, 2016, and timely

filed a petition in error and brief in support in the OCCA on January 3, 2017. But the OCCA

determined, on April 7, 2017, that petitioner failed to properly file his postconviction appeal

because he did not attach to his petition in error a certified copy of the state district court’s order,

as required by Rule 5.2(C)(2). Petitioner is therefore entitled to statutory tolling only from October

14, 2015, through January 3, 2017, the last day he could have properly filed his original

13 The Court cites this unpublished decision as persuasive authority. See Fed. R. Civ. P.

32.1(a); 10th Cir. R. 32.1(A).

postconviction appeal.14 Cf. Gibson, 232 F.3d at 804 (“[R]egardless of whether a petitioner

actually appeals a denial of a post-conviction application, the limitations period is tolled during

the period in which the petitioner could have sought an appeal under state law.”). After this first

tolling period ended, 117 days passed before petitioner tolled his one-year limitation by filing a

second application for postconviction relief, seeking an out-of-time postconviction appeal.

In response to the dismissal motion, petitioner appears to argue that he is entitled to

statutory tolling for the 117 days between January 4, 2017, and April 30, 2017, because (1) he

attached a copy of the state district court’s order with the petition in error he filed on January 3,

2017, and (2) the OCCA ultimately found that petitioner’s failure to perfect his original

postconviction appeal “was due to no fault of his own” on January 12, 2018, when it granted him

leave to file a postconviction appeal out of time. Dkt. 17, at 1-2.15 Petitioner seems to contend he

is therefore entitled to statutory tolling for the entire period from October 14, 2015, through

February 12, 2018, the last day he could have perfected his out-of-time postconviction appeal.

Dkt. 17, at 1-2.

As further discussed below, petitioner is entitled to statutory tolling between May 1, 2017

and February 12, 2018, while his second application for postconviction relief was pending.

However, to the extent petitioner seeks additional statutory tolling of the 117-day period between

the expiration of his deadline to perfect his original postconviction appeal and the date he filed his

14 Respondent contends that petitioner’s 30-day statutory period to perfect a postconviction

appeal from the December 2, 2016 order expired on January 2, 2017, and his AEDPA limitation

period began running the next day, January 3, 2017. Dkt. 16, at 17-18. But because Monday,

January 2, 2017, was a legal holiday (New Year’s Day, observed), petitioner’s 30-day statutory

period expired on Tuesday, January 3, 2017, and his AEDPA limitation period began running on

January 4, 2017. Fed. R. Civ. P. 6(a); Hurst, 322 F.3d at 1260-61.

15 Because it is not entirely clear from petitioner’s response whether he seeks statutory or

equitable tolling for this 117-day period, the Court addresses statutory tolling in this section of the

opinion and equitable tolling, infra, in Section II.C.

second application for postconviction relief seeking an out-of-time postconviction appeal, Gibson

forecloses his argument. Even assuming petitioner properly filed his original postconviction

appeal and the OCCA effectively acknowledged that he did so by granting him leave to file an out-

of-time postconviction appeal, the OCCA’s decision on that point does not transform his first

application for postconviction relief into a properly filed application that was “pending” from the

date it was filed, on August 31, 2015, through February 12, 2018, when the time expired for him

to perfect an out-of-time postconviction appeal. See Gibson, 232 F.3d at 806 (“A state court’s

decision to . . . grant an appeal out of time does not transform all of a petitioner’s state filings into

one ‘properly filed’ application, which essentially ‘relates back’ to a petitioner’s original

application for state post-conviction relief.”). Thus, petitioner’s first period of statutory tolling

ended on January 3, 2017, his one-year limitation period began to run on January 4, 2017, and 117

days passed before petitioner filed his second application for postconviction relief on May 1, 2017.

2. May 1, 2017, through February 12, 2018

Second, petitioner is entitled to statutory tolling from May 1, 2017, through February 12,

2018. As just discussed, the OCCA dismissed petitioner’s original postconviction appeal on April

7, 2017, and petitioner filed a second application for postconviction relief in state district court on

May 1, 2017, seeking leave to file a postconviction appeal out of time. The state district court

recommended an out-of-time postconviction appeal, and, on January 12, 2018, the OCCA granted

petitioner leave to file an out-of-time postconviction appeal. Dkt. 16-12, at 2. Petitioner attempted

to perfect the out-of-time postconviction appeal by filing a petition in error and brief in support on

January 31, 2018, in Case No. PC-2018-105. Dkts. 16-13, 16-14. But the OCCA dismissed the

appeal on May 21, 2018, citing petitioner’s failure to either (1) file a notice of postconviction

appeal, (2) indicate in his petition in error that he had filed a notice of appeal, or (3) provide the

OCCA “with any other proof” that he had filed a notice of postconviction appeal. Dkt. 16-16, at

3. Because the OCCA found that petitioner did not comply with the OCCA’s procedural rules

when he attempted to perfect his out-of-time postconviction appeal, petitioner’s one-year

limitation period was tolled, by statute, only from May 1, 2017, when he filed his second

application for postconviction relief, through February 12, 2018, when the time expired for

petitioner to properly file the out-of-time postconviction appeal.16

Petitioner appears to resist this conclusion by arguing that the OCCA should not have

dismissed his out-of-time postconviction appeal because he filed a notice of appeal on December

8, 2016, to initiate his original postconviction appeal, in Case No. PC-2017-3. Dkt. 17, at 3-5.

Gibson and Loftis appear to foreclose this argument as well. As previously discussed, the OCCA

determined that petitioner failed to perfect his out-of-time postconviction appeal, in Case No. PC-

2018-105, because he did not comply with Rule 5.2(C)(2)’s requirement that he either include a

statement in his petition in error indicating when and where he filed the notice of appeal or provide

a copy of the notice of appeal. Dkt. 16-16, at 3-4. The OCCA also cited Pershall v. State, 400

P.3d 871 (Okla. Crim. App. 2017). Dkt. 16-16, at 3-4. In Pershall, the OCCA held that the filing

of a notice of postconviction appeal is jurisdictional and emphasized “that the filing of the Notice

of Post-Conviction Appeal is essential because it triggers the District Court Clerk’s duty to

assemble the record on appeal, transmit the Notice of Completion of the record, and timely file the

record with the Clerk of [the OCCA].” Pershall, 400 P.3d at 872. Because the OCCA has the

final say on whether a state prisoner seeking relief in state court complied with the OCCA’s own

procedural rules, this Court will not second guess the OCCA’s determination that petitioner failed

16 Petitioner’s 30-day period to perfect his out-of-time postconviction appeal expired on

February 11, 2018, but because that was a Sunday, petitioner had until February 12, 2018, to

perfect his appeal. Fed. R. Civ. P. 6(a)(1)(C).

to comply with those rules when he attempted to perfect his out-of-time postconviction appeal.

Loftis, 812 F.3d at 1272. Accordingly, the Court rejects petitioner’s argument that he is entitled

to statutory tolling beyond February 12, 2018.

Thus, petitioner’s second statutory tolling period ended on February 12, 2018, petitioner’s

one-year limitation period began to run the next day, February 13, 2018, and that limitation period

ran for 156 days before petitioner filed his third application for postconviction relief, on July 20,

2018, again seeking leave to file an out-of-time postconviction appeal.

3. July 20, 2018, through July 1, 2019

Third and finally, it is undisputed that petitioner is eligible for statutory tolling from July

20, 2018, when he filed his third application for postconviction relief in state district court, through

July 1, 2019, when the OCCA affirmed the state district court’s order denying that application.

Petitioner’s one-year limitation period therefore began to run again on July 2, 2019, after

this third period of statutory tolling ended. At that point, 273 days (117 + 156) of his one-year

limitation period had passed, leaving him with 92 days (365 – 273), or until October 2, 2019, to

file a timely federal habeas petition. He did not file the instant petition until January 30, 2020,

nearly four months later.

4. Conclusion

Even with the benefit of statutory tolling, the petition is untimely under § 2244(d)(1)(A).

As a result, unless equitable tolling is warranted, the petition should be dismissed as time-barred.

C. Equitable tolling is warranted under the particular facts of this case.

As respondent points out, petitioner did not seek equitable tolling in his petition. Dkt. 1,

generally. Respondent thus contends that petitioner failed to demonstrate any circumstances that

would warrant equitable tolling. Dkt. 16, at 20-26. Nevertheless, in response to the dismissal

motion, petitioner appears to seek equitable tolling for a portion of the time he spent seeking

postconviction relief and for a 28-day period when his prison facility was locked down due to gang

violence. Dkt. 17.17

As previously stated, 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” him from timely filing a federal habeas petition. Holland, 560 U.S. at

649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Under established precedent in

this circuit, equitable tolling is “a rare remedy to be applied in unusual circumstances.” Al-Yousif,

779 F.3d at 1179; Yang, 525 F.3d at 929. But two cases—Burger v. Scott, 317 F.3d 1133 (10th

Cir. 2003), and Loftis v. Chrisman, 812 F.3d 1268 (10th Cir. 2016)—persuade this Court that the

circumstances of this case warrant this remedy.

In Burger, a federal district court dismissed a petitioner’s 28 U.S.C. § 2241 petition for

writ of habeas corpus as untimely, and the U.S. Court of Appeals for the Tenth Circuit reversed

the dismissal, in part, finding that the district court should have applied equitable tolling. Burger,

317 F.3d at 1134. There, the petitioner attempted to exhaust his federal habeas claim in state court

by filing a state habeas petition. Id. at 1135. The petitioner submitted his state habeas petition to

prison officials on January 7, 2000, but, for reasons unknown, the clerk of the state district court

did not file the petition until over four months later, on May 12, 2000. Id. The petitioner filed a

federal habeas petition only 14 days after the OCCA denied relief, but the federal district court

determined the federal habeas petition was untimely and dismissed the petition as barred by the

17 Respondent further contends that petitioner has not presented a colorable claim of actual

innocence that would support application of Perkins’ equitable exception to excuse his failure to

file a timely petition. Dkt. 16, at 23-26. But the Court finds it unnecessary to address this argument

because the Court finds nothing in the petition or petitioner’s response to the dismissal motion

suggesting that he is asserting an actual-innocence claim, much less a colorable one.

applicable one-year statute of limitations. Burger, 317 F.3d at 1135-38.

The Tenth Circuit agreed with the federal district court that the petitioner was not entitled

to statutory tolling, but recognized that dismissing a “first federal habeas petition is a particularly

serious matter,” and found equitable tolling was warranted. Burger, 317 F.3d at 1141-43

(emphasis in original) (quoting Lonchar v. Thomas, 517 U.S. 314, 324 (1996)). The Tenth Circuit

reasoned, in part, that the four-month delay in filing his state habeas petition was beyond the

petitioner’s control, particularly given “[t]he fact that Oklahoma does not apply a mailbox rule to

initial [state] habeas petitions.” Burger, 317 F.3d at 1143. The Tenth Circuit further reasoned that

“the [U.S.] Supreme Court has applied the doctrine of equitable tolling to extend a federal

limitations period where a claimant has actively pursued his judicial remedies by filing a defective

state pleading during that period.” Id. at 1142. The Tenth Circuit found the facts in Burger

demonstrated that the petitioner diligently pursued his federal habeas claims and that he had good

reason to “believe that his state petition was sufficient to begin the State’s process of reviewing

his claim, thus tolling the federal statute” of limitations. Id. at 1141-43. And it found those facts

were readily distinguishable from the facts in earlier cases where the Tenth Circuit “has generally

declined to apply equitable tolling when it is facially clear from the timing of the state and federal

petitions that the petitioner did not diligently pursue his claims.” Id. at 1141.

In Loftis, the Tenth Circuit confronted a different set of facts but applied Burger’s

reasoning to conclude that a habeas petitioner was entitled to equitable tolling of the one-year

limitation period. There, the petitioner asserted federal habeas claims in state court through a

direct appeal and an application for postconviction relief. Loftis, 812 F.3d at 1270. But he did not

receive a copy of the state district court’s order denying his application for postconviction relief

until after the time expired for him to file a timely notice of postconviction appeal. Id. at 1270-71.

When the petitioner learned he had missed the filing deadline, he filed a motion in state district

court seeking a 10-day extension to file the notice of appeal, and the state district court granted the

motion. Loftis, 812 F.3d at 1271. The petitioner filed a notice of appeal within 10 days of the state

district court’s order granting the extension and filed a petition in error and brief in support in the

OCCA 15 days after filing his notice of appeal. Id. About one year later, the OCCA dismissed

the petitioner’s postconviction appeal as untimely, reasoning that the state district court had no

authority to extend the time for filing a notice of postconviction appeal. Id. The petitioner filed a

federal habeas petition about two months after the OCCA dismissed his appeal, but the federal

district court dismissed the federal habeas petition, finding that the petition was untimely and that

the petitioner was not entitled to statutory or equitable tolling. Id.

As it did in Burger, the Tenth Circuit in Loftis agreed with the federal district court’s ruling

as to statutory tolling but disagreed with the court’s refusal to apply equitable tolling. The Tenth

Circuit reasoned that, like the petitioner in Burger, the petitioner in Loftis “did not sleep on his

federal rights, but rather diligently pursued his claims by filing the documents which he believed

would be sufficient to ensure state court review of his habeas claims.” Loftis, 812 F.3d at 1273.

The Tenth Circuit further reasoned that after the petitioner learned he had missed the deadline for

filing a notice of appeal, the “petitioner made reasonable, diligent efforts to comply with

procedural rules which provided no clear guidance for the unusual circumstances in which, through

no fault of his own, he was situated, and where the state district court itself caused him to believe

that his efforts had been sufficient to ensure state review of his habeas claims.” Id. at 1275. In

addition, the Tenth Circuit reasoned that equitable tolling was warranted because “the untimeliness

of [the petitioner’s] state post-conviction appeal was caused by the unique procedural impediments

stemming from Oklahoma’s decision to allow only short filing deadlines for appealing the denial

of post-conviction relief and to start the clock running on these deadlines at the time of issuance

instead of the time when an incarcerated petitioner actually receives the court’s order through the

prison mail system.” Loftis, 812 F.3d at 1275. Ultimately, the Tenth Circuit concluded in Loftis

that it would be inequitable to reject [the petitioner’s] federal habeas petition as

untimely under the circumstances of [the] case: (1) where he was denied the ability

to file a timely notice of appeal in the state post-conviction proceedings either by a

failure in the mail system or by the state district court’s failure to comply with its

mandatory duty to promptly mail him a copy of the order denying relief, (2) the

district court attempted to rectify this apparent mistake by granting him an

extension of time in which to file his appeal, and (3) the OCCA concluded—after

sitting on the case for a year—that the district court’s decision had no legal effect

and that [the petitioner] must be denied all relief because he should have known to

simply ignore the apparently mandatory requirement to file a notice of appeal

before filing his appellate documents.

812 F.3d at 1275-76.

Applying principles drawn from Burger and Loftis, and for the reasons stated below, the

Court finds the particular facts of this case warrant equitable tolling of two time periods which,

combined with the three periods of statutory tolling previously discussed, are sufficient to render

petitioner’s federal habeas petition timely filed.

1. January 4, 2017, through April 7, 2017

First, equitable tolling is warranted from January 4, 2017, through April 7, 2017. As

discussed earlier in this opinion, see supra, Section II.B.1, petitioner appears to seek equitable

tolling for the 117 days between January 4, 2017, and April 30, 2017. Dkt. 17, at 1-2. He argues

that time should not count against him because the OCCA ultimately concluded that he properly

filed his original postconviction appeal on January 3, 2017, when the OCCA granted him leave to

file an out-of-time postconviction appeal. Dkt. 17, at 1-2. Thus, petitioner argues, the delay

between January 4, 2017, and April 30, 2017 (the day before he filed his second application for

postconviction relief seeking a postconviction appeal out of time), should be attributed to the State

and the earliest his one-year limitation period began to run was February 13, 2018, the day after

his second period of statutory tolling ended. Id.

On the record presented, the Court agrees, in part. While Gibson forecloses petitioner’s

argument that he is entitled to statutory tolling of this 117-day period, Loftis and Burger support

his request for equitable tolling of at least 94 days of this period. Admittedly, the facts of the

instant case differ from those in Burger and Loftis, but the Court finds the reasoning in both cases

applies because it is clear from the record (1) that petitioner diligently pursued his federal habeas

claims as he attempted to obtain postconviction relief in state court and (2) that the state district

court’s inaction impeded his efforts to perfect his original postconviction appeal.

As previously discussed, petitioner filed a timely direct appeal and filed his first application

for postconviction relief on August 31, 2015, just over a month after the OCCA issued its decision

affirming his conviction and sentence on direct appeal. When petitioner filed his first application

for postconviction relief in state district court, he contemporaneously filed motions requesting a

hearing, trial transcripts and additional time to file a brief in support of his application. The state

district court took no action on petitioner’s motions or his application for postconviction relief for

one year, and summarily denied the motions and application only after petitioner twice sought

mandamus relief from the OCCA. The impact of this one-year delay is mitigated by applying

statutory tolling for the time petitioner’s application was pending in state district court. But the

record in this case shows a pattern of delay on the part of the state district court that frustrated

petitioner’s efforts to exhaust available state remedies as to the claims he raised in postconviction

proceedings.

After the OCCA directed the state district court to file a response in petitioner’s second

mandamus action, the state district court summarily denied petitioner’s motions and his first

application for postconviction relief on December 2, 2016. Only six days later, on December 8,

2016, petitioner filed a timely notice of postconviction appeal. The state district court, however,

failed to comply with its mandatory duty to prepare and submit to the OCCA a record on appeal.

See Rule 5.3(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017)

(providing that “the Clerk of the District Court shall compile two certified copies of the record on

appeal as defined by Rule 5.2(C)(6), and ensure the Notice of Completion of record is filed with

[the OCCA] within thirty (30) days of the filing of the Notice of Post-conviction appeal, unless an

extension is requested by the court clerk and granted by [the OCCA]”). The docket sheet from

petitioner’s Washington County District Court case reflects that after the state district court denied

petitioner’s application for postconviction relief, on December 2, 2016, the clerk of the district

court (1) received petitioner’s notice of postconviction appeal on December 8, 2016, (2) docketed

petitioner’s notice of postconviction appeal on December 13, 2016, (3) received the OCCA’s order

dismissing petitioner’s second mandamus action on December 19, 2016, and (4) received a

certificate of appeal from the OCCA on January 6, 2017, indicating that the OCCA had docketed

petitioner’s postconviction appeal in Case No. PC-2017-3. Dkt. 16-15, at 14. Yet, not one of these

events, or even the combination of these events, spurred the state district court to comply with its

obligation to prepare and submit a record on appeal.

Nevertheless, likely believing that the state district court would comply with Rule 5.3(B),

petitioner timely filed a petition in error and brief in support in the OCCA, on January 3, 2017, to

perfect his original postconviction appeal. And petitioner states in his sworn affidavit that he

attached a certified copy of the state district court’s order, as required by Rule 5.2(C)(2). On these

facts, the Court finds that petitioner “diligently pursued his claims by filing the documents which

he believed would be sufficient to ensure state court review of his habeas claims.” Loftis, 812 F.3d

at 1273; see also Rules 2.1(E) and 5.2(C), Rules of the Oklahoma Court of Criminal Appeals, Title

22, Ch. 18, App. (2017). And, as in Loftis, petitioner’s failure to perfect his original postconviction

appeal rests, in large part, on the state district court’s own failure to comply with the OCCA’s

rules—namely, its mandatory duty under Rule 5.3(B) to prepare and submit a record for appeal

within 30 days of the date petitioner filed his notice of postconviction appeal.

True, when the OCCA dismissed petitioner’s original postconviction appeal it cited

petitioner’s failure to attach a certified copy of the state district court’s order. But it also cited the

lack of a sufficient appellate record. Even assuming petitioner did fail to attach a certified copy of

the state district court’s order, a fact he disputes, that merely rendered his pleading defective. And

Gibson recognized that equitable tolling may be warranted if a habeas petitioner files a timely but

defective pleading in state court when he is diligently attempting to comply with state procedures

for exhausting his federal habeas claims. Gibson, 232 F.3d at 808. Moreover, as petitioner appears

to contend, the OCCA would have had access to a certified copy of the state district court’s

December 2, 2016 order if the state district court clerk had complied with Rule 5.3(B). Dkt. 17,

at 1-2; see Rule 5.2(C)(6)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,

App. (2017) (listing state district court order as one component of appeal record); cf. Johnson v.

Champion, 288 F.3d 1215, 1228 (10th Cir. 2002) (concluding that a district court clerk’s failure to

comply with Rule 5.3(B), despite the habeas petitioner’s filing of a timely notice of appeal,

established cause for the petitioner’s procedural default of a habeas claim). In Johnson, the Tenth

Circuit reasoned, in part, that, “[h]ad the clerk fulfilled this statutory responsibility, the OCCA

would have been in possession of a certified copy of the state district court’s order at the time it

ruled on [the petitioner’s] appeal.” 288 F.3d at 1228. Further, while the Tenth Circuit

acknowledged in Johnson that “there still would not have been precise compliance with Rule

5.2(C) (in that a certified copy of the order would not have been physically attached to Johnson’s

petition in error), there would have been practical compliance (in that a certified copy of the

decision appealed would have been available to the OCCA).” Id. Similarly here, if not for the

state district court’s failure to comply with Rule 5.3(B), the OCCA would have had not only a

certified copy of the state district court’s December 2, 2016 order, but also a sufficient record on

which it could consider petitioner’s original postconviction appeal. Finally, as in Loftis,

petitioner’s failure to properly perfect his original postconviction appeal stems from a “unique

procedural impediment[]” that requires both the appellant and the state district court clerk to

provide the OCCA with a certified copy of the state district court’s order to be appealed.

For these reasons, and under the particular circumstances of this case, the Court finds that

equity favors tolling the 94-day period between January 4, 2017, the date petitioner reasonably

believed he had done all that he was required to do under the OCCA’s rules to perfect his original

postconviction appeal, and April 7, 2017, the date the OCCA dismissed his original postconviction

appeal.

2. February 13, 2018, through May 21, 2018

Second, equitable tolling is warranted from February 13, 2018, through May 21, 2018. As

previously discussed, on January 12, 2018, the OCCA granted petitioner leave to file a

postconviction appeal out of time, petitioner attempted to perfect the appeal on January 31, 2018,

and the OCCA dismissed the appeal on May 21, 2018, finding petitioner failed to comply with the

OCCA’s procedural rules regarding the filing of a notice of postconviction appeal. Though not

entirely clear, petitioner appears to seek equitable tolling from February 13, 2018, the day after his

time expired to perfect his out-of-time postconviction appeal, through July 1, 2019, the date the

OCCA affirmed the denial of his third application for postconviction relief. Dkt. 17, at 3-5.

Petitioner appears to argue that this time should not count against him because the OCCA

improperly dismissed his out-of-time postconviction appeal, on May 21, 2018, by overlooking

evidence that he filed a notice of postconviction appeal on December 8, 2016. Dkt. 17, at 3-5.

For two reasons, the Court finds petitioner is entitled to equitable tolling for the time he

could have reasonably believed he had taken all necessary steps to perfect his out-of-time

postconviction appeal. First, petitioner continued to diligently pursue his federal claims as he

attempted to perfect his out-of-time postconviction appeal. After the OCCA dismissed his original

postconviction appeal on April 7, 2017, petitioner promptly filed an application for postconviction

relief in state district court, on May 1, 2017, seeking leave to file an out-of-time postconviction

appeal, as required under Oklahoma law. And (again) he sought mandamus relief from the OCCA

when the state district court took no action on his application. After the OCCA ordered the state

district court to file a response in petitioner’s mandamus action, the state district court issued an

order, on October 24, 2017, recommending that petitioner be permitted to file a postconviction

appeal out of time. Shortly thereafter, on November 8, 2017, and in accordance with Oklahoma

law, petitioner filed an application in the OCCA, seeking leave to file a postconviction appeal out

of time. Dkt. 16-11; see Gibson, 232 F.3d at 806. Finally, after the OCCA issued its order on

January 12, 2018, authorizing the out-of-time postconviction appeal, petitioner promptly filed a

petition in error and brief in support in the OCCA on January 31, 2018. These facts, like the facts

in Loftis and Burger, show that petitioner “did not sleep on his federal rights, but rather diligently

pursued his claims” as he attempted to perfect his postconviction appeal out of time. Loftis, 812

F.3d at 1273.

Second, petitioner timely filed a defective pleading in his attempt to perfect his out-of-time

postconviction appeal and, under the facts of this case, until the OCCA dismissed the appeal, it

was reasonable for petitioner to believe that he had done all that was required by the OCCA’s

procedural rules to perfect that appeal. When the OCCA granted petitioner leave to file a

postconviction appeal out of time, the OCCA directed petitioner to “lodge the appeal in accordance

with Rules 2.1(E)(3) and 5.2(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.

18, App. (2017).” Dkt. 16-12, at 2. The plain language of the first rule told petitioner that “the

documents required to be filed in [the OCCA] for perfecting that post-conviction appeal shall be

filed by the petitioner within thirty (30) days of the order granting an appeal out of time in

accordance with Rule 5.2(C).” Rule 2.1(E)(3), Rules of the Oklahoma Court of Criminal Appeals,

Title 22, Ch. 18, App. (2017). The second rule provided, in relevant part,

(1) The party desiring to appeal from the final order of the District Court under

Section V of these rules MUST file a Notice of Post-Conviction Appeal with the

Clerk of the District Court within ten (10) days from the date the order is filed in

the District Court. . ..

(2) A petition in error and supporting brief, WITH A CERTIFIED COPY OF THE

ORDER ATTACHED must be filed with the Clerk of this Court. The petition in

error shall state the date and in what District Court the Notice of Post-Conviction

Appeal was filed. If the post conviction appeal arises from a . . . regular felony

conviction, the required documents must be filed within thirty (30) days from the

date the final order of the District Court is filed with the Clerk of the District Court.

. ..

Rule 5.2(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).

Turning back to the OCCA’s order, the OCCA reiterated that “[t]he Petition in Error, supporting

brief, and a certified copy of the District Court Order must be filed with this Court within thirty

(30) days from the date of this Order as required by Rule 5.2(C),” and that “[t]he Petition in Error

shall reference this Order granting Petitioner a post-conviction appeal out of time.” Dkt. 16-12, at

2.

Petitioner substantially complied with the cited rules and the OCCA’s directions. First, he

filed a petition in error and brief in support in the OCCA, in Case No. PC-2018-105, on January

31, 2018, well within 30 days of the OCCA’s January 12, 2018 order granting him leave to file a

postconviction appeal out of time. Dkts. 16-13, 16-14. And, with his supporting brief, petitioner

submitted certified copies of the state district court’s December 2, 2016 order denying his first

application for postconviction relief (i.e., the order for which he sought appellate review) and the

state district court’s October 24, 2017 order recommending an out-of-time postconviction appeal.

Dkt. 16-14, at 12-14, 17-20. And, it would have been reasonable for petitioner to believe that he

complied with the plain language of Rule 5.2(C)(1) because he filed a notice of postconviction

appeal on December 8, 2016, less than 10 days after the state district court denied his first

application for postconviction relief on December 2, 2016. But, as petitioner candidly admits, he

did not precisely comply with Rule 5.2(C)(2) because he failed to either attach a copy of his

December 8, 2016 notice of appeal or expressly state within his petition in error the date he filed

that notice of appeal. Dkt. 17, at 3. As a result, the OCCA dismissed petitioner’s out-of-time

postconviction appeal on May 21, 2018, citing his failure to comply with Rule 5.2(C)(2). Dkt. 16-

6, at 3.

But the OCCA further stated in its order that petitioner failed to provide the OCCA “with

any other proof” that he had filed a notice of postconviction appeal. Dkt. 16-16, at 3. More

specifically, the OCCA stated,

Contrary to the requirements of Rule 5.2(C)(2), there is no statement within

Petitioner’s Petition in Error nor his brief that he filed a Notice of Post-Conviction

Appeal. If Petitioner nonetheless did file a Notice of Post-Conviction Appeal, he

has not provided this Court with a copy of that document or with any other proof

of its filing. Moreover, this Court has not received a post-conviction appeal record

nor any Notice of Completion stating that such an appeal record has been prepared.

As occurred in the Pershall matter, Petitioner was granted an out-of-time post-

conviction appeal and thereupon was told to lodge that appeal in accordance with

Rule 5.2(C). Robinson at 1; Pershall, ¶ 7, 400 P.3d at 873. It does not appear,

however, that Petitioner has complied with Rule 5.2(C)’s requirements concerning

the Notice of Post-Conviction Appeal.

Without an appeal record, this Court cannot reliably determine if the District Court

erred in denying Petitioner’s post-conviction application. ‘If a defendant desires to

bring a case here upon appeal, he must at least bring up enough of the proceedings

of the lower court to enable this court to pass intelligently upon the questions

presented for decision.’ O’Neal v. State, 1970 OK CR 24, ¶ 11, 468 P.2d 59, 62-

63. ‘It is the burden of the party urging error to present to this Court a sufficient

record upon which this Court may determine the issue raised. Failure to do so

waives the alleged error.’ Boyd v. State, 1987 OK CR 211, ¶ 11, 743 P.2d 674,

676.

Accordingly, Petitioner was required to file a Notice of Post-Conviction Appeal

advising the District Court Clerk of his intended appeal of [the state district court’s]

final order filed December 2, 2016. By all appearances, Petitioner has failed to do

so. Consequently, his Petition in Error and brief should be dismissed. See Pershall,

¶ 10, 400 P.3d at 873.

Dkt. 16-16, at 3-4 (emphasis added).

As petitioner contends, the OCCA seemingly overlooked “other proof” in the state-court

record that petitioner had, in fact, filed a notice of postconviction appeal. Dkt. 17, at 3-4. As

previously discussed, petitioner submitted with his supporting brief, filed in the OCCA on January

31, 2018, a copy of the state district court’s October 24, 2017 order recommending an out-of-time

postconviction appeal. And that order expressly stated that petitioner filed a notice of

postconviction appeal on December 8, 2016, in Washington County District Court. Dkt. 16-14, at

18. Accordingly, as in Johnson, the record in this case shows that even if petitioner did not

technically comply with Rule 5.2(C)(2), language from the OCCA’s order dismissing his out-of-

time postconviction appeal arguably suggests that the OCCA might not have dismissed his appeal

had the OCCA recognized that petitioner timely filed a notice of postconviction appeal in the state

district court and, further, that the state district court failed to prepare a record on appeal at that

time. Dkt. 16-16, at 3; see Johnson, 288 F.3d at 1228. And, as petitioner appears to contend, had

the state district court complied with Rule 5.3(C) by submitting a record on appeal with petitioner’s

original postconviction appeal, that record would have included a copy of petitioner’s December

8, 2016 notice of postconviction appeal. See Rule 5.2(C)(6)(f), Rules of the Oklahoma Court of

Criminal Appeals, Title 22, Ch. 18, App. (2018) (listing notice of appeal as one component of

record on appeal).18

In sum, petitioner diligently attempted to obtain review of his federal claims when he

attempted to perfect his out-of-time postconviction appeal but he timely filed a defective pleading

by failing to state—within his petition in error—when and where he filed his notice of

postconviction appeal. On the record presented, it is clear that the OCCA overlooked evidence in

the state court record showing that petitioner did, in fact, timely file a notice of postconviction

appeal. The Court therefore finds that equity favors tolling the 98-day period from February 13,

2018, when it would have been reasonable for petitioner to believe he had done all he was required

to do to perfect his out-of-time postconviction appeal, and May 21, 2018, when the OCCA

dismissed that appeal.

3. Conclusion

With the benefit of equitable tolling for the two periods just discussed, and the previously

discussed periods of statutory tolling, the instant petition is timely. As a reminder, petitioner’s

one-year limitation period commenced on October 13, 2015, and was statutorily tolled until

January 3, 2017, the last day petitioner could have properly filed his original postconviction appeal.

With the benefit of equitable tolling for the 94-day period from January 4, 2017, through April 7,

18 Ironically, the OCCA blamed petitioner for failing to “trigger[] the District Court Clerk’s

duty to assemble the record on appeal, transmit the Notice of Completion of the Record, and timely

file the record with the Clerk of this Court” when it is clear from the publicly-available docket

sheet in petitioner’s underlying criminal case that he did so when he attempted to perfect his

original postconviction appeal and that the state district court failed to comply with its own duty

to prepare and submit the record on appeal. Dkt. 16-16, at 3 (quoting Pershall v. State, 400 P.3d

871, 872 (Okla. Crim. App. 2017)). As discussed in this opinion, the state district court’s failure

to comply with the OCCA’s rules resulted in petitioner’s unsuccessful four-year quest to obtain

review of the claims he raised in his first application for postconviction relief. It hardly seems

equitable to require petitioner’s strict compliance with the OCCA’s rules when the state district

court also failed to comply with those rules.

2017, only 23 days of petitioner’s one-year limitation period for filing a federal habeas petition

passed, between April 7, 2017, and April 30, 2017, before petitioner filed a second application for

postconviction relief in state district court on May 1, 2017. Petitioner’s one-year limitation period

was then tolled by statute from May 1, 2017, through February 12, 2018, when the time expired

for him to properly file a postconviction appeal out of time. Thus, as of February 13, 2018,

petitioner had 342 days (365 – 23) to file a timely federal habeas petition.

With the benefit of equitable tolling for the 98-day period between February 13, 2018, and

May 21, 2018, petitioner’s one-year limitation period began to run again on May 22, 2018, and

ran for an additional 59 days before it was tolled by statute for a third time on July 20, 2018.

Petitioner’s third statutory tolling period ended on July 1, 2019. Thus, as of July 2, 2019, petitioner

had 283 days (342 – 59) remaining to file a timely federal habeas petition. Because petitioner filed

the instant federal habeas petition only 213 days later, on January 30, 2020, the petition is timely

through the combined benefit of statutory and equitable tolling.19

III. Conclusion

Based on the foregoing analysis, the Court concludes that with the benefit of statutory and

equitable tolling, petitioner timely filed the instant federal habeas petition. The Court therefore

denies respondent’s dismissal motion. No later than 30 days after the entry of this opinion and

order, respondent shall file a response to the allegations in the petition, in accordance with Rule 5,

Rules Governing Section 2254 Cases in the United States District Courts, and shall submit any

19 Based on this conclusion, the Court finds it unnecessary to consider petitioner’s

argument that he is entitled to equitable tolling for a 28-day statewide prison lock down. Dkt. 17,

at 3.

additional portions of the state-court record that are necessary to adjudicate petitioner’s claims.20

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. The Clerk of Court shall note the substitution of Rick Whitten, in place of Jeorld Braggs,

as party respondent.

2. Respondent’s motion to dismiss (Dkt. 15) is denied.

3. No later than 30 days after the entry of this opinion and order, respondent shall file a

response to the allegations in the petition, in accordance with Rule 5, Rules Governing

Section 2254 Cases in the United States District Courts, and shall submit any additional

portions of the state-court record that are necessary to adjudicate petitioner’s claims.

4. Petitioner may, but is not required to, file a reply brief no later than 30 days after the

date respondent files the response.

DATED this 17th day of December 2020.

20 As respondent notes in the dismissal motion, petitioner’s ground five claim, asserting

ineffective assistance of appellate counsel, is unexhausted. Dkt. 16, at 11 n.4. As provided in

Habeas Rule 5, respondent is free to argue in his response that the failure to exhaust bars habeas

relief as to ground five. But the Court is not inclined to dismiss the entire petition given that four

of petitioner’s claims are exhausted and, at this point, it appears petitioner’s ground five claim

would be subject to an anticipatory procedural bar. See Grant v. Royal, 886 F.3d 874, 891-92

(10th Cir. 2018) (discussing exhaustion and application of anticipatory procedural bar doctrine).