Pethel v. Crow

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

JOEL SHANE PETHEL, )

)

Petitioner, )

)

v. ) Case No. 20-CV-0379-JED-CDL

)

SCOTT CROW, )

)

Respondent. )

OPINION AND ORDER

Petitioner Joel Shane Pethel, a state inmate appearing pro se,1 brings this federal habeas

action to challenge his state custody under the judgment and sentence entered against him in the

District Court of Tulsa County, Case No. CF-2001-1098. Respondent Scott Crow moves to

dismiss Pethel’s 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1), alleging that Pethel

failed to file the petition within 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations. Having

considered the petition, Crow’s motion to dismiss (Doc. 9) and brief in support (Doc. 10), and

Pethel’s response (Doc. 14), the Court finds that the petition was not timely filed. The Court

therefore grants Crow’s motion and dismisses the petition, with prejudice, as barred by

§ 2244(d)(1)’s one-year statute of limitations.

I. Factual and procedural background

In the early morning hours of February 18, 2001, Harry and Teresa Hye,

residents of Glenpool, Oklahoma, were shot to death and their house burned to the

ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and

managed to escape the burning house. Tackett soon identified two perpetrators:

her former boyfriend, Michael Browning, and another man named Shane Pethel.

1 Because Pethel appears pro se, the Court liberally construes his pleadings. Gallagher v.

Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).

Browning v. Trammell, 717 F.3d 1092, 1095 (10th Cir. 2013).2 On February 23, 2001, the State

of Oklahoma charged Pethel and Browning with two counts of first-degree murder, shooting with

intent to kill, first-degree arson, and three counts of robbery with a firearm. Doc. 10-2, at 6-9. The

State sought the death penalty as to both defendants, and the trial court severed their cases for trial.

Doc. 10-2, at 26-30.

Pretrial proceedings in th[e criminal] case took nearly two years. About halfway

through that process, Tackett’s attorney (for unknown reasons) faxed two

psychiatric reports to the prosecution.

The first report, dated October 29, 2001, summarized a psychiatrist’s conclusions

after five recent visits with Tackett beginning on October 4, 2001—about eight

months after the crime. According to the report, Tackett displayed “magical

thinking” and a “blurring of reality and fantasy.”

The second report, dated November 26, 2001, contained even more disturbing

information. It described Tackett as manipulative, grandiose, egocentric, and stated

that she typically projected blame onto others. The report noted memory deficits

as well. It described Tackett as a “code type ... rarely seen except in inpatient

facilities.” Most strikingly, according to the report, “An assaultive, combative, or

even homicidal potential must be carefully considered ” (emphasis in original).

When the prosecution received these reports, it revealed their existence but not their

contents to the defense.

Browning, 717 F.3d at 1095 (footnote omitted). Before trial, Pethel and Browning each filed a

separate motion to compel the State to produce Tackett’s mental health records. Doc. 10-2, at 25,

27; Doc. 10-3, at 3. The trial court denied Browning’s motion on April 25, 2002, and ordered

Tackett’s mental health records sealed. Doc. 10-3, at 3. It is not clear if the trial court issued a

separate ruling on Pethel’s motion to compel, but Pethel’s trial counsel believes the trial court also

denied Pethel’s motion. Doc. 10-3, at 3; see also Doc. 1, Pet., at 25-26 (Tyner Aff.).

2 Both parties refer in their pleadings to decisions involving Pethel’s co-defendant, Michael

Browning, namely, Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013), and Browning v.

Workman, No. 07-CV-16-TCK-PJC, 2011 WL 2604744 (N.D. Okla. 2011). Both decisions are

also included in the record (Doc. 10-6) as Pethel filed them with his postconviction appeal.

Browning’s jury trial began in January 2003. Doc. 10-2, at 39; Doc. 10-3, at 3. Tackett

testified at trial as the State’s primary witness, and the jury found Browning guilty as to two counts

of first-degree murder (counts one and two), shooting with intent to kill (count three), first-degree

arson (count four) and robbery with a firearm (count five), and the trial court dismissed two

robbery charges (counts six and seven). Doc. 10-2, at 8, 39. The jury recommended life sentences

as to the convictions in counts one, two , three, and five, and a sentence of 35 years’ imprisonment

as to count four. Doc. 10-2, at 39-40. On February 7, 2003, following a separate penalty phase,

the jury recommended the death penalty as to each of Browning’s murder convictions. Doc. 10-

2, at 41. The trial court imposed two death sentences (counts one and two), two life sentences

(counts three and five), and 35 years’ imprisonment (count four). Doc. 10-6, at 17.

On February 11, 2003, four days after the jury recommended the death penalty for

Browning, Pethel waived his right to a trial and pleaded guilty as to two counts of first-degree

murder (counts one and two), shooting with intent to kill (count three), first-degree arson (count

four), and robbery with a firearm (count five), and, on the State’s request, the trial court dismissed

two robbery charges (counts six and seven). Doc. 10-2, at 42. Pursuant to the plea agreement, the

trial court imposed two life sentences, without the possibility of parole, (counts one and two), two

life sentences (counts three and five), and 35 years’ imprisonment (count four), with all sentences

to be served consecutively. Doc. 10-2, at 42. Pethel did not move to withdraw his guilty plea or

otherwise appeal his convictions and sentences. Doc. 1, Pet., at 16; Doc. 10-7, at 2.

Browning, however, did challenge his convictions and sentences. On direct appeal, the

Oklahoma Court of Appeals (OCCA) affirmed Browning’s convictions and sentences as to counts

one, two and three, but dismissed his convictions as to counts four and five. Doc. 10-6, at 17; see

Browning v. State, 134 P.3d 816 (Okla. Crim. App. 2006). Browning twice sought postconviction

relief, and the OCCA denied relief both times. Doc. 10-6, at 17-18. Browning then sought federal

habeas relief. In an opinion and order filed June 30, 2011, the federal district court granted a

conditional writ of habeas corpus on Browning’s claim that the State violated his Fourteenth

Amendment right to due process, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), when

it failed to produce Tackett’s mental health records before trial. Doc. 10-6, at 19, 26; see Browning

v. Workman, No. 07-CV-16-TCK-PJC, 2011 WL 2604744, at *3, 9 (N.D. Okla. 2011). The federal

district court concluded that the sealed mental health records contained evidence that was “clearly

both favorable impeachment and exculpatory evidence.” Browning, 2011 WL 2604744, at *7.3

The United States Court of Appeals for the Tenth Circuit affirmed the federal district

court’s order in a published opinion filed May 6, 2013. Browning, 717 F.3d at 1094, 1108. The

Tenth Circuit found it was “beyond question that [Tackett’s mental health records] contain both

exculpatory and impeaching evidence,” found that the evidence was material, and concluded that

Brady thus required the State to disclose the contents of those records before trial. Browning, 717

F.3d at 1105-08. Based on the Tenth Circuit’s decision, Browning’s convictions for first-degree

murder and shooting with intent to kill were vacated and his case was set for a new trial. Doc. 10-

2, at 64.

Browning’s new trial commenced five years later, on May 7, 2018. Doc. 10-2, at 93. In

late April 2018, before the new trial, the State obtained a writ of habeas corpus ad testificandum

to secure Pethel’s appearance at trial to testify as a State’s witness. Doc. 10-2, at 92. Browning’s

new trial ended with a hung jury. Doc. 10-2, at 94. Following the trial, Pethel was returned to

prison on May 14, 2018. Doc. 10-2, at 94. Over one year later, on August 12, 2019, Browning

3 The federal district court noted that it reviewed Tackett’s sealed mental health records

and that “[n]either Browning nor his present or previous counsel had viewed these records at the

time he filed his Habeas Petition.” Browning, 2011 WL 2604744, at *4.

waived his right to a jury trial and, pursuant to a plea agreement with the State, pleaded no contest

to two counts of second-degree murder (counts one and two) and shooting with intent to kill (count

three). Doc. 10-2, at 102. The trial court sentenced Browning to 25 years’ imprisonment for each

conviction, with credit for time served, and ordered the sentences to be served concurrently. Doc.

10-2, at 102.

Meanwhile, on September 13, 2018, Pethel filed an application for postconviction relief in

state district court, seeking leave to withdraw his guilty plea and file a certiorari appeal out of time,

and an application for an evidentiary hearing. Doc. 10-3, at 1, 10; Doc. 10-4, at 1. Pethel alleged

his request to withdraw his guilty plea was “based on newly discovered evidence which was

previously unavailable to him,” namely, Tackett’s mental health records, “because the evidence

had been sealed by the trial court.” Doc. 10-3, at 1 (italics and underlining in original). He further

alleged that because he was denied access to this evidence, his pleas were not knowing, voluntary

and intelligent, that he was denied access to this evidence through no fault of his own, and that he

was entitled to postconviction relief because the “[t]he State’s refusal to turn over, and the Trial

Court’s refusal to order disclosure of Cenessa Tackett’s mental health records, which were in the

possession of the prosecution, deprived Pethel of his constitutional rights to access exculpatory

evidence under the Due Process Clause of the Fourteenth Amendment and Brady v. Maryland, 373

U.S. 83.” Doc. 10-3, at 1-2, 5 (full capitalization omitted).

The state district court denied Pethel’s request for an evidentiary hearing, declined to

recommend an out-of-time certiorari appeal, and denied his application for postconviction relief

on October 25, 2018. Doc. 10-5, at 1, 3. The state district court found that Pethel failed to show

he was denied his right to appeal through no fault of his own, and further found that the State was

not required to provide impeachment evidence before entering plea negotiations with Pethel or

before he pleaded guilty. Doc. 10-5, at 3. Pethel filed a postconviction appeal, and the OCCA

remanded the case for an evidentiary hearing, and a hearing was held on June 18, 2019. Doc. 10-

7, OCCA Order, at 2. On October 4, 2019, the OCCA affirmed the denial of Pethel’s request for

an out-of-time appeal. Doc. 10-7, OCCA Order at 1, 4. Like the state district court, the OCCA

found that Pethel failed to establish he was denied an appeal through no fault of his own. Doc. 10-

7, OCCA Order, at 3. The OCCA alternatively rejected the Brady claim on the merits, stating,

“[c]ontrary to [Pethel’s] claim, the Constitution does not require the disclosure of witness

impeachment information prior to the entry of a plea of guilty. United States v. Ruiz, 536 U.S.

622, 629, 122 S. Ct. 2450, 2455, 153 L. Ed. 2d 586 (2002).” Doc. 10-7, OCCA Order, at 3.

Pethel filed the instant federal habeas petition on July 15, 2020. Doc. 1, Pet., at 1, 15.4 He

identifies one ground for relief, claiming he was denied his Fourteenth Amendment right to due

process, as interpreted in Brady, when the State failed to disclose Tackett’s mental health records

before he entered his guilty plea. Doc. 1, Pet., at 5. In support of this claim, Pethel alleges the

[p]rosecution was in possession of mental health records of Cenessa Tackett, who

was the key witness and the only thing linking Pethel to the crimes or crime scene.

Pethel’s defense attornies [sic] filed a motion to compel and the trial courts denied

and sealed the records months before any plea negotiations between Pethel and the

State. His co-defendant was sentenced to two death sentences four days before

Pethel entered guilty pleas, and co-defendant had convictions overturned due to the

later disclosure of mental health records. Had Pethel had access to the mental health

records he would not have entered into plea negotiations with the State, rather he

would have proceeded to trial.

Doc. 1, Pet., at 5. Pethel further alleges he did not raise this issue through a timely certiorari appeal

4 The Clerk of Court received the petition on July 31, 2020. Doc. 1, Pet., at 1. But Pethel

declares, under penalty of perjury, that he placed the petition in the prison’s legal mailing system,

with the correct postage affixed, on July 15, 2020. Doc. 1, Pet., at 15. Applying the prison mailbox

rule, the Court thus deems the petition filed on July 15, 2020. See Price v. Philpot, 420 F.3d 1158,

1165 (10th Cir. 2005); Rule 3(d), Rules Governing Section 2254 Cases in the United States District

Courts.

because trial counsel informed him that he could not appeal because he “took a plea agreement.”

Doc. 1, Pet., at 6. In his request for relief, Pethel asks to be “[r]e-sentenced same as Michael A.

Browning, or at the least allowed to withdraw [his] plea.” Doc. 1, Pet., at 15.

II. Discussion

Crow moves to dismiss the petition as barred by the applicable statute of limitations. Docs.

9, 10. 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 four dates, only three of which are relevant here: “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), “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,” id. § 2244(d)(1)(B), and

“the date on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence,” id. § 2244(d)(1)(D).5

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.” 28 U.S.C. § 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

5 The limitation period may also begin on “the date on which the constitutional right

asserted was initially recognized by the Supreme Court, if the right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral review,” 28 U.S.C.

§ 2244(d)(1)(C). Even liberally construing the petition and response, the Court does not read either

as suggesting that this provision applies.

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). In addition,

because the AEDPA’s one-year limitation period is not jurisdictional, federal courts have

discretion to toll the limitation period for equitable reasons, Holland v. Florida, 560 U.S. 631, 645

(2010), and to excuse non-compliance with the statute of limitations if the petitioner makes “a

credible showing of actual innocence,” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).

For several reasons, the Court agrees with Crow that the petition should be dismissed as

barred by the one-year statute of limitations.

A. The petition is untimely under § 2244(d)(1)(A).

First, the petition is untimely under § 2244(d)(1)(A), and Pethel does not appear to argue

otherwise. Section 2244(d)(1)(A) requires a state 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 Pethel

pleaded guilty, 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). Pethel thus had 10 days from February 11,

2003, 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 a certiorari appeal. See Clayton, 700 F.3d at 441 (discussing

Oklahoma law and 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)). Pethel did not move to withdraw his plea, making

his state-court judgment final on February 21, 2003. See Gonzalez v. Thaler, 565 U.S. 134, 150

(2012) (explaining that judgment becomes final when the time for seeking direct review expires).

Pethel’s one-year limitation period under § 2244(d)(1)(A) commenced the next day, February 22,

2003, and, absent any statutory tolling events, that limitation period expired on February 23, 2004.6

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

year limitation period). Pethel is not entitled to statutory tolling for this one-year limitation period

because he did not file his first application for postconviction relief until September 13, 2018, more

than 14 years after the one-year limitation period expired. Clark, 468 F.3d at 714. The petition is

therefore untimely under § 2244(d)(1)(A).

B. The petition is untimely under § 2244(d)(1)(B).

Second, the petition is untimely under § 2244(d)(1)(B), even with the benefit of statutory

tolling. Under that provision, the one-year limitation period begins on “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.”

28 U.S.C. § 2244(d)(1)(B). Pethel does not expressly invoke this provision, but the Court finds it

reasonable to read the petition and response as suggesting that this provision may apply.

Specifically, Pethel asserts that his Brady claim is based on newly discovered evidence that was

previously unavailable because the prosecutor failed to disclose the contents of Tackett’s mental

health records and the trial court improperly sealed those same records before he entered his guilty

plea. Doc. 1, Pet., at 5, 20-24; Doc. 14, Resp., at 3. Crow appears to contend that the petition is

untimely under § 2244(d)(1)(B) because “any purported State impediment was removed when

[Pethel] actually became aware of the contents of the mental health records.” Doc. 10, Resp’t’s

Br., at 8.

The Court agrees. Even if the Court assumes without deciding that the alleged Brady

6 The one-year limitation period expired on February 22, 2004. However, because that

date fell on a Sunday, Pethel had until the following Monday, February 23, 2004, to file timely

habeas petition. Fed. R. Civ. P. 6(a)(1)(C).

violation constitutes an unconstitutional, state-created impediment and that the impediment

prevented Pethel from filing a federal habeas action, the petition is untimely. Pethel’s own

allegations suggest the impediment was removed on April 26, 2018, when Pethel first learned that

Browning received a new trial on the basis of the same alleged Brady violation, namely, the State’s

failure to disclose the contents of Tackett’s sealed mental health records before trial. Doc. 1, Pet.,

at 16-17; Doc. 14, Resp., at 1. Applying § 2244(d)(1)(B), Pethel’s one-year limitation period

commenced the next day, on April 27, 2018, and ran for 139 days before he filed his first

application for postconviction relief in state district court, on September 13, 2018. That application

was pending in state court, and the limitation period was thus tolled under § 2244(d)(2), until the

OCCA affirmed the denial of his application for postconviction relief on October 4, 2019. When

the one-year limitation period began to run again on October 5, 2019, Pethel had 226 days

remaining to file a timely federal habeas petition asserting the Brady claim. He filed the instant

petition on July 15, 2020: 284 days after the OCCA denied relief, and 58 days after his one-year

limitation period expired.

Under these facts, even assuming the State’s alleged Brady violation created an

unconstitutional impediment that prevented Pethel from filing a petition asserting his Brady claim,

and even with the benefit of statutory tolling, Pethel failed to file the petition within the one-year

limitation period provided by § 2244(d)(1)(B).

C. The petition is untimely under § 2244(d)(1)(D).

Third, and similarly, the petition is untimely under § 2244(d)(1)(D). Section 2244(d)(1)(D)

provides that the one-year limitation period begins to run on “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)(D). As just discussed, Pethel characterizes his Brady claim as

a claim based on “newly discovered evidence” and appears to contend that § 2244(d)(1)(D)

provides the start date for his one-year limitation period because he first became “aware,” on April

26, 2018, that Browning obtained federal habeas relief and a new jury trial based on the State’s

failure to disclose the contents of Tackett’s mental health records. Doc. 1, Pet., at 16-17; Doc. 14,

Resp., at 1. Crow contends that § 2244(d)(1)(D) does not provide a later commencement date

because a reasonably diligent petitioner could have discovered the factual predicate for the Brady

claim, at the very latest, in May 2013 when the Tenth Circuit issued its opinion in Browning v.

Trammell. Doc. 10, Resp’t’s Br., at 8.

The Court finds it unnecessary to address Crow’s contention regarding when a reasonably

diligent petitioner could have discovered the alleged Brady violation. Even assuming without

deciding that § 2244(d)(1)(D) provides a later commencement date for Pethel’s one-year limitation

period, the petition is untimely. As previously stated, Pethel alleges that he first discovered the

factual predicate of his Brady claim on April 26, 2018. Accepting that allegation as true, Pethel’s

one-year limitation period commenced the next day, on April 27, 2018, and, absent statutory

tolling, would have expired on April 27, 2019. Statutory tolling applies to this one-year limitation

period but does not render the petition timely. As just discussed, Pethel filed his application for

postconviction relief in state district court on September 13, 2018, after 139 days of his one-year

limitation period passed. That application was pending until October 4, 2019, when the OCCA

affirmed the denial of his application for postconviction relief. As of October 5, 2019, when the

tolling event ended, Pethel had 226 days to file a timely federal habeas petition asserting the Brady

claim. He filed the instant petition on July 15, 2020: 284 days after the OCCA denied relief, and

58 days after his one-year limitation period expired. Thus, even applying § 2244(d)(1)(D) and

Pethel’s alternative commencement date of April 26, 2018, and giving Pethel the benefit of

statutory tolling, the petition is untimely.

D. Pethel has not shown that equitable tolling or an equitable exception applies.

Fourth and finally, Pethel fails to demonstrate either that his circumstances warrant

equitable tolling of the one-year limitation period or that the untimely filing can be excused by

applying Perkins’ equitable exception.

1. Equitable tolling

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. Holland, 560 U.S. 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 response to Crow’s argument that Pethel fails to show any circumstances or the requisite

diligence to support equitable tolling, Pethel reasserts that he could not have raised the Brady claim

any sooner than he did because the State withheld the evidence that he claims was “critical to [his]

ability to impeach Ms. Tackett.” Doc. 14, Resp., at 16-17, 20. To the extent the Court construes

this assertion as an argument in favor of equitable tolling, the Court rejects that argument. As

previously discussed, Pethel alleges he discovered the alleged Brady violation at the end of April

2018. Following that discovery, Pethel permitted 139 days, or nearly five months, to pass before

presenting the Brady claim in state district court. After the OCCA affirmed the denial of his

application for postconviction relief at the beginning of October 2019, Pethel permitted an

additional 284 days, or about nine months, to pass before filing the instant federal habeas petition.

Even adopting Pethel’s view that the alleged Brady violation itself constitutes an extraordinary

circumstance that delayed his ability to seek federal habeas relief, Pethel fails to show that he acted

with reasonable diligence after he discovered the alleged Brady violation. The Court thus finds

that Pethel has not demonstrated that equitable tolling of the one-year limitation period is

warranted. See Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003) (noting that, in this circuit,

courts “generally decline[] 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”).

Moreover, while Pethel does not clearly identify any other circumstances that might

support equitable tolling, the Court finds some evidence suggesting that Pethel’s delayed filing

may be attributable, at least in part, to representations made by his postconviction counsel. With

his petition, Pethel submitted a letter he received from postconviction counsel regarding the filing

of a federal habeas petition. In the letter, dated October 22, 2019, counsel states, “There are time

limits on federal habeas, but generally, it is 1 year after the district court denies relief, and that

time is stayed pending the post-conviction appeal to the Court of Criminal Appeals. So, you have

plenty of time.” Doc. 1, Pet., at 27. The first statement is incorrect because it fails to recognize

the four specific trigger dates found in § 2244(d)(1), none of which provides that the one-year

limitation period begins on the date the state district court denies relief, and because it misstates

how § 2244(d)(2)’s statutory tolling provision works. To the extent Pethel may have understood

counsel’s statement to suggest that he had one year from October 4, 2019, to file a timely federal

habeas petition, that could explain why Pethel indicated in his petition that it had been timely filed

on July 15, 2020. Doc. 1, Pet., at 13-14. But Pethel does not appear to argue that equitable tolling

is warranted because he relied on postconviction counsel’s misstatement regarding the one-year

limitation period. And, even if he made that argument, postconviction counsel’s misstatement,

standing alone, evidences only simple negligence, not egregious misconduct that might support

equitable tolling of the one-year limitation period. See Holland, 560 U.S. at 652 (suggesting that

an attorney’s misconduct that results in missing or miscalculating a filing deadline may constitute

“simple negligence” but may not support equitable tolling); Fleming v. Evans, 481 F.3d 1249,

1256 (10th Cir. 2007) (holding “that sufficiently egregious misconduct on the part of a habeas

petitioner’s counsel may justify equitable tolling of the AEDPA limitations period”).

Based on the foregoing, the Court finds no basis to support equitable tolling of the one-

year limitation period.

2. Actual-innocence exception

Even when equitable tolling is not warranted, courts may excuse noncompliance with the

AEDPA’s one-year statute of limitations if the petitioner makes “a credible showing of actual

innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). Perkins’ equitable exception to the

one-year limitation period, however, “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].’” Perkins, 569 U.S. at 395 (alteration in original) (quoting Schlup v. Delo, 513 U.S.

298, 329 (1995)). Again, it is not clear from the petition or response whether Pethel seeks

application of this equitable exception to excuse his untimely filing. However, in his response,

Pethel asserts that his “claim of innocence relied heavily on proving that Ms. Tackett had lied

about his role in the events that led to the deaths of Mr. and Mrs. Hye, and most importantly that

she lied about him being the shooter.” Doc. 14, Resp., at 2.

Even if the Court construes Pethel’s response as asserting an actual-innocence claim, the

Court finds the claim is not sufficiently credible for two reasons. First, as Crow argues, it is

particularly difficult for a habeas petitioner to assert a credible claim of actual innocence when

that petitioner stood before the trial court and swore under oath that he was guilty of committing

the crimes with which he had been charged. Doc. 10, Resp’t’s Br., at 10; see Browning, 717 F.3d

at 1099-1100 (detailing the statements Pethel made at his plea hearing). As summarized by the

Tenth Circuit,

Contrary to Tackett’s testimony that Pethel himself had been the shooter, Pethel

stated at his change-of-plea hearing that Browning shot Tackett and the Hyes. But

Pethel otherwise corroborated most of Tackett’s story, including the perceived

motive. Pethel claimed that Browning came to his house four days before the crime

and explained that he wanted to “get [Tackett] out of the picture” because

Browning’s new girlfriend supposedly stated that she would leave Browning if a

paternity test identified him as the father of Tackett’s baby. R., Feb. 11, 2003 Hr’g

Tr. at 14. Browning also worried that the baby would inherit a disease that runs in

Tackett’s family, thus increasing the likely child support costs. Pethel nowhere

explained his own motive for participating in the murders, although his account

implies he would get to keep the property stolen from the Hyes.

Browning, 717 F.3d at 1099-1100. Regardless of whether Pethel might have been able to use

Tackett’s mental health records to create reasonable doubt about Tackett’s identification of Pethel

as the shooter, had he gone to trial, Pethel’s admissions at the plea hearing regarding his

involvement in the crimes undermine his assertion that the contents of those records could prove

his actual innocence. The Court is therefore not convinced “that, in light of the new evidence, no

juror, acting reasonably, would have voted to find [Pethel] guilty beyond a reasonable doubt” had

he chosen to proceed with a jury trial. Schlup, 513 U.S. at 329.

Further, in assessing the credibility of an actual-innocence claim, a court may consider the

timing of the habeas petition. Perkins, 569 U.S. at 386. Here, Pethel rested on his guilty plea for

over 15 years before asserting that he could have supported his “claim of innocence” if only he

had access to the contents of Tackett’s mental health records that were withheld from him before

he entered his guilty plea. Doc. 14, Resp. at 2. But, like Browning, Pethel knew before trial that

the contents of Tackett’s records had been sealed by the trial court. Even without those records,

Pethel had personal knowledge regarding his roles in the crimes he committed against Tackett and

the Hyes, and he asserted at his plea hearing in 2003 that Browning shot all three victims. Like

his guilty plea, the recent timing of his assertion of actual innocence tends to undermine that

assertion.

On the record presented, the Court concludes this is not one of the “rare” cases where

Perkins’ equitable exception applies.

III. Conclusion

Pethel failed to file his petition for writ of habeas corpus within the one-year limitation

period set forth in 28 U.S.C. § 2244(d)(1)(A), and Pethel has not shown that the petition is timely

even if the Court applies a later commencement date for the one-year limitation period as provided

in either 28 U.S.C. § 2244(d)(1)(B) or 28 U.S.C. § 2244(d)(1)(D). Further, Pethel has not

demonstrated either that equitable tolling is warranted or that the Court should apply Perkins’

equitable exception to excuse the untimeliness of the petition. The Court therefore grants Crow’s

dismissal motion and dismisses the petition, with prejudice, as barred by the applicable one-year

statute of limitations.

IV. Certificate of appealability

As a final matter, Rule 11(a), Rules Governing Section 2254 Cases in the United States

District Courts, requires a district court to “issue or deny a certificate of appealability when it

enters a final order adverse to the [habeas] applicant.” The court may issue a certificate of

appealability “only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When, as here, the court dismisses a habeas petition on procedural

grounds, the applicant must make this showing by demonstrating both “[1] that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

right and [2] that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell,

537 U.S. 322, 327 (2003) (stating that a habeas petitioner can obtain a certificate of appealability

“by demonstrating that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further”).

Here, the Court finds that reasonable jurists would not debate the Court’s determination

that the habeas petition is untimely under all three relevant provisions of 28 U.S.C. § 2244(d)(1)

discussed herein. But the Court finds that reasonable jurists might debate the more nebulous

question of whether equitable tolling is warranted under Pethel’s particular circumstances. In

addition, the Court finds that reasonable jurists could debate whether Pethel’s Brady claim—

asserting that his plea was rendered involuntary when the the State withheld material impeachment

and exculpatory evidence—“deserve[s] encouragement to proceed further,” particularly in light of

the fact that Pethel’s co-defendant obtained federal habeas relief on the same alleged Brady

violation. Compare Ruiz, 536 U.S. at 633 (concluding “that the Constitution does not require the

Government to disclose material impeachment evidence prior to entering a plea agreement with a

criminal defendant”), with United States v. Ellsbury, 528 F. App’x 856, 858 (10th Cir. 2013)

(unpublished)7 (citing Ruiz and acknowledging that “the prosecution is not required ‘to disclose

material impeachment evidence prior to entering a plea agreement with a criminal defendant,’”

but also citing Tenth Circuit precedent for the proposition that “with respect to non-impeachment

7 The Court cites this unpublished decision as persuasive authority. See Fed. R. App. P.

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

evidence, a movant challenging the voluntariness of his plea must show ‘that but for the failure to

produce such information [he] would not have entered the plea but instead would have insisted on

going to trial’” (first quoting Ruiz, 536 U.S. at 633; then quoting United States v. Walters, 269

F.3d 1207, 1214 (10th Cir. 2001))).

Granted, in the end, Pethel may not be able to overcome the untimely filing of his petition

or be able to show that he is entitled to federal habeas relief on his Brady claim. But a court

“should not decline” to issue a certificate of appealability “merely because it believes the applicant

will not demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337. The Court therefore

grants a certificate of appealability on the issue of whether Pethel’s particular circumstances

warrant equitable tolling of the one-year limitation period.

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. Respondent’s motion to dismiss (Doc. 9) is granted.

2. The petition for writ of habeas corpus (Doc. 1) is dismissed with prejudice as barred by

28 U.S.C. § 2244(d)(1)’s one-year statute of limitations.

3. A certificate of appealability is granted on the issue of whether Pethel’s circumstances

warrant equitable tolling of the one-year limitation period.

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

ORDERED this 15th day of June, 2021.