# Musonda v. Rogers

> District Court, N.D. Oklahoma · November 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10387308

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** November 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

LUBUTO MUSONDA, )
)
Petitioner, )
)
v. ) Case No. 23-CV-0030-CVE-CDL
)
MIKE ROGERS,1 )
)
Respondent. )

OPINION AND ORDER
Petitioner Lubuto Musonda, a state prisoner appearing through counsel, brings this action
pursuant to 28 U.S.C. § 2254, seeking federal habeas relief from the judgment entered against him
in the District Court of Tulsa County, Case No. CF-2015-770. Respondent Mike Rogers has
moved to dismiss the petition, arguing that Musonda failed to file it within the one-year statute of
limitations prescribed in 28 U.S.C. § 2244(d)(1). Having considered the petition (Dkt. # 1),
respondent’s motion to dismiss (Dkt. # 9) and brief in support (Dkt. # 10), and Musonda’s response
in opposition to the motion (Dkt. # 11), the Court grants respondent’s motion and dismisses the
petition with prejudice, as barred by the one-year statute of limitations.
I. BACKGROUND
Musonda was convicted in District Court of Tulsa County, Case No. CF-2015-770 of child
abuse by injury, in violation of OKLA. STAT. tit. 21, § 843.5 (Count 3), second degree robbery, in
violation of OKLA. STAT. tit. 21, § 791 (Count 4), assault and battery on a police officer, in violation

1 Musonda presently is incarcerated at the Lexington Correctional Center, in Lexington,
Oklahoma. The Court therefore substitutes the Lexington Correctional Center’s current warden,
Mike Rogers, in the place of Kameron Harvanek, as party respondent. See Rule 2(a), Rules
Governing Section 2254 Cases in the United States District Courts.
of OKLA. STAT. tit. 21, § 649 (Count 5), assault and battery, in violation of OKLA. STAT. tit. 21, §
644 (Count 6), and cruelty to animals, in violation of OKLA. STAT. tit. 21, § 1685 (Count 7). Dkts.
# 10-1, 10-2, 10-3, 10-4, 10-5. On October 24, 2016, Musonda received a sentence of ten years
on Count 3, seven years on Count 4, one year on Count 5, ninety days on Count 6, and ninety days

on Count 7, with all terms to be served consecutively. Id.
Musonda directly appealed his conviction and sentence to the Oklahoma Court of Criminal
Appeals (OCCA), which denied relief on January 10, 2019. Dkt. # 10-6. Musonda then filed an
application for post-conviction relief on January 13, 2020, which he amended on January 28, 2021.
Dkts. # 10-7, 10-8, 10-9. The state district court denied the application, and on November 30,
2021, the OCCA affirmed the denial. Dkts. # 10-11, 10-12. Musonda filed his federal habeas
petition on January 24, 2023, seeking review of his claims of ineffective assistance of appellate
counsel first raised in his application for post-conviction relief. Dkt. # 1, at 16-23.2
II. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), state prisoners have

one year from the latest of four triggering events in which to file a federal habeas petition. 28
U.S.C. § 2244(d)(1). These events include:
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or

2 The Court’s citations refer to the CM/ECF header pagination.
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The one-year limitations period generally runs from the date the
judgment became “final” under § 2244(d)(1)(A), unless a petitioner alleges facts that implicate §
2244(d)(1)(B), (C), or (D). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
a. The Applicable Limitations Period
Musonda invokes § 2244(d)(1)(B), claiming that he was placed in therapeutic seclusion
due to his mental condition and that this seclusion was a state-created impediment to filing his
petition. Dkt. # 1, at 8-9. Musonda provides no facts, however, supporting this assertion. He fails
to supply the dates during which his therapeutic seclusion was in effect, allege that he was deprived
the ability to send legal correspondence while secluded, or discuss how the therapeutic seclusion
violated the Constitution or federal law. The record reflects that Musonda, through counsel, filed
a direct appeal and an application for post-conviction relief in state court while incarcerated.
Musonda does not explain why the conditions of his imprisonment did not impede those efforts
yet prevented the earlier filing of his federal habeas action. Aragon v. Williams, 819 F. App’x
610, 613 (10th Cir. 2020) (explaining that § 2244(d)(1)(B) “typically applies when the state
thwarts a prisoner’s access to the courts” and that, to trigger the provision, “the state-created
impediment must have actually prevented the inmate from filing his application”).3 The Court
therefore determines that Musonda has failed to demonstrate the applicability of § 2244(d)(1)(B).

Since Musonda has failed to allege facts triggering 28 U.S.C. § 2244(d)(1)(B), (C), or (D),
the one-year limitation period for his petition began to run pursuant to § 2244(d)(1)(A) on the date
on which the judgment became final. Musonda was afforded 90 days from the OCCA’s January

3 The Court cites all unpublished decisions herein as persuasive authority. FED. R. APP. P.
32.1(a); 10th Cir. R. 32.1(A).
10, 2019, denial of his direct appeal to seek a writ of certiorari from the United States Supreme
Court. See 28 U.S.C. § 2101(c). Thus, section 2244(d)(1)’s one-year limitation period for seeking
federal habeas relief began to run on April 11, 2019, and expired one year later, on April 11, 2020.
See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Section 2244(d)(1)(A) therefore

bars Musonda’s January 24, 2023, petition absent statutory or equitable tolling or a showing of
actual innocence.
b. Statutory and Equitable Tolling
Under 28 U.S.C. § 2244(d)(2), the limitation period is statutorily tolled during the
pendency of any “properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2). Musonda sought
postconviction relief on January 13, 2020, and the OCCA affirmed the state district court’s denial
of his application on November 30, 2021. Dkts. # 7, 8, 9, 11, 12. Musonda’s April 11, 2020,
deadline to seek federal habeas relief was therefore tolled 688 days, to February 28, 2022.
Musonda did not file his federal habeas petition until January 24, 2023. Thus, the tolling afforded

under § 2244(d)(2) is insufficient to render his petition timely.
While the one-year statute of limitations also may be subject to equitable tolling, equitable
tolling “is only available when an inmate diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Musonda has not argued that he is entitled to
equitable tolling, and the record before the Court does not demonstrate such entitlement. See Yang
v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (“An inmate bears a strong burden to show
specific facts to support his claim of extraordinary circumstances and due diligence.” (alteration
omitted) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008))).
c. Actual Innocence Exception
In his response to the dismissal motion, Musonda invokes the equitable doctrine of actual
innocence as a means of overcoming the AEDPA’s statute of limitations. Dkt. # 11, at 1-4.
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass” despite

the “expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
This equitable exception, however, applies “to a severely confined category.” Id. at 395. Prisoners
asserting actual innocence “must establish that, in light of new evidence, it is more likely than not
that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Fontenot
v. Crow, 4 F.4th 982, 1030 (10th Cir. 2021) (internal quotation marks omitted) (quoting House v.
Bell, 547 U.S. 518, 537-38 (2006)). The standard “does not demand conclusive proof of
exoneration; rather, it involves a probabilistic determination that, in light of all the evidence—old
and new; admissible and inadmissible—more likely than not any reasonable juror would have
reasonable doubt.” Id. at 1035 (internal citations and quotation marks omitted) (first quoting Case
v. Hatch, 731 F.3d 1015, 1036 (10th Cir. 2013), then quoting House, 547 U.S. at 538)).

The actual-innocence gateway to federal habeas review requires factual innocence, “not
mere legal insufficiency.” Pacheco v. El Habti, 62 F.4th 1233, 1241 (10th Cir. 2023) (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)). Musonda contends that he is factually
innocent because his mental condition prevented him from forming the requisite intent that
constituted an element of the offense. Dkt. # 11, at 1-4. The Court need not address this argument,
as Musonda has failed to present “new reliable evidence . . . that was not presented at trial.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). Instead, Musonda relies on the trial testimony of his expert
witness to support his assertion of actual innocence. Dkt. # 11, at 2; see Fontenot v. Crow, 4 F.4th
982, 1031-34 (10th Cir. 2021) (adopting the view that evidence is “new” for purposes of the actual-
innocence gateway if it was not presented to the fact finder during trial).
II. |§ CONCLUSION
Based on the foregoing, the Court grants respondent’s dismissal motion (Dkt. # 9) and
dismisses the petition, with prejudice, as barred by the one-year statute of limitations. In addition,
the Court declines to issue a certificate of appealability because the Court finds that no reasonable
jurists would debate the procedural dismissal of the petition on statute-of-limitations grounds. 28
U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. the Clerk of Court shall note on the record the substitution of Mike Rogers in place of
Kameron Harvanek as party respondent;
2. respondent’s motion to dismiss (Dkt. # 9) is granted;
3. the petition for writ of habeas corpus (Dkt. # 1) is dismissed with prejudice as barred
by 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations;
4. acertificate of appealability is denied; and
5. aseparate judgment shall be entered in this matter.
DATED this 6th day of November, 2023.
Chena A babe
CLAIRE V.EAGAN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387308. Public record. Not legal advice.