“[B]ecause the constitutional error [the petitioner] raises focuses only on the State’s post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim.”
How later courts described this case
- “[B]ecause the constitutional error [the petitioner] raises focuses only on the State’s post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim.”
- “Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TIMOTHY WAYNE LAMBERT, )
)
Petitioner, )
)
v. ) Case No. CIV-18-755-G
)
RICK WHITTEN, Warden, )
)
Respondent.1 )
ORDER
Now before the Court is Petitioner’s Motion for Reconsideration En Banc Pursuant
to Rule 60(b) (Doc. No. 9). On June 24, 2019, this Court issued its Opinion and Order
(Doc. No. 7) sua sponte dismissing Plaintiff’s Petition for Writ of Habeas Corpus
(“Petition,” Doc. No. 1) as untimely.
BACKGROUND
The procedural history of Petitioner’s state-court convictions, appeals, and
applications for postconviction relief is set forth in the Court’s Opinion and Order and will
not be repeated here.2 The Court determined that the Petition, filed on August 6, 2018, was
untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
1 Rick Whitten, the current Warden at James Crabtree Correctional Center, is hereby
substituted as Respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases
in the United States District Courts and Rules 25(d) and 81(a)(4) of the Federal Rules of
Civil Procedure.
2 Plaintiff does not challenge the procedural history set forth in the Court’s Opinion and
Order.
(“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), as even allowing for statutory tolling it had been
filed more than one year after Petitioner’s conviction became final and he had made no
showing of entitlement to equitable tolling or of actual innocence. See Op. & Order at 4-
6.
Petitioner filed his Motion for Reconsideration on July 8, 2019, asserting that the
Court erred in calculating the timeliness of his Petition. See Pet’r’s Mot. at 2. Petitioner
argues the one-year statute of limitation should be calculated pursuant to 28 U.S.C. §
2244(d)(1)(D). See id. Petitioner states the Petition was based upon the State of
Oklahoma’s miscalculation of his future dangerousness and that the factual predicate of
this claim was “developed” “after trial, upon assessment made by the parole investigator
in 2014 and 2017.”3 Id. at 1-2; see also Pet. at 7. Petitioner contends that he
“immediate[ly]” filed “an application for post-conviction relief” raising this predicate fact
in October 2017. Pet’r’s Mot. at 2.
STANDARD OF DECISION
The Federal Rules of Civil Procedure do not recognize a motion to reconsider.
Computerized Thermal Imaging, Inc., v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th
Cir. 2002). Federal Rule of Civil Procedure 60(b) provides, however, that a court may
3 Although Petitioner references both 2014 and 2017 parole-investigator assessments in his
Motion, the Petition mentions only a 2014 assessment and cites an unattached 2012
Investigative Report. Pet. at 4. In addition, Petitioner makes no distinction between the
findings of the 2014 and 2017 assessments in his Motion. Therefore, the Court will
consider the 2014 assessment addressed in the pleading for purposes of Petitioner’s Motion
and calculation of the AEDPA statute of limitations.
relieve a party, upon motion, from a final judgment for mistake, inadvertence, surprise,
excusable neglect, fraud, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1),
(3), (6). “Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th
Cir. 1995)). “[A] motion for reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the controlling law. It is not appropriate to
revisit issues already addressed or advance arguments that could have been raised in prior
briefing.” Id. (citation omitted).
Generally, a Rule 60(b) motion filed in a habeas proceeding is treated as “a second
or successive petition if it in substance or effect asserts or reasserts a federal basis for relief
from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th
Cir. 2006). If the motion challenges “only the federal habeas court’s ruling on procedural
issues [it] should be treated as a true 60(b) motion rather than a successive petition.” Id. at
1216. Here, Petitioner challenges a procedural determination and, thus, the Motion is
treated as a true Rule 60(b) motion. See id. (stating that a Rule 60(b) motion “asserting
that the federal district court incorrectly dismissed a petition . . . because of the statute of
limitations constitutes a true 60(b) motion”).
DISCUSSION
Liberally construing the Motion, Petitioner asserts that the Court has
misapprehended the facts upon which the Petition is based and, as a result, mistakenly
calculated the one-year statute of limitations from the date on which his conviction became
final pursuant to 28 U.S.C. 2244(d)(1)(A). See Fed. R. Civ. P. 60(b)(1) (allowing relief
based on “mistake, inadvertence, surprise, or excusable neglect”). Petitioner argues the
Court should have calculated the statute of limitations from “‘the date on which the factual
predicate of the claim or claims presented could have been discovered through the exercise
of due diligence.’” Pet’r’s Mot. at 2 (quoting 28 U.S.C. § 2244(d)(1)(D)). Specifically,
Petitioner contends that the 2014 Pardon and Parole Board’s investigation discussed in the
Petition constitutes new evidence of the State of Oklahoma’s miscalculation of his future
dangerousness and, therefore, the statute of limitations period is most appropriately
calculated pursuant to § 2244(d)(1)(D). See id. at 1-2. Petitioner points to the assessed
level of risk to the community attributed to him in this investigation.4 See id.; see also Pet.
at 6.
The Petition states that during his incarceration Petitioner completed “SAMSHA
Anger Management and Victim Impact” programs and is currently enrolled in “the GED
program and Therapeutic Living Program” and that “[u]pon completion of these programs
and development, Petitioner has been assessed by the Pardon and Parole Board
investigation in 2014 as MODERATE RISK for return to the community.”5 Pet. at 6.
Petitioner argues this new level of assessed risk constitutes “evidence of material facts, not
4 Petitioner presents no specific date for the alleged 2014 assessment; nor does he attach
the specified assessment as an exhibit to his Petition or Motion.
5 Although Petitioner states that the investigation was conducted in 2014, he cites to an
Investigative Report prepared in 2012. See Pet. at 6.
previously presented and heard, that requires modification of the sentence in the interest of
justice.” Pet. at 6; see also id. at 7; Okla. Stat. tit. 22, § 1080(d).6
The Court concludes that the referenced investigation and risk assessment fail to
speak to facts present at the time of Petitioner’s convictions indicating a miscalculation by
the trial court. Instead, the 2014 investigation and risk assessment establish only that
Petitioner completed various programs during his incarceration and that the completion of
those programs resulted in the Pardon and Parole Board assigning him a level of moderate
risk for return to the community. Pet. at 6. Petitioner's implication that good behavior and
completion of beneficial programs over the course of 23 years of incarceration should
trigger the statute of limitations to begin to run on the unspecified date of a 2014 Pardon
and Parole Board investigation is without merit. Petitioner sets forth no legal basis for such
a finding in his Petition or in his Motion. Further, “the undersigned is unaware of any legal
authority permitting a court to essentially usurp one role of a state’s pardon and parole
board by granting a petitioner a new statute of limitations based on his or her good behavior
while incarcerated.” Lowery v. Bryant, CIV-18-413-F, 2018 WL 3978380, at *2 (W.D.
Okla. July 9, 2018) (R. & R.), adopted, 2018 WL 3978370 (W.D. Okla. Aug. 20, 2018),
certificate of appealability denied, 760 F. App’x 617 (10th Cir. 2019), and petition for cert.
6 To the extent this habeas claim is premised upon an error of state law resulting in deficient
postconviction proceedings, Petitioner would not be entitled to federal habeas relief even
assuming his Petition was timely filed. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th
Cir. 1998) (“[B]ecause the constitutional error [the petitioner] raises focuses only on the
State’s post-conviction remedy and not the judgment which provides the basis for his
incarceration, it states no cognizable federal habeas claim.”).
filed, No. 18-9524 (U.S. June 3, 2019). Therefore, Petitioner has not shown that his
limitations period was triggered by newly discovered evidence of predicate facts invoking
calculation of the statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(D).
The Court also finds that even if it were to conclude that the 2014 assessment
demonstrated a newly discovered predicate fact to support Petitioner’s claim, the Petition
would remain untimely. Petitioner raised this issue for the first time in his October 2017
application for postconviction relief, more than one year after any 2014 event. Pet. at 7.
Statutory tolling would not extend the one-year limitations period calculated from the 2014
assessment. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions
for post-conviction relief filed within the one year allowed by AEDPA will toll the statute
of limitations.”). And Petitioner has presented no actual-innocence argument or facts
tending to “show both extraordinary circumstances preventing timeliness and diligent
pursuit of his claim” that would entitle him to equitable tolling. Id.; see also Op. & Order
at 5-6. Accordingly, Petitioner’s Petition is untimely if calculated from the 2014
assessment pursuant to 28 U.S.C. § 2244(d)(1)(D).
CONCLUSION
For the reasons set forth above, Petitioner’s Motion for Reconsideration (Doc. No.
9) is hereby DENIED.
The Clerk of Court is directed to serve copies of the Petition and of this Order on
Respondent and the Attorney General of the State of Oklahoma through electronic mail
sent to fhc.docket@oag.state.ok.us.
IT IS SO ORDERED this 30th day of September, 2019.
CHARLES B. GOODWIN
United States District Judge
vy