Nelson v. Crow

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ANTON K. NELSON, )

)

Petitioner, )

)

v. ) Case No. CIV-20-433-R

)

SCOTT CROW, Director, )

)

Respondent. )

REPORT AND RECOMMENDATION

Petitioner, an Oklahoma prisoner represented by counsel Debra K.

Hampton, seeks habeas corpus relief under 28 U.S.C. § 2254 from his

“aggregate” sentence for two counts of first-degree rape, one count of robbery

with a dangerous weapon, and two counts of assault with a dangerous weapon.

Doc. 1.1 United States District Judge David L. Russell referred the matter for

initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 3.

Respondent has moved to dismiss the petition as time-barred and filed a brief

in support of the motion. See Docs. 8-9. Petitioner has responded. See Doc.

15.

1 Citations to a court document are to its electronic case filing designation

and pagination. Unless otherwise indicated, quotations are verbatim.

For the reasons discussed below, the undersigned Magistrate Judge

recommends the Court grant Respondent’s motion to dismiss the petition as

time-barred.

I. Procedural background.

Petitioner, while represented by different counsel, pleaded guilty on

June 3, 1998, when he was seventeen years old, to several felony crimes. See

Doc. 9, Atts. 1-2. In Oklahoma County Case No. CF-97-5009, Petitioner

pleaded guilty to first-degree rape, robbery with a dangerous weapon, and two

counts of assault with a dangerous weapon. Id. Att. 1, at 1-2; Att. 2, at 4-5. He

was convicted and sentenced to thirty-five years’ imprisonment for first-degree

rape, twenty years’ for robbery with a dangerous weapon, and ten years’ each

for assault with a dangerous weapon. Id. Att. 2, at 2. In Oklahoma County

Case No. CF-97-6770, Petitioner pleaded guilty to one count of first-degree

rape and was sentenced to life imprisonment. Id. Att. 2; Att. 3, at 1. The state

district court ordered Petitioner’s sentences to run consecutively to one

another. Id. Att. 1, at 2.2 Petitioner moved to withdraw his pleas in both cases

and the Oklahoma Court of Criminal Appeals affirmed his convictions and

sentences in a summary opinion denying certiorari issued July 6, 1999. Id.

2 Petitioner has since discharged his thirty-five-year sentence, was

paroled from his twenty-year sentence in January 2020, “and is now serving

the first of his two consecutive ten-year sentences” for which he is parole-

eligible in about three years. See Doc. 9, Att. 4, at 6.

Att. 3. Petitioner did not seek a writ of certiorari in the United States Supreme

Court.

Petitioner, pro se, filed his first application for post-conviction relief in

the state district court on February 3, 2015, and the court denied it on

November 9, 2015. Doc. 1, at 8. He did not timely appeal and his request for

an appeal out-of-time was denied on January 26, 2016. Id.

Petitioner, represented by Ms. Hampton, filed his second application for

post-conviction relief on April 22, 2019. Id. at 9-10. The state district court

denied his application on December 2, 2019, and the Oklahoma Court of

Criminal Appeals affirmed the denial in an order issued February 28, 2020.

See Doc. 9, Att. 4.

Petitioner filed his petition for habeas corpus relief in this Court on May

11, 2020. Doc. 1.

II. Petitioner’s habeas claim.

Petitioner raises one claim in his habeas petition:

Petitioner’s aggregate sentences violates the Eighth Amendment

establishing a mandatory life without parole sentence.

Doc. 1, at 16. Petitioner asserts that, because he was a juvenile when he

committed his offenses, his aggregate seventy-five-year sentence results in a

“mandatory life without parole because his sentence exceeds his life

expectancy.” Id. Citing Graham v. Florida, 560 U.S. 48 (2010), Petitioner

asserts his sentence is unconstitutional because “he will never have a

meaningful opportunity for review by the Parole Board . . . .” Id.3 Petitioner

raised this claim for the first time in his second application for post-conviction

relief filed on April 22, 2019. Doc. 1, at 9-10; Doc. 9, Att. 4.

III. Analysis.

A. Limitations period established by the Antiterrorism and

Effective Death Penalty Act of 1996.

The AEDPA established a one-year limitation period during which an

inmate in state custody can file a federal habeas petition challenging a state

conviction:

3 In Graham, the United States Supreme Court held that “[t]he

Constitution prohibits the imposition of a life without parole sentence on a

juvenile offender who did not commit homicide.” 560 U.S. at 82. “A State need

not guarantee the offender eventual release, but if it imposes a sentence of life

it must provide him or her with some realistic opportunity to obtain release

before the end of that term.” Id. In Budder v. Addison, 851 F.3d 1047, 1059

(10th Cir. 2017), the Tenth Circuit concluded that, under Graham’s categorical

rule, the petitioner’s aggregate sentence, which required him to serve 131.75

years before he was eligible for parole, violated the Eighth Amendment

because it did “not provide him a realistic opportunity for release.”

In this case, Petitioner did not receive a life without parole sentence, and,

of his consecutive sentences, he has discharged one, has been granted parole

on another, and is eligible for a parole hearing on the first of his two

consecutive ten-year sentences in about three years. See Doc. 9, Att. 4, at 6. It

is therefore doubtful that Graham, or the Tenth Circuit’s interpretation of

Graham in Budder, applies to Petitioner’s alleged “de facto life without parole”

sentence. See Doc. 1, at 10. Nevertheless, in addressing the timeliness of the

petition, the Court proceeds, without deciding, as though the Graham decision

applies to his case.

A 1-year period of limitation shall apply to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment

of a State court.

28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the

limitation period:

The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

Id.

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

Unless a petitioner shows otherwise, the limitations period generally

begins to run from the date a conviction and sentence are final. See Preston v.

Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner’s convictions and

sentences became final on October 4, 1999, ninety days after the Oklahoma

Court of Criminal Appeals affirmed them. See Collins v. Bear, 698 F. App’x

946, 948 (10th Cir. 2017) (finding the petitioner’s convictions became final

ninety days after the OCCA affirmed his convictions). The one-year period of

limitation begins to run the day after a conviction is final. See Harris v.

Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); see also United States v.

Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary

method” wherein “‘the day of the act . . . from which the designated period of

time begins to run shall not be included’” (quoting Fed. R. Civ. P. 6(a)).

Petitioner’s limitation period began running on October 5, 1999 and, absent

tolling, expired one year later, on October 5, 2000. His habeas corpus petition,

filed May 11, 2020, is therefore untimely under § 2244(d)(1)(A).

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

Citing § 2244(d)(1)(C), Petitioner argues that the merits of his action are

governed by Graham which he asserts was “made retroactive by Montgomery

v. Louisiana, 577 U.S. 460 (2016) which announced a new rule of constitutional

law applying to cases on collateral review.” Doc. 1, at 10-11. Respondent

argues in his motion to dismiss that the petition is not timely under

§ 2244(d)(1)(C) because it was not filed within one year of when Graham was

decided on May 17, 2010. See Doc. 9, at 6. The Court agrees with Respondent.

Although Petitioner’s reply is not entirely clear, he appears to argue that

he is not time-barred because the Supreme Court did not clarify, until it issued

its decision in Montgomery, that its “intervening change in law with both

homicide and non-homicide offenses” committed by juveniles should be applied

retroactively to cases on collateral review.4 See Doc. 15, at 3 & n.1 (footnoting

that Montgomery was decided on January 25, 2016 and stating that

“Montgomery determined the intervening change in law with both homicide

and non-homicide offenses and determined Miller was retroactively applied to

cases on collateral review.”). To buttress his argument that his claim did not

ripen until the Supreme Court rendered its Montgomery decision, Petitioner

cites cases where the reviewing court either declined to pass on the issue of the

retroactivity of Miller,5 or remanded the case post-Montgomery so that the

lower court could address the Miller issue.6 See id. at 3-4. These cases are

inapposite.

Petitioner’s counsel “appears to aggregate the holdings of Graham and

Miller.” See Berry Whitten, No. CIV-20-132-D, 2020 WL 3980661, at *2 (W.D.

Okla. Mar. 4, 2020), adopted by 2020 WL 1900450 (W.D. Okla. Apr. 17, 2020).

But, while the Montgomery Court held that “Miller announced a new

4 Petitioner cites to Miller v. Alabama, 567 U.S. 460 (2012), wherein the

Supreme Court held that mandatory life without parole sentences for juvenile

homicide offenders violated the Eighth Amendment. 567 U.S. at 479.

5 See Davis v. McCollum, 798 F.3d 1317, 1320 (10th Cir. 2015).

6 Citing Cardoso v. McCollum, 660 F. App’x 678, 681 (10th Cir. 2016), and

then citing Tatum v. Arizona, 137 S. Ct. 11 (2016).

substantive constitutional rule that was retroactive on state collateral review,

the Court did not make such a pronouncement regarding Graham.” Id. (citing

Montgomery, 136 S. Ct. at 736). Despite counsel’s confusion, the date of the

Supreme Court’s Montgomery decision did not serve to re-start Petitioner’s

one-year limitations period.7

Instead, the Supreme Court’s Graham decision, decided on May 17,

2010, would have re-started Petitioner’s statutory clock under § 2244(d)(1)(C).

See, e.g., Dodd v. United States, 545 U.S. 353, 357 (2005) (holding that the

AEDPA “unequivocally identifies one, and only one, date from which the 1-year

limitation period is measured” and that is the date on which the right asserted

was initially recognized by the Supreme Court). And without tolling,

Petitioner’s statute of limitations to bring his habeas corpus petition would

have expired one year later, on May 17, 2011. The instant petition, filed on

May 11, 2020, is thus untimely.8

7 Petitioner did not file his second post-conviction application until April

22, 2019. See Doc. 1, at 9-10. Even assuming arguendo that the one-year

limitations period commenced on January 25, 2016, the date of the

Montgomery decision, both Petitioner’s relevant post-conviction application

and the instant petition were filed well after the one-year limitations period

would have expired on January 25, 2017.

8 In his reply to Respondent’s motion to dismiss, Petitioner cites to Budder

and to the Oklahoma Court of Criminal Appeals’ opinion in Martinez v. State,

442 P.3d 154 (Okla. Crim. App. 2019). See Doc. 15, at 5. In Martinez, the state

court determined that it was not “clearly established law” but a question that

B. Availability and effect of tolling on the limitation period.

1. Petitioner is not entitled to statutory tolling.

The AEDPA includes a tolling provision for properly filed post-conviction

actions:

The 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 shall not be counted toward any

period of limitation under this subsection.

28 U.S.C. § 2244(d)(2). Petitioner, however, is not entitled to statutory tolling

under this provision because his relevant post-conviction application was not

filed until April 22, 2019, almost eight years after the expiration of the one-

year period under § 2244(d)(1)(C). See 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.”); Green v.

Booher, 42 F. App’x 104, 106 (10th Cir. 2002) (“[S]tate application [for post-

“continues to divide state and federal courts” whether Graham applies “to

offenders with multiple crimes and multiple charges.” 442 P.3d at 155.

If Petitioner is suggesting his time-period was triggered by either one of

these cases, his assertion fails under § 2244(d)(1)(C)’s language. This provision

refers only to “the date on which the constitutional right asserted was initially

recognized by the Supreme Court,” and not to the date a lower court applied

the Supreme Court opinion. See 28 U.S.C. § 2244(d)(1)(C) (emphasis added);

see also Williams v. Dowling, 2020 WL 3865078, at *5 (N.D. Okla. Jul. 8, 2020)

(“[T]o the extent petitioner relies on Budder to argue that his petition is timely

under § 2244(d)(1)(C), he fails to overcome the time-bar.”).

conviction relief] could not toll the federal limitation period, because

[petitioner] did not file it until after the one-year period had expired.”).

2. Petitioner is not entitled to equitable tolling.

Unless equitable tolling applies, the petition is untimely. “[A] [habeas]

petitioner is entitled to equitable tolling only if he shows (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S.

631, 649 (2010) (internal quotation marks omitted).

Even assuming a diligent pursuit of rights, the one-year period of

limitation “is subject to equitable tolling . . . only in rare and exceptional

circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal

quotation marks omitted). Petitioner must “demonstrate[] 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). Petitioner has the

burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d

1125, 1128 (10th Cir. 2011). “Simple excusable neglect is not sufficient.”

Gibson, 232 F.3d at 808.

Petitioner argues that his time should be tolled because he has

“diligently pursued his interests in pursuing his claim” and the state court’s

post-conviction decision was an “unreasonable determination” of Graham. See

Doc. 1, at 10-11; Doc. 15, at 2, 5. But Petitioner waited almost nine years after

Graham to file an application for post-conviction relief. This does not amount

to diligence. See, e.g., Peoples v. Falk, 613 F. App’x 752, 752-53 (10th Cir. 2015)

(affirming the district court’s finding that petitioner was not entitled to

equitable tolling because his three-year delay in pursing his rights showed a

lack of diligence). And, even after the Supreme Court’s ruling in Montgomery,

which he wrongly claims re-started his statute of limitations clock, he still

waited another three plus years to file his application for post-conviction relief

raising the Graham issue. Petitioner submits no explanation for this lengthy

delay. Cf. Walker v. Aldridge, No. CIV-18-382-HE, 2018 WL 3240965, at *2

(W.D. Okla. July 3, 2018) (“While petitioner’s delay in filing her petition after

Miller was decided is understandable, she offers no explanation as to why she

waited more than a year and a half after the Supreme Court decided

Montgomery to seek post-conviction relief.”).

Not only has Petitioner not demonstrated diligence, he has also failed to

demonstrate that some extraordinary circumstance stood in his way that

prevented timely filing. Nothing prevented Petitioner from mounting a

challenge to his aggregate sentence after the Supreme Court rendered its

Graham decision. While Petitioner may have faced “an uphill battle” had he

chosen to seek relief within one year of Graham, he “at least had the

opportunity to take this path” in a timely manner. See, e.g., Lewis v. English,

736 F. App’x 749, 752 (10th Cir. 2018) (emphasis in original).

Petitioner fails to satisfy his burden that equitable tolling should apply

to save his untimely petition. The Court should therefore decline to equitably

toll Petitioner’s long-expired limitations period.

3. No fundamental miscarriage of justice occurred.

Petitioner argues the state court’s allegedly unreasonable application of

Supreme Court law qualifies him for an “equitable exception” to the limitations

period. See Doc. 1, at 6; Doc. 15, at 2, 5. The Court assumes Petitioner is

asserting a fundamental miscarriage of justice claim. To bypass the

limitations period based on a fundamental miscarriage of justice, however,

Petitioner must present “a credible showing of actual innocence.” Doe v. Jones,

762 F.3d 1174, 1182 (10th Cir. 2014) (internal quotation marks omitted); see

also McQuiggin v. Perkins, 569 U.S. 383, 391-92 (2013) (holding that because

petitioner did not diligently pursue his claims, he was not entitled to equitable

tolling, and thus could only proceed with an equitable “exception” through “a

plea of actual innocence”). But “[t]o be credible, such a claim requires

petitioner to support his allegations of constitutional error with new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at

trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). And Petitioner “‘must show

that it is more likely than not that no reasonable juror would have convicted

him in the light of the new evidence.’” McQuiggin, 569 U.S. at 399 (quoting

Schlup, 513 U.S. at 327).

Petitioner’s habeas petition challenges only his sentences—not his

convictions—and he does not allege he is actually innocent of his crimes. There

is thus no basis for bypassing the statute of limitations bar.

IV. Recommendation and notice of right to object.

Petitioner’s one-year statute of limitations expired years before he filed

his habeas corpus petition in this Court. He presents no basis for statutory or

equitable tolling of the limitations period and he does not allege actual

innocence. The undersigned therefore recommends the Court grant

Respondent’s motion to dismiss the petition as untimely. Docs. 8-9.

The undersigned advises the parties of the right to file an objection to

this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

P. 72(b)(2). Any objection must be filed with the Clerk of Court on or before

October 6, 2020. The undersigned further advises the parties that the failure

to file a timely objection to this Report and Recommendation waives the right

to appellate review of both factual and legal issues contained herein. Moore v.

United States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all the issues referred to

the undersigned Magistrate Judge in the captioned matter.

ENTERED this 15th day of September, 2020.

hea Ler» _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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