Moody v. Dowling

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

NICHOLAS F. MOODY, )

)

Petitioner, )

)

v. ) Case No. CIV-20-00696-JD

)

JANET DOWLING, Warden, )

)

Respondent. )

ORDER

Before the Court is a Report and Recommendation [Doc. No. 14] issued by United

States Magistrate Judge Suzanne Mitchell on December 22, 2020. Judge Mitchell

recommends that the Court grant Respondent’s Motion to Dismiss [Doc. Nos. 12, 13] and

dismiss as untimely Petitioner Nicholas Frank Moody’s Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 [Doc. No. 1]. Judge Mitchell advised Moody that the

deadline to file an objection to the Report and Recommendation was January 12, 2021,

and that failure to timely object to the Report and Recommendation would waive the

right to appellate review of both factual and legal issues contained in the Report and

Recommendation. [Doc. No. 14 at 11].

Moody filed a timely objection [Doc. No. 15],1 and the Court therefore conducted

a de novo review of those portions of the Report and Recommendation to which Moody

1 The Court deems the objection filed on the day Moody gave it to prison

authorities for mailing. Price v. Philpot, 420 F.3d 1158, 1164 n.4 (10th Cir. 2005) (citing

Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (per curiam)). Moody mailed his

objection on January 7, 2021, and it was received and filed on January 15, 2021. [Doc.

Nos. 15, 15-1].

objected, consistent with 28 U.S.C. § 636(b)(1). Having carefully reviewed Moody’s

habeas petition, Respondent’s motion to dismiss, the Report and Recommendation, and

Moody’s objection, and for the reasons stated below, the Court ACCEPTS and ADOPTS

the Report and Recommendation and DISMISSES Moody’s habeas petition as untimely.

I. BACKGROUND

A. Moody’s State-Court Conviction and Appeal

An Oklahoma County jury found Moody guilty of first-degree murder and

shooting with intent to kill on March 8, 2017, and the state district judge sentenced

Moody to concurrent sentences of life in prison without parole for first-degree murder

and 20 years’ imprisonment for shooting with intent to kill. See Pet. [Doc. No. 1] ¶¶ 1–6.

Moody directly appealed his judgment of conviction and sentence to the Oklahoma Court

of Criminal Appeals (“OCCA”), which affirmed Moody’s judgment and sentence on

November 1, 2018. Id. ¶¶ 8–9; see also Opinion [Doc. No. 1-1]. Moody did not seek

certiorari review in the United States Supreme Court. Pet. ¶ 9(g).

On January 16, 2020, Moody filed a pro se application for postconviction relief in

the state district court.2 Id. ¶ 11; Appl. for Post-Conviction Relief [Doc. No. 1-2]. The

state district court denied Moody’s application on April 16, 2020. Pet. ¶ 11. Moody

appealed that denial to OCCA, and OCCA affirmed the district court’s decision on June

2 The prison mailbox rule does not apply to postconviction filings in Oklahoma

state district courts. Moore v. Gibson, 27 P.3d 483, 484 (Okla. Ct. Crim. App. 2001); see

also Hall v. Ward, 117 F. App’x 18, 20 (10th Cir. 2004) (unpublished). Under Oklahoma

law, an application for postconviction relief is “filed” when it is delivered to the proper

court for filing. Moore, 27 P.3d at 484. Moody’s application was received and filed in the

District Court of Oklahoma County on January 16, 2020. [See Doc. No. 1-2 at 1].

29, 2020. Id.; Order Aff’g Denial of Appl. for Post-Conviction Relief [Doc. No. 1-4].

B. Moody’s Petition for Writ of Habeas Corpus

Moody filed his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 on

July 16, 2020.3 He raises nine grounds for relief. In Ground One, Moody asserts the

evidence at trial was insufficient to support his convictions. Pet. at 4. In Ground Two,

Moody alleges he was denied “an impartial jury comprised of a fair cross-section of the

community.” Id. at 6–7. Moody alleges in Ground Three that the trial court improperly

instructed the jury on flight. Id. at 8. In Ground Four, Moody asserts he is entitled to a

new trial due to cumulative error. Id. at 9. And in Grounds Five through Nine, Moody

alleges numerous instances of ineffective assistance of appellate counsel. Id. at 10–27.

C. The Report and Recommendation

Respondent moved to dismiss the Petition, arguing that the Petition is time-barred

because Moody did not file it within the one-year limitations period established in the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d), and

that there are no grounds to apply equitable tolling or an equitable exception. [See Doc.

Nos. 12, 13]. Moody did not respond to the motion to dismiss.

On December 22, 2020, Judge Mitchell entered a Report and Recommendation,

concluding that Moody’s Petition was time-barred and should be dismissed. Judge

3 The Petition is deemed filed on the day it was given to prison authorities for

mailing. Fleming v. Evans, 481 F.3d 1249, 1255 n.2 (10th Cir. 2007); Hoggro v. Boone,

150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (citing Houston v. Lack, 487 U.S. 266, 270

(1988)). Moody signed and verified the Petition and placed it in the prison mail on July

16, 2021. [See Doc. Nos. 1, 1-5]. Accordingly, it is deemed filed on that date.

Mitchell determined that Moody’s conviction became final on January 30, 2019, when

the 90-day period expired for Moody to seek certiorari review of OCCA’s November 1,

2018 order affirming Moody’s conviction. [Doc. No. 14 at 5–6]. Judge Mitchell

concluded that Moody’s statutory one-year limitations period began to run the next day

and, absent tolling, expired one year later, on January 31, 2020. Id.

Judge Mitchell also determined that the limitations period was tolled from January

16, 2020, when Moody filed his application for postconviction relief, until June 29, 2020,

when OCCA affirmed the trial court’s denial of relief, a total of 165 days.4 Id. at 6–7.

Adding this 165-day period to Moody’s original January 31, 2020 deadline, Judge

Mitchell concluded that Moody’s one-year limitations period expired July 14, 2020,

making his July 16, 2020 Petition untimely. Id. at 7. Judge Mitchell further concluded

that Moody was not entitled to equitable tolling and had not made a credible showing of

actual innocence that would justify an exception to the statutory limitations period. Id. at

8–10. Accordingly, she recommended dismissal of the Petition as untimely.

D. Moody’s Objections

Moody raises several objections to the Report and Recommendation. First, he

objects to the method Judge Mitchell used in calculating the date Moody’s conviction

became final. Second, he argues that he is entitled to equitable tolling of the statute of

limitations. And third, Moody argues that his Petition should be heard on its merits

because he has a viable actual innocence claim. The Court addresses each of these

4 This number accounts for the fact that there were 29 days in the month of

February 2020.

objections below.

II. DISCUSSION

A. Whether Judge Mitchell correctly calculated the date Moody’s conviction

became final.

AEDPA requires an application for a writ of habeas corpus to be filed within one

year of 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.

28 U.S.C. § 2244(d)(1).

In this case, Judge Mitchell concluded that the starting date for the limitations

period is the date Moody’s judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review. [Doc. No. 14 at 5–6]. Moody does not

challenge this conclusion; instead, he contends that Judge Mitchell erred in calculating

the date when Moody’s direct review process expired in that she did not account for the

fact that OCCA allows a party to petition for rehearing within 20 days of OCCA’s

decision. See Obj. [Doc. No. 15] at 1–3. Liberally construed, Moody’s argument appears

to be that his last day to seek certiorari review with the United States Supreme Court (and

thus the date on which his conviction became final) was not 90 days from the filing of

OCCA’s order affirming Moody’s conviction and sentence, but rather 90 days from the

last day Moody could have petitioned OCCA for rehearing. See id.

This argument lacks merit. Supreme Court Rule 13.3 specifically explains how the

petition-for-rehearing process affects a party’s deadline to seek certiorari:

The time to file a petition for a writ of certiorari runs from the date of entry of the

judgment or order sought to be reviewed, and not from the issuance date of the

mandate (or its equivalent under local practice). But if a petition for rehearing is

timely filed in the lower court by any party, or if the lower court appropriately

entertains an untimely petition for rehearing or sua sponte considers rehearing, the

time to file the petition for a writ of certiorari for all parties (whether or not they

requested rehearing or joined in the petition for rehearing) runs from the date of

the denial of rehearing or, if rehearing is granted, the subsequent entry of

judgment.

S. Ct. R. 13.3. Under this rule, only a timely petition for rehearing (or a lower court’s sua

sponte consideration or appropriate consideration of an untimely petition for rehearing)

will extend the deadline for seeking certiorari.

Moody did not file a petition for rehearing with OCCA (timely or otherwise), and

nothing in the record suggests OCCA sua sponte considered rehearing. Accordingly,

under Supreme Court Rule 13.3, Moody’s deadline to seek certiorari review began to run

on November 1, 2018, when OCCA entered its order affirming Moody’s sentence and

conviction. Moody had 90 days from that date, or until January 30, 2019, to petition for

certiorari. See S. Ct. R. 13.1. Moody did not seek certiorari, and therefore Judge Mitchell

correctly determined that Moody’s conviction became final on January 30, 2019. See

Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011); Locke v. Saffle, 237 F.3d

1269, 1273 (10th Cir. 2001) (“Under [§ 2244(d)(1)(A)], a petitioner’s conviction is not

final and the one-year limitation period for filing a federal habeas petition does not begin

to run until . . . after the United States Supreme Court has denied review, or, if no petition

for certiorari is filed, after the time for filing a petition for certiorari with the Supreme

Court has passed.” (citation omitted)). Based on this determination, Judge Mitchell also

correctly concluded that Moody’s one-year statute of limitations began to run the

following day, January 31, 2019, and absent tolling expired one year later, on January 31,

2020. United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003). Moody’s objection is

therefore overruled.

As discussed above, Judge Mitchell further determined that Moody was entitled to

165 days of statutory tolling while Moody’s state application for postconviction relief

was pending. Adding that 165-day period to Moody’s January 31, 2020 deadline, Judge

Mitchell found that Moody’s one-year limitations period expired July 14, 2020. Moody

did not object to Judge Michell’s conclusions on statutory tolling, and the Court therefore

accepts that portion of the Report and Recommendation without further analysis.

B. Whether Judge Mitchell correctly determined that Moody was not entitled to

equitable tolling.

Judge Mitchell concluded that Moody is not entitled to equitable tolling and that

his Petition is time-barred because it was filed on July 16, 2020—two days after the

deadline. Moody objects to this conclusion, arguing that equitable circumstances exist

that support a tolling of AEDPA’s statute of limitations.

To obtain equitable tolling, Moody 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 his federal habeas petition. Holland v. Florida, 560 U.S. 631,

649 (2010) (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)).

Examples of the “rare and exceptional circumstances” for equitable tolling include “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.” Gibson v. Klinger, 232 F.3d 799, 808

(10th Cir. 2000) (internal quotation marks and citations omitted). “Simple excusable

neglect is not sufficient. . . . [A] petitioner must diligently pursue his federal habeas

claims; a claim of insufficient access to relevant law, such as AEDPA, is not enough to

support equitable tolling.” Id. (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96

(1990), and Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)).

Moody offers two reasons why equitable tolling should apply in this case. First,

Moody argues that the limitations period should be extended because his appellate

counsel failed to petition OCCA for rehearing on Moody’s direct appeal. [Doc. No. 15 at

2–3]. The Court does not find this circumstance extraordinary. In Holland, the Supreme

Court reaffirmed its holding that “‘a garden variety claim’ of attorney negligence” will

not equitably toll the statute of limitations. 560 U.S. at 651–52 (quoting Irwin, 498 U.S.

at 96). While “egregious behavior” on the part of an attorney can “create an extraordinary

circumstance that warrants equitable tolling,” id. at 651, Moody has alleged no facts to

show his case involves such an instance of serious attorney misconduct. Moreover, there

is no indication the acts or omissions of Moody’s appellate counsel “stood in [Moody’]s

way and prevented timely filing” of his federal habeas petition. Id. at 649 (cleaned up).

The only consequence of the decision not to seek rehearing was that Moody’s conviction

became final and the statute of limitations began running earlier than it would have

otherwise; it did not prevent Moody from timely filing his habeas petition.

Second, Moody alleges that he is ignorant of the law and was without legal aid in

discerning AEDPA’s requirements. Obj. at 4. However, this Court must follow the Tenth

Circuit, and in the Tenth Circuit it is well recognized that “ignorance of the law, even for

an incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (citation omitted); see also Miller, 141 F.3d

at 978 (equitable tolling not justified by fact that petitioner simply did not know about

AEDPA time limitation). Moody has not raised any convincing reason why this Court

should disregard this well-established rule. For these reasons, the Court overrules

Moody’s objections and finds that Moody is not entitled to equitable tolling of AEDPA’s

limitations period.

C. Whether Judge Mitchell correctly determined that Moody had not presented a

tenable actual innocence claim.

In McQuiggin v. Perkins, the Supreme Court held that “a credible showing of

actual innocence” provides an equitable exception to AEDPA’s statute of limitations. 569

U.S. 383, 392 (2013). “To 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). “[T]enable actual-

innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement

unless he persuades the district court that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.’”

McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).

Judge Mitchell concluded that Moody had not presented new, reliable evidence of

actual innocence. Having reviewed the matter de novo, the Court agrees with Judge

Mitchell’s reasoning and conclusion on this issue. Moody offers nothing more than

speculation that Paula Bradley—an eyewitness who pleaded guilty to being an

“accessory” and stated in her plea that she “drove Nicholas Moody away from the scene

of a murder [she] knew he committed”—might recant that statement and implicate

someone else if she were cross-examined at trial. [Doc. No. 1 at 16, 19]. Not only is this

speculation not evidence (much less new or reliable), the Court is not persuaded that a

reasonable jury hearing this testimony would be unable to find Moody guilty beyond a

reasonable doubt—particularly considering one of the victims identified Moody at trial as

the person who shot him. See id. at 5–6; [Doc. No. 1-1 at 2]. Accordingly, Moody is not

entitled to an exception to AEDPA’s limitations period based on actual innocence.

III. APPEALABILITY

Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts, “[t]he district court must issue or deny a certificate of appealability when

it enters a final order adverse to the applicant.” To obtain a certificate of appealability,

Moody must make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Moody can satisfy this standard by demonstrating that jurists of

reason “could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented are adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation omitted). After considering this Order, the Report and Recommendation, and the

record, the Court finds that reasonable jurists could not debate the Court’s determinations

that Moody’s habeas petition is untimely under § 2244(d)(1)(A) and that he is not entitled

to equitable tolling or an exception based on a credible showing of actual innocence. In

sum, the Court finds that Moody cannot meet the statutory standard in § 2253(c)(2) as

elucidated by governing authority. Because Moody cannot make the required showing,

the Court declines to issue a certificate of appealability.

IV. CONCLUSION

For the reasons stated above, the Court:

(1) ACCEPTS and ADOPTS the Report and Recommendation issued by United

States Magistrate Judge Suzanne Mitchell [Doc. No. 14];

(2) GRANTS Respondent’s Motion to Dismiss Petition for Writ of Habeas

Corpus as Time-Barred [Doc. No. 12]; and

(3) DISMISSES this action as untimely.

IT IS SO ORDERED this 15th day of June 2021.

UNITED STATES DISTRICT JUDGE

11