George v. Whitten

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

GREGORY ALLAN GEORGE, )

)

Petitioner, )

)

v. ) Case No. CIV-20-00108-JD

)

SCOTT NUNN, Warden, )

)

Respondent.1 )

ORDER ADOPTING REPORT AND RECOMMENDATION

Before the Court is a Report and Recommendation issued by United States

Magistrate Judge Suzanne Mitchell on December 16, 2020. [Doc. No. 39]. Judge

Mitchell recommends that the Court grant Respondent’s Motion to Dismiss [Doc. Nos.

35, 36] and dismiss Petitioner Gregory Allan George’s Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 [Doc. No. 23] as untimely. Judge Mitchell also

recommends that the Court deny as moot Mr. George’s motion for leave to conduct

discovery [Doc. No. 38].

Judge Mitchell advised Mr. George of his right to object to the Report and

Recommendation by January 6, 2021. Mr. George filed a timely objection [Doc. No.

1 The Court substitutes Scott Nunn, Warden of the James Crabtree Correctional

Center in Helena, Oklahoma, as Respondent in this action. Mr. George alleges he is

incarcerated at that facility. [Doc. No. 23 at 1]. See Rule 2(a), Rules Governing Section

2254 Cases in the United States District Court (“If the petitioner is currently in custody

under a state-court judgment, the petition must name as respondent the state officer who

has custody.”). Mr. Nunn is the current warden.

40],2 and the Court has therefore conducted a de novo review of those portions of the

Report and Recommendation to which Mr. George objected, consistent with 28 U.S.C.

§ 636(b)(1).

Having carefully reviewed Mr. George’s habeas petition and brief in support, the

parties’ briefing on Respondent’s motion to dismiss, the Report and Recommendation,

and Mr. George’s objection, and for the reasons stated below, the Court ACCEPTS and

ADOPTS the Report and Recommendation as MODIFIED in this Order and DISMISSES

Mr. George’s habeas petition as untimely.

I. BACKGROUND

A. Procedural History

On March 10, 2016, an Oklahoma County jury in Case No. CF-2013-8064 found

Mr. George guilty of one count of indecent or lewd acts with a child under sixteen, and

the state district judge sentenced Mr. George to 28 years’ imprisonment. Am. Pet. [Doc.

No. 23] at ¶¶ 1–6. Mr. George directly appealed his conviction and sentence to the

Oklahoma Court of Criminal Appeals (“OCCA”). Id. ¶¶ 8–9. The OCCA affirmed his

judgment and sentence and denied his request for an evidentiary hearing in a summary

opinion issued September 14, 2017. Id. ¶ 9; see also Summary Opinion [Doc. No. 36-3].

Mr. George did not seek certiorari review in the United States Supreme Court. Am. Pet.

2 The Court deems the objection filed on the day Mr. George 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)). Mr. George mailed

his objection on January 4, 2021, and it was received and filed on January 11, 2021. See

also Rule 3(d) (“A paper filed by an inmate confined in an institution is timely if

deposited in the institution’s internal mailing system on or before the last day for

filing. . . . .”).

at ¶ 9(h).

On April 3, 2018, Mr. George, through counsel, filed a motion in the state district

court to modify his sentence. Id. ¶ 11(a); see also Mot. to Modify Sentence [Doc. No. 36-

4]. The state district court denied that motion on April 19, 2018, after a hearing. Am. Pet.

at ¶ 11(a); Docket [Doc. No. 36-5].

Mr. George then filed a pro se motion to “check-out” transcripts on September 19,

2018, which the state district court denied on October 12, 2018. Am. Pet. at ¶ 11(b);

[Doc. Nos. 36-6, 36-7].

Mr. George filed his first pro se application for post-conviction relief along with a

brief in support and multiple attachments in the state district court on January 11, 2019.3

App. for Post-Conviction Relief [Doc. No. 36-8]; Attachments [Doc. No. 36-9];

Propositions [Doc. No. 36-10]; see also Am. Pet. at ¶ 12. The state responded, and Mr.

George moved to amend and supplement his post-conviction application. [Doc. Nos. 36-

11, 36-12, 36-13]. After denying Mr. George’s motion to amend and a request for post-

conviction counsel, the state district court denied the post-conviction application on April

15, 2019. [Doc. Nos. 36-14, 36-15]. Mr. George, through counsel, appealed the denial to

the OCCA. [Doc. Nos. 36-16, 36-17]. The OCCA affirmed the district court’s denial of

post-conviction relief in an order issued October 23, 2019. [Doc. No. 36-18].

3 The prison mailbox rule does not apply to post-conviction 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 post-conviction relief is “filed” when it is delivered to the proper

court for filing. Moore, 27 P.3d at 484. Mr. George’s application was received and filed

in the District Court of Oklahoma County on January 11, 2019. [See Doc. No. 36-8].

On May 16, 2019, while his post-conviction appeal was pending, Mr. George filed

a second motion to check out transcripts in the state district court. Am. Pet. at ¶ 11(c).

The state district court denied the motion on December 10, 2019. Id. Mr. George

appealed this denial to the OCCA on January 23, 2020, but the OCCA declined

jurisdiction on timeliness grounds in an order issued February 11, 2020. Id. ¶ 11(e); Pet.

in Error [Doc. No. 36-23]; Order [Doc. No. 36-24]. Mr. George petitioned the OCCA for

an appeal out-of-time, but the court dismissed the matter on June 5, 2020. Am. Pet. at

¶ 11(f); Pet. for Out of Time Appeal [Doc. No. 36-26]; Order [Doc. No. 36-27]. Mr.

George also sought relief from the denial of the motion for transcripts in a second

application for post-conviction relief filed on May 13, 2020. [Doc. No. 36-25]. The state

district court denied the second application on September 21, 2020.4 Mr. George

appealed. The OCCA held that his second application was properly construed as an

application for extraordinary relief, and it denied relief on March 1, 2021.5

Meanwhile, on February 6, 2020,6 Mr. George submitted his original habeas

corpus petition in this Court, along with an application for leave to proceed in forma

4 See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&

number=cf-2013-8064. The Court takes judicial notice of Mr. George’s criminal docket

sheet in Oklahoma County District Court Case No. CF-2013-8064. See United States v.

Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial

notice of publicly-filed records in [this] court and certain other courts concerning matters

that bear directly upon the disposition of the case at hand”) (citation omitted).

5 See OCCA Case No. MA-2020-735, https://www.oscn.net/dockets/

GetCaseInformation.aspx?db=appellate&number=MA-2020-735&cmid=129044.

6 Although Mr. George did not verify when he gave the Petition to prison

authorities for mailing, it was post-marked February 6, 2020. [Doc. No. 1 at 26; Doc. No.

pauperis. [Doc. Nos. 1, 2]. The Court denied the in forma pauperis motion on March 12,

2020, and ordered Mr. George to pay the $5.00 filing fee by April 2, 2020. [Doc. No. 9].

When he did not timely pay the filing fee, the Court entered an order and judgment

dismissing this case. [Doc. Nos. 11, 12]. Upon Mr. George’s motion to reconsider and

payment of the filing fee [Doc. Nos. 14, 16], the Court vacated its judgment and referred

this matter to Judge Mitchell [Doc. Nos. 15, 17].

Judge Mitchell granted Mr. George leave to amend his habeas petition [Doc. No.

18], and on July 22, 2020, the Court received and filed his amended petition for writ of

habeas corpus. [Doc. No. 23]. Mr. George also filed a brief in support on August 7, 2020.

[Doc. No. 28].

B. Mr. George’s Claims for Habeas Relief

Mr. George raises twelve grounds for relief in his amended habeas petition. In

Ground One, he asserts his appellate counsel was ineffective. Am. Pet. at 6. In Grounds

Two and Three, he alleges ineffective assistance of trial counsel. Id. at 7–8. In Ground

Four, Mr. George alleges state trial court error, and violations of his state and

constitutional rights, in how evidence was admitted. Id. at 9. He asserts in Ground Five

that the evidence was insufficient to support his conviction. Id. at 10. In Ground Six, Mr.

George alleges “jury misconduct/jury tampering contributed to [his] conviction.” Id. at

11. He asserts in Ground Seven that the state failed to disclose “‘Brady’ information after

a request from defense counsel.” Id. at 12. In Ground Eight, Mr. George asserts trial

1-11]. Accordingly, it is deemed filed on that date. See 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)).

errors “resulted in the conviction of one who is actually innocent.” Id. at 13. Mr. George

argues in Ground Nine that prosecutorial misconduct violated his right to due process and

resulted in his conviction. Id. at 14. In Ground Ten, Mr. George alleges “judicial bias

contributed to [his] conviction.” Id. at 15. He asserts in Ground Eleven that the state trial

court judge’s rulings denied him the right to present a complete defense. Id. at 16. And in

Ground Twelve, Mr. George argues the “accumulation of error warrants reversal.” Id. at

17.

C. The Report and Recommendation

Judge Mitchell ordered Respondent to file an answer, motion, or other response to

Mr. George’s amended habeas petition [Doc. No. 29], and on August 31, 2020,

Respondent moved to dismiss the petition as untimely. [Doc. Nos. 35, 36]. Respondent

contends that Mr. George did not file his original habeas petition 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 that would make his petition timely.

Mr. George filed a response in opposition to the motion to dismiss. [Doc. No. 37].

He acknowledges that he miscalculated when his AEDPA limitations period began to

run, but he asserts that he is entitled to tolling during the periods in which his motions to

check out trial transcripts were pending and when the law library was closed. Mr. George

also maintains that he is actually innocent. Respondent did not file a reply.

Judge Mitchell issued a Report and Recommendation, agreeing with Respondent

that Mr. George’s Petition was time-barred and should be dismissed. Judge Mitchell

determined that Mr. George’s conviction and sentence became final on December 13,

2017, 90 days after the OCCA affirmed his conviction on September 14, 2017. [Doc. No.

39 at 7]. Judge Mitchell concluded that Mr. George’s statutory one-year limitations

period began to run the following day and, absent tolling, expired one year later, on

December 14, 2018. Id.

Judge Mitchell found that Mr. George was entitled to 17 days of statutory tolling

during the time his motion to modify sentence was pending. Id. at 9. Accounting for this

tolling period, Judge Mitchell concluded that Mr. George’s one-year statute of limitations

under AEDPA expired on December 31, 2018. Id. She found no basis to apply additional

statutory tolling based on Mr. George’s motions to check out transcripts and found that

his application for post-conviction relief did not toll the statute of limitations because it

was filed after the AEDPA limitations period had already expired. Id. at 10–11.

Judge Mitchell also concluded that Mr. George was not entitled to equitable

tolling based on his difficulty obtaining trial transcripts or because of periodic closures or

understaffing of the law library. Id. at 13–15. Judge Mitchell further concluded that he

had not made a credible showing of actual innocence that would justify an exception to

the statutory limitations period. Id. at 15–16.

D. Mr. George’s Objections

Mr. George raises three objections to the Report and Recommendation. First, he

objects to the Report and Recommendation’s reliance on May v. Workman, 339 F.3d

1236 (10th Cir. 2003), which states that a motion for transcripts is not a basis for

statutory tolling. [Doc. No. 40 at 1–2]. Second, he argues that law library closures in

December 2018 prevented him from timely filing his first state application for post-

conviction relief. He asserts that he could not mail the application sooner because he

needed the law librarian to verify it. He explains that he was allowed in the library only

on Mondays and that the library was closed on Monday, December 24, 2018, and

Monday, December 31, 2018, for the holidays. [Id. at 2]. Third, Mr. George argues that

there was structural error in his trial and that failure to reverse his conviction would result

in a miscarriage of justice. [Id. at 3–4].

II. DISCUSSION

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).

Judge Mitchell concluded that subsection (A) provides the relevant starting date.

Mr. George did not object to this conclusion, and the Court accepts it without further

analysis.

The OCCA affirmed Mr. George’s sentence and conviction on September 14,

2017. He had 90 days from that date, or until December 13, 2017, to petition the United

States Supreme Court for certiorari. See S. Ct. R. 13.1. Mr. George did not seek

certiorari, and therefore his conviction became final on December 13, 2017, when the

time for seeking direct review expired. 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)).

Mr. George’s one-year statute of limitations began to run the next day, December

14, 2017 and, absent tolling, expired one year later on December 14, 2018. See United

States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003).

A. Statutory Tolling

The AEDPA provides for tolling of the limitation period while “a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending” before the state courts. 28 U.S.C. § 2244(d)(2).

As discussed above, Judge Mitchell determined that Mr. George was entitled to 17

days of statutory tolling while his motion to modify sentence was pending in the state

trial court. Mr. George does not object to this conclusion (and neither does Respondent),

and the Court accepts this portion of the Report and Recommendation without further

analysis.

Judge Mitchell also correctly concluded that Mr. George’s motions to check out

transcripts did not statutorily toll the limitations period. Statutory tolling under the

AEDPA is available only while 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). The Tenth Circuit has repeatedly held that motions to obtain trial

transcripts are not collateral proceedings and therefore do not toll the limitations period

under § 2244(d)(2). See May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (holding

that district court properly determined that AEDPA limitations period was not tolled

during pendency of various motions for transcripts and petitions for writs of mandamus

relating to those motions); Mack v. Falk, 509 F. App’x 756, 758 (10th Cir. 2013)

(unpublished) (same); Osborne v. Boone, 176 F.3d 489 (Table), 1999 WL 203523, at *1

(10th Cir. 1999) (unpublished) (“[A]ttempts to obtain trial records and transcripts at

public expense are not collateral proceedings which would result in the tolling of the

filing period under § 2244(d)(2).”) (citing Hoggro, 150 F.3d at 1226–27).

Mr. George objects to this conclusion, arguing that the Court should not apply

May v. Workman “in a rigid sense of stare decisis,” citing Kotteakos v. United States, 328

U.S. 750 (1946), and should consider the prejudice that resulted from the state trial

court’s denial of his motions for transcripts. But the statute is clear: the limitations period

is tolled only for properly filed applications for state post-conviction relief or other

collateral review of the judgment or claim. Moreover, Mr. George offers no authority

supporting the view that a motion to check out transcripts is a proceeding for collateral

review, nor does he advance any argument that May or the other authorities cited above

were wrongly decided.

Accordingly, the Court overrules Mr. George’s objection. Judge Mitchell correctly

determined that the limitations period was not statutorily tolled while Mr. George’s

motions to check out transcripts were pending.

Judge Mitchell also concluded that statutory tolling was not available while Mr.

George’s application for state post-conviction relief was pending because the application

was filed after the AEDPA limitations period expired. The Court agrees. “Only state

petitions for post-conviction relief filed within the one year allowed by AEDPA will toll

the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); see

also Fisher v. Gibson, 262 F.3d 1135, 1143 (10th Cir. 2001) (statutory tolling not

applicable if petition for post-conviction relief is filed after limitations period). Mr.

George’s application was filed on January 11, 2019—eleven days after the one-year

limitations period expired on December 31, 2018. Because his application was filed after

the expiration of his AEDPA limitations period, it could not statutorily toll that

limitations period.7

B. Equitable tolling

To obtain equitable tolling, Mr. George 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,

7 For the same reason, there is no statutory tolling for Mr. George’s second

application for post-conviction relief, which was filed after his federal habeas petition

and long after the one-year limitations period expired.

649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 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) (citation omitted). 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 “rare and exceptional circumstances” for equitable tolling include

“when a prisoner is actually innocent, 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, 232 F.3d at 808 (cleaned up). “Simple excusable neglect is not

sufficient. Moreover, 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)).

Judge Mitchell concluded that Mr. George’s difficulty obtaining trial transcripts

was not an extraordinary circumstance and that Mr. George had not shown the necessary

diligence, given that he did not request the transcripts until September 2018—nine

months after his conviction was final—and did not seek state post-conviction relief until

after the expiration of the limitations period. [Doc. No. 39 at 13]. Judge Mitchell further

concluded that Mr. George was not entitled to equitable tolling based on his limited

access to the prison law library in December 2018. She reasoned that limited time in the

law library was not an extraordinary circumstance and that Mr. George had not shown

that he took any specific steps to diligently pursue his claims despite the law library’s

intermittent closure. [Id. at 14–15].

Mr. George objects, arguing that he was prejudiced by the lack of access to his

trial transcripts and that closures of the law library in December 2018 prevented him from

filing for post-conviction relief prior to expiration of the AEDPA limitations period on

December 31, 2018. He explains that he was allowed in the library only on Mondays and

that the library was closed on Monday, December 24, 2018, and Monday, December 31,

2018, for the holidays. He asserts that he needed a law librarian to verify his state

application for post-conviction relief and thus could not mail it sooner than he did, on

January 7, 2019.

The Court finds these objections unpersuasive for the same reasons stated in the

Report and Recommendation. With respect to the law library closures, the Court

additionally notes that even if it were true that Mr. George needed a law librarian to

verify his application for state post-conviction relief before it could be filed,8 the Court

would still find that Mr. George had not shown a diligent pursuit of his claims. Facility

officials informed Mr. George on December 17, 2018, that if he “ha[d] and [could] show

a deadline” he would “receive more time to work on [his] case.” [See Doc. No. 37-1 at 4].

8 The OCCA has explained that an application for post-conviction relief is

“verified” if it is signed under penalty of perjury as specified under 12 Okla. Stat. § 426.

See Dixon v. State, 2010 OK CR 3, 228 P.3d 531 n.3. Thus, Mr. George’s application did

not have to be notarized.

But there is nothing before the Court showing Mr. George made any requests for

additional time in the library or made other diligent efforts to submit his application prior

to December 31, 2018.

Furthermore, even if Mr. George had shown a basis for equitable tolling during the

period his application for state post-conviction relief was pending, he waited an

additional three months after the OCCA affirmed denial of post-conviction relief before

filing his federal habeas petition. Mr. George has not pointed to any extraordinary

circumstances that prevented him from filing his habeas petition earlier, nor does he set

forth any specific steps taken by him to diligently pursue his claims after the OCCA

denied post-conviction relief. Under these circumstances Mr. George is not entitled to

equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220–21 (10th Cir. 2000) (holding

that the petitioner failed to show that equitable tolling should apply).

C. Equitable Exception for Miscarriage of Justice

In McQuiggin v. Perkins, the Supreme Court recognized 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 Mr. George has not presented new, reliable

evidence of actual innocence and thus is not entitled to an exception to the limitations

period. [Doc. No. 39 at 15–16]. Mr. George does not specifically object to Judge

Mitchell’s conclusions with respect to his showing of actual innocence. Instead, he argues

that his trial was plagued with structural error—namely, the introduction of child hearsay

evidence—and that failure to reverse his conviction would therefore result in a

miscarriage of justice. [Doc. No. 40 at 3–4].

However, in McQuiggin, the Supreme Court emphasized that “[t]he miscarriage of

justice exception . . . 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].’” 569 U.S. at 394–95 (quoting Schlup, 513 U.S. at 329); see also Schlup,

513 U.S. at 321 (“To ensure that the fundamental miscarriage of justice exception would

remain ‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same

time ensuring that the exception would extend relief to those who were truly deserving,

th[e] Court [has] explicitly tied the miscarriage of justice exception to the petitioner’s

innocence.”). Thus, it is not enough for Mr. George to point to structural error in his trial;

he must make “a credible showing of actual innocence.” McQuiggin, 569 U.S. at 392.

Although Mr. George did not specifically object to the Report and

Recommendation’s conclusion that he had not presented new, reliable evidence of actual

innocence, the Court has reviewed the matter de novo. Having completed that review, the

Court agrees that Mr. George has not made a credible showing of actual innocence.

Mr. George submits the following evidence in support of his actual innocence

claim:

 The results of two polygraph tests administered prior to his trial, one of which

showed results of “non-deceptive” and one of which was “Inconclusive as to

Deception” with regard to questions about Mr. George’s alleged sexual abuse

of victim A.P. [Doc. No. 28-12];

 Two affidavits from Mr. George’s trial counsel stating counsel’s belief in Mr.

George’s actual innocence [Doc. No. 28-9];

 The affidavit of Colleen Folsch, a friend of A.P.’s father, stating her belief

that A.P. was coached to make sexual abuse allegations about Mr. George

[Doc. No. 28-10]; and

 Various emails, text messages, and Facebook posts from A.P.’s father and

step-mother, which Mr. George contends show the pair’s motive to obtain sole

custody of A.P. [Doc. Nos. 37-3, 37-4, 28-2, 28-7].

See also Pet’r’s Br. in Support of Pet. for Habeas [Doc. No. 28] at 16–17, 36–38; Resp. in

Opp. to Mot. to Dismiss [Doc. No. 37] at 6–8.9

The Court is not persuaded that in light of the above evidence no juror, acting

reasonably, would have voted to find Mr. George guilty beyond a reasonable doubt. First,

9 Mr. George also asserts that A.P.’s step-mother, Lahra Crookston, has borderline

personality disorder; that Ms. Crookston made a statement that Mr. George told A.P.’s

father that the alleged sexual abuse did not occur; that an audio recording in which A.P.

described Mr. George’s sexual abuse was pre-planned; and that A.P.’s forensic interview

contained contradictions. However, Mr. George has not provided the Court with evidence

of these facts. And even if he had, the evidence amounts only to impeachment evidence,

not exculpatory evidence. See Stafford v. Saffle, 34 F.3d 1557, 1562 (10th Cir. 1994)

(new evidence was “only impeachment evidence, rather than evidence of actual

innocence”). Further, the record indicates Mr. George’s defense counsel presented or

attempted to present this evidence to the jury, or that the jury heard the information. See

OCCA’s Summary Opinion [Doc. No. 36-3] at 4, 6 & n.3; Pet’r’s Br. [Doc. No. 28] at

19–20, 46–47. Thus, it is not “new.”

the reliability of Mr. George’s polygraph evidence is dubious. In Oklahoma, polygraph

evidence is not admissible for any purpose. See Folks v. State, 207 P.3d 379, 383 (Okla.

Crim. App. 2008). Although the Court is not bound by the rules of admissibility that

would govern at trial, it must still consider the reliability and probative force of that

evidence. Schlup, 513 U.S. at 327. And state and federal courts have consistently

expressed doubts about the reliability of polygraph evidence. See, e.g., United States v.

Scheffer, 523 U.S. 303, 309–12 (1998) (“[T]here is simply no consensus that polygraph

evidence is reliable” . . . . “Although the degree of reliability of polygraph evidence may

depend upon a variety of identifiable factors, there is simply no way to know in a

particular case whether a polygraph examiner’s conclusion is accurate, because certain

doubts and uncertainties plague even the best polygraph exams.”); United States v. Call,

129 F.3d 1402, 1404–05 (10th Cir. 1997) (holding that Daubert standard applied to

polygraph evidence, but cautioning that the Court’s holding “does not suggest a

newfound enthusiasm for polygraph evidence” or “imply that polygraph examinations

satisfy the requirements of Rule 702.”); Burch v. Millas, 663 F. Supp. 2d 151, 195

(W.D.N.Y. 2009) (holding the petitioner could not show his favorable polygraph test

results were reliable new evidence for purposes of demonstrating actual innocence).

Second, the polygraph evidence is itself not consistent. Only the second test indicated

that Mr. George was truthful as to all questions asked of him; the first was inconclusive.

Mr. George’s other evidence goes only to bolstering his own credibility and

calling into question the motives of the witnesses who testified at his trial. “Simply

maintaining one’s innocence, or even casting some doubt on witness credibility, does not

necessarily satisfy [the actual innocence] standard.” Frost v. Pryor, 749 F.3d 1212, 1232

(10th Cir. 2014).

A.P. testified at trial that Mr. George sexually abused her and was subject to cross-

examination about those allegations. Mr. George likewise testified at trial and denied any

inappropriate behavior. See OCCA’s Summary Opinion [Doc. No. 36-3] at 2, 6. The jury

had an opportunity to weigh the credibility of each witness and make a determination.

Under these circumstances, and considering the limited value of the evidence Mr. George

has presented, the Court cannot find that no juror, acting reasonably, would have voted to

find Mr. George guilty beyond a reasonable doubt. Accordingly, Mr. George is not

entitled to an equitable exception to the 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,

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

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

reason could debate whether 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 Mr. George’s habeas petition is

untimely under § 2244(d)(1)(A). Because Mr. George cannot make the required showing,

the Court declines to issue a certificate of appealability.

IV. CONCLUSION

Having carefully and thoroughly considered this matter de novo, and for the

reasons discussed above, the Court:

(1) ADOPTS the Report and Recommendation issued by Magistrate Judge

Suzanne Mitchell [Doc. No. 39], as MODIFIED herein;

(2) GRANTS Respondent’s Motion to Dismiss [Doc. No. 35];

(3) | DISMISSES this action as untimely;

(4) DENIES AS MOOT Petitioner’s Motion for Leave to Conduct Discovery

[Doc. No. 38]; and

(5) DENIES a certificate of appealability.

IT IS SO ORDERED this 31st day of January 2022.

a lek force

UNITED STATES DISTRICT JUDGE

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