Winfrey v. Louthan

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TED JAMES WINFREY, )

)

Petitioner, )

)

v. ) Case No. CIV-24-310-F

)

DAVID LOUTHAN, )

)

Respondent. )

REPORT AND RECOMMENDATION

Petitioner, a pro se Oklahoma prisoner, seeks habeas relief under 28

U.S.C. § 2254 from his enhanced sentence for his state-court conviction. Doc. 1

at 1.1 He received 160 years’ imprisonment on each of two counts, to run

consecutively. Doc. 12, Ex. 1, at 1; Ex. 2, at 8. United States District Judge

Stephen P. Friot referred the matter to the undersigned for initial proceedings

consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6. Respondent has filed a

motion to dismiss the petition as untimely. Docs 11, 12. The undersigned

recommends the Court grant the motion and dismiss the habeas corpus

petition as untimely filed. See 28 U.S.C. § 2244(d)(1).

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

and pagination. Apart from adjusted capitalizations and unless otherwise

indicated, quotations are verbatim.

I. Procedural history.

On January 6, 2003, an Oklahoma County jury convicted Petitioner of

one count of assault with a dangerous weapon after former conviction of two or

more felonies and one count of kidnapping after former conviction of two or

more felonies. State v. Winfrey, No. CF-2000-1489; see Doc. 12, Exs. 1 & 2.2

The prior felony convictions used to enhance his sentence were for (1) forgery

in the second degree and concealing stolen property (Oklahoma County, No.

CF-1992-7622); and (2) escape from a penal institution (Garfield County,

CF-1993-101). Doc. 12, Exs. 3-4. The Oklahoma Court of Criminal Appeals

affirmed his convictions and sentences in Case No. CF-2000-1489 on

March 18, 2004. Id. Ex. 6.

On March 29, 2005, Petitioner, appearing pro se, sought post-conviction

relief. Id. Ex. 7. The state district court found each of Petitioner’s claims either

procedurally barred or without merit. Id. Ex. 8, at 2-4. Petitioner did not appeal

or challenge this decision. See Id. Ex. 2, at 10-27.

2 The Court takes judicial notice of the state court docket sheets in

Petitioner’s state-court cases. See United States v. Ahidley, 486 F.3d 1184, 1192

n.5 (10th Cir. 2007) (noting “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”).

2

Petitioner sought resentencing in September 2013. Id. Ex. 2, at 18. The

state district court construed Petitioner’s request as a second application for

post-conviction relief and dismissed the application. Id. Ex. 9, at 3.

On January 6, 2022, counsel entered an appearance and filed a second

application for post-conviction relief seeking to vacate Petitioner’s sentence. Id.

Ex. 2, at 24. On April 7, 2022, counsel sought to file an amended application

and later a second amended application. Id. Ex. 2, at 24 & Ex. 11, at 4. Counsel

filed the second amended application on October 20, 2022. Id. Ex. 11.

Post-conviction counsel argued that “recent changes to [ ] Oklahoma

Statutes make it clear, as a matter of law, [Petitioner] had not committed three

district felonies for purposes of enhancement.” Id. at 4. Under counsel’s theory,

the reclassification of many state crimes to misdemeanors included his forgery

and concealing of stolen property convictions. Id. at 4-5. Post-conviction

counsel also suggested his prior escape conviction was also reclassified. Id.

Finally, he argued that the Oklahoma Legislature had retroactively

reclassified these crimes in 2019. Id.

The state district court denied the second amended application on

June 8, 2023. Id. Ex. 12. Reviewing Petitioner’s sole claim on the merits, the

OCCA concluded it “was or could have been raised in previous applications for

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post-conviction relief and is thus barred by res judicata or waived.” Id. Ex. 19,

at 3. So the OCCA affirmed the state district court’s order denying post-

conviction relief.

Petitioner filed this action on March 21, 2024.3 Respondent seeks to

dismiss the petition as untimely, and Petitioner has replied. Docs. 11, 12, & 15.

II. Analysis.

A. Limitations period established by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).

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: “A [one]-year period of limitations 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 limitations 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;

3 The Court liberally construes Petitioner’s pleadings because he proceeds

pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court does not serve as

Petitioner’s advocate. See Hall, 935 F.2d at 1110.

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(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. The statute 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.

Id. § 2244(d)(2).

To meet the “properly filed” requirement, an inmate must comply with

state procedural requirements. Habteselassie v. Novak, 209 F.3d 1208, 1210-11

(10th Cir. 2000) (defining a “properly filed” application as “one filed according

to the filing requirements for a motion for state post-conviction relief” and

giving examples of such requirements).

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A petition filed outside the statute of limitations, accounting for

statutory tolling, will be considered timely filed only “in rare and exceptional

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

(“AEDPA’s one-year statute of limitations is subject to equitable tolling but

only ‘in rare and exceptional circumstances.’” (quoting Davis v. Johnson, 158

F.3d 806, 811 (5th Cir. 1998))).

Unless a petitioner shows otherwise, the limitations period typically

runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See

Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “[A] judgment becomes

final when the defendant has exhausted all direct appeals in state court and

the time to petition for a writ of certiorari from the United States Supreme

Court has expired . . . .” Woodward v. Cline, 693 F.3d 1289, 1292 (10th

Cir. 2012). Petitioner’s conviction became final on June 17, 2004, ninety days

after the OCCA ruled and when his time to petition for a writ of certiorari

expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).

The statutory year 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” by which “the day of the act . . . from which the

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designated period of time begins to run shall not be included”); see also Fed. R.

Civ. P. 6(a)(1) (“When the period is stated in days or a longer unit of time[,]

exclude the day of the event that triggers the period.”).

The OCCA affirmed Petitioner’s convictions on March 18, 2004. His

ninety-day deadline to seek review at the United States Supreme Court

expired on June 17, 2004. See 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did

not seek Supreme Court review, his one-year period to seek a writ of habeas

corpus began to run on June 18, 2004, and, absent tolling, would have expired

on June 20, 2005.4 See Hurst, 322 F.3d at 1260-61.

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

1. Statutory tolling.

The AEDPA allows for tolling of the limitations period while a properly

filed state post-conviction application is pending before the state courts. See 28

U.S.C. § 2244(d)(2). Petitioner filed his first post-conviction application on

March 29, 2005, after 284 days had passed since his conviction became final.

The state district court denied this application on May 26, 2005. Doc. 12, Ex. 8,

at 5. Petitioner neither appealed nor filed a petition in error during his thirty

4 One year after June 18, 2004, was June 18, 2005. Because that date was

a Saturday, Petitioner’s statutory year would have continued to run until the

next Monday, June 20, 2005. See Fed. R. Civ. P. 6(a)(1); LCvR6.1.

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days to do so, which expired on June 27, 2005. See Gibson, 232 F.3d at 807; see

also Fed. R. Civ. P. 6(a)(1).

So Petitioner’s remaining eighty-one days to seek habeas relief began to

run on June 28, 2005, and expired on September 19, 2005. See Fed. R. Civ.

P. 6(a)(1) Petitioner filed no other challenge until he sought resentencing in

September 2013. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001)

(“[Petitioner’s] petitions cannot be tolled for time spent in state post-conviction

proceedings because his applications for post-conviction relief were not filed

until after . . . the end of the limitations period.”). The Court agrees with

Respondent that no other triggering date in § 2244(d)(1) applies to toll

Petitioner’s limitations period. Doc. 12, at 18-26.

To the extent Petitioner believes he is entitled to relief under either

§ 2244(d)(1)(C) or (D), he is mistaken. See Doc. 2, at 5. The change in the law

Petitioner asserted in his second application for post-conviction relief was a

change to an Oklahoma statute—not a constitutional right the Supreme Court

both recognized and made retroactively available to cases on collateral review.

See 28 U.S.C. § 2244(d)(1)(C). And subsection 2244(d)(1)(D) applies “to the date

on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” Id. § 2244(d)(1)(D).

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Notwithstanding Respondent’s arguments that this triggering date would be

earlier than when HB 1269 took effect, the Court concludes the effective date

of the bill’s statutory amendments would be the most generous date to apply

here. As explained above, Petitioner filed nothing until 2022, well beyond the

expiration of the one-year time period. Supra § I.

Petitioner’s argument that the Court should look to the 2019 passage of

HB 1269 for a trigger date also fails. Doc. 1, at 13-14. “Oklahoma state courts,

including the OCCA, that have considered the retroactive effect of HB 1269

have concluded that ‘those already sentenced before the effect of these

measures were to avail themselves of these changes by way of the Pardon and

Parole Board, not Oklahoma’s Post-Conviction Procedure Act.’” Cherry v.

Whitten, No. CIV-20-677-PRW, 2023 WL 4542520, at *5 (W.D. Okla.

July 14, 2023) (quoting Brown v. Farris, 2021 WL 4786411, at *1 (10th Cir.

Oct. 14, 2021)). In any case, Petitioner’s habeas petition would be untimely

even if this Court were to consider the proposed 2019 passage date as the

trigger date under § 2244(d)(1)(D). The Court rejects Petitioner’s argument

that the Oklahoma Legislature’s actions resulted in “immediate[]

commutat[ation]” of sentences such as Petitioner’s. Doc. 15, at 11.

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2. Equitable tolling.

Petitioner filed his petition after the expiration of the limitations period.

Unless equitable tolling applies to save Petitioner’s petition, it is untimely, and

the Court must dismiss it.

“[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) (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)). Even assuming diligent pursuit of the petitioner’s rights,

the one-year period of limitation “is subject to equitable tolling [ ] only in rare

and exceptional circumstances.” Gibson, 232 F.3d at 808 (internal quotation

marks omitted). So 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). And 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 cannot demonstrate he diligently pursued his claims, and he

does not argue he is entitled to equitable tolling beyond restating his

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misunderstanding of the effect of HB 1269. See Doc. 15. Examples warranting

equitable tolling are “when a prisoner is actually innocent,” or “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.” Stanley v.

McKune, 133 F. App’x 479, 480 (10th Cir. 2005) (quoting Gibson, 232 F.3d

at 808). Petitioner has made no such showing. The Court should thus conclude

Petitioner is not entitled to equitable tolling of the limitations period.

3. Actual innocence exception.

Because Petitioner’s statute of limitations has expired, Petitioner’s only

remaining path around the § 2244(d)(1)(A) deadline would be a “credible

showing of actual innocence.” Doe v. Jones, 762 F.3d 1174, 1182 (10th

Cir. 2014) (quoting McQuiggin v. Perkins, 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). And Petitioner “must show that it is more likely than not that no

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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 does not present any new evidence in support of his actual

innocence. He has therefore not put forth a viable actual innocence claim.

III. Recommendation and notice of right to object.

Petitioner filed his habeas corpus petition past the expiration of the

statute of limitations. No tolling, either statutory or equitable, may be applied

to save the petition. The undersigned therefore recommends the Court grant

Respondent’s motion to dismiss the petition as untimely filed.

The undersigned advises Petitioner of his right to file an objection to this

report and recommendation with the Clerk of this Court on or before

October 30, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of

Civil Procedure 72(b)(2). The undersigned further advises Petitioner that

failure to make a timely objection to this report and recommendation waives

the right to appellate review of both factual and legal questions contained

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

This report and recommendation disposes of all issues referred to the

undersigned Magistrate Judge in this matter.

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ENTERED this 9th day of October, 2024.

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SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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