Petition for Writ of Certiorari — Eddie Dewayne Lee, Petitioner v. Scott Crow, Director, Oklahoma Department of Corrections

Appellate Case: 21-6028

Document: 010110514816

Date Filed: 04/29/2021

UNXTED-SXAXESCOURT_OILABPEALS.

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

April 29, 2021

Christopher M. Wolpert

Clerk of Court

EDDIE DEWAYNE LEE,

Petitioner - Appellant,

v.

SCOTT CROW,

No. 21-6028

(D.C. No. 5:20-CV-00950-SLP)

(W.D. Okla.)

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MORITZ, BALDOCK, and EID, Circuit Judges.

Petitioner-Appellant Eddie Lee, an Oklahoma state prisoner proceeding pro se, filed

a habeas petition under 28 U.S.C. § 2254 in the Western District of Oklahoma challenging

his sentences for (1) murder in the first degree, (2) two counts of burglary in the first degree,

(3) two counts of rape in the second degree, (4) two counts of forcible oral sodomy, and

(5) robbery with firearms. He pled guilty to these offenses at fifteen years of age and was

subsequently sentenced to two life sentences and 20 years of imprisonment, to be served

consecutively. The district court dismissed Lee’s habeas application as time-barred and

denied a certificate of appealability (“COA”). Now, Lee seeks a COA from this court.

* This order is not binding precedent except under the doctrines of law of the case, res

judicata, and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Document: 010110514816

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■I-f-the-di-str4ct-CQurt-dismisses_aJiabeas_petition on procedural grounds without

reaching the petitioner’s underlying constitutional claims, a COA will issue when the

petitioner shows “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right” and “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Sack v.

McDaniel, 529 U.S. 473, 478 (2000). The petitioner must satisfy both parts of this

threshold inquiry before we will hear the merits of the appeal. Gibson v. Klinger, 232 F.3d

799, 802 (10th Cir. 2000).

For the reasons explained below, no reasonable jurist could conclude the district

court’s procedural ruling was incorrect. Lee’s petition is untimely under 28 U.S.C.

§ 2244(d), and he is not eligible for statutory or equitable tolling. Therefore, exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny his application for a COA and

dismiss this appeal.

* * *

A petitioner must generally seek habeas relief within one year 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

2

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—/-DI-the-date-Qn-which-theJactuaLoredicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). That one-year limitation period is tolled during the time in which

“a properly filed application for State post-conviction or other collateral review” is

pending. 28 U.S.C. § 2244(d)(2). In addition, we may toll the one-year limitation period

“in rare and exceptional circumstances.” See Gi bson, 232 F.3d at 808. A habeas petitioner

is only entitled to equitable tolling, however, “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). “Simple excusable

neglect is not sufficient.” Gibson, 232 F.3d at 808.

Here, Lee argues the one-year limitation period should run from the date the

Supreme Court decided Montgomery v. Louisiana, 577 U.S. 190 (2016), which made the

rule announced in Miller v. Alabama, 567 U.S. 460 (2012), retroactive on state collateral

review. Because Lee’s habeas application is untimely even under his argument, we assume

without deciding that the one-year limitation period ran from the time Montgomery was

decided, on January 25, 2016. Under this assumption, Lee must have filed his habeas

petition by January 25, 2017. He did not file until February 13, 2018, well after the oneyear period expired. Nonetheless, Lee contends his petition is subject to equitable tolling

because he was denied access to his legal materials and the law library.

“Equitable tolling is a rare remedy to be applied in unusual circumstances,” and the

petitioner “bears a strong burden to show specific facts to support his claim of

extraordinary circumstances and due diligence.” Al-Yousif v. Trani, 779 F.3d 1173, 1179

3

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Document: 010110514816

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-(4-Qth Cir.—2QL5-] -(internal-citations _and_quotations_omittedl. “TA1 negations regarding

insufficient library access, standing alone, do not warrant equitable tolling.” \Afeibley v.

Kaiser, 50 F. App’x 399, 403 (10th Cir. 2002) (unpublished). When a petitioner alleges

that prison officials withheld his legal materials, he must provide specific facts to show

how the alleged denial of his legal materials impeded his ability to file a federal habeas

petition. Id.

In this case, Lee submits several articles suggesting the prison he is incarcerated at

had multiple lockdowns between 2015 and 2017. He also provides requests for his legal

materials dated September 17,2017; September 20, 2017; September 26, 2017; October 2,

2017; and October 18, 2017. While these exhibits demonstrate some restriction on Lee’s

ability to access legal research and his legal documents, “[temporary absence of [legal

materials or law library access] does not automatically warrant equitable tolling.” VMnston

v. Allbaugh, 743 F. App’x 257, 259 (10th Cir. 2018) (unpublished). Moreover, prison

officials consistently responded to Lee’s grievances telling him how to access his legal

materials and that legal research would be provided upon request. Even if we assume Lee

could not access his legal materials during September and October 2017 (the months during

which his requests were filed), this only accounts for two months. Lee’s habeas petition

i

We note that Lee’s argument that prison officials withheld his legal materials is better

analyzed as an impediment under 28 U.S.C. § 2244(d)(1)(B), which provides that the oneyear period runs from the date on which the impediment to filing an application created by

state action is removed, if the applicant was prevented from filing by such state action. See

NAfeibley, 50 F. App’x at 403. But in either event, Lee fails to allege specific facts to

demonstrate how the alleged denial of his legal materials impacted his ability to file a

federal habeas petition.

4

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AyasdrledaparoximatelyAhirteenmionths after the one-vear limitation period expired. His

allegations do not evince extraordinary circumstances or due diligence. Accordingly, Lee

is not entitled to equitable tolling.

* * *

For these reasons, no reasonable jurist could conclude the district court’s procedural

ruling was incorrect. We therefore deny Lee’s application for a CO A and dismiss this

appeal. We grant Lee’s motion to proceed in forma pauperis.

Entered for the Court

Bobby R. Baldock

Circuit Judge

5

Appellate Case: 21-6028

Document: 010110526401

Date Filed: 05/24/2021

Page: 1

UNIXED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

May 24, 2021

Christopher M. Wolpert

Clerk of Court

EDDIE DEWAYNE LEE,

Petitioner - Appellant,

v.

No, 21-6028

(D.C. No. 5:20-CV-00950-SLP)

(W.D. Okla.)

SCOTT CROW,

Respondent - Appellee.

ORDER

Before MORITZ, BALDOCK, and EID, Circuit Judges.

Appellant’s petition for rehearing is denied.

Entered for the Court

CD.

CHRISTOPHER M. WOLPERT, Clerk

UNITED STATESCOURT OF APPEALS

FILED

United States Court of Appeal:

____ Tenth Circuit

FOR THE TENTH CIRCUIT

April 8, 2021

Christopher M. Wolpert

Clerk of Court

EDDIE DEWAYNE LEE,

Petitioner - Appellant,

v.

No. 21-6028

(D.C. No. 5:20-CV-00950-SLP)

(W.D. Okla.)

SCOTT CROW,

Respondent - Appellee.

ORDER

This matter is before the court on pro se appellant Eddie DeWayne Lee’s Motion

Challenging Anti-Terrorism and Effective Death Penalty of 1996, which filing th

e court

construes and accepts as Mr. Lee’s combined opening brief and application for certificate

of appealability (“COA”).

The court has before it all of the information it needs to decide whether to g

rant

Mr. Lee a COA and will decide that issue in due course.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

by: Lisa A. Lee

Counsel to the Clerk

Case 5:20-cv-00950-SLP Document 5 Filed 09/23/20 Page 1 of 2

PN-TTIE-UNITEDST-AT-ES-DISTRIC-T-GOURT-FOR-THE

WESTERN DISTRICT OF OKLAHOMA

EDDIE DEWAYNE LEE,

)

)

)

Petitioner,

)

)

)

v.

SCOTT CROW, Director,

)

)

Respondent.

)

Case No. CIV-20-950-SLP

REPORT AND RECOMMENDATION

Petitioner, a pro se state prisoner seeking habeas corpus relief,1 has filed

an application for leave to proceed in forma pauperis. Doc. 2. On review of the

application, the undersigned finds Petitioner has sufficient funds to prepay the

$5 filing fee. Specifically, Petitioner has $973.96 in his institutional accounts.

See id. at 3; id. Atts. 1, 2. Because Petitioner has not shown he is entitled to

authorization by this Court to proceed without prepayment of the $5 filing fee,

see 28 U.S.C. § 1915(a)(1), the undersigned recommends that the Court deny

Petitioner’s application, Doc. 2.

The undersigned further recommends the dismissal without prejudice of

this action unless Petitioner pays the $5 filing fee in full to the Clerk of Court

i

United States District Judge Scott L. Palk has referred this matter to

the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §

636(b)(1)(B), (C). See Doc. 4.

Case 5:20-cv-00950-SLP Document 5 Filed 09/23/20 Page 2 of 2

within—tw-enty-ene—(24-)—days—o£_any_order_adopting this Report and

Recommendation. See Local Civil Rule 3.3(e).

The undersigned advises Petitioner that he may file an objection to this

Report and Recommendation with the Clerk of Court on or before Wednesday,

October 7, 2020. The undersigned further advises Petitioner that failure to

timely object to this Report and Recommendation waives the right to appellate

review of both factual and legal issues contained herein. See M oore v. U nited

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

The undersigned directs the Clerk of Court to transmit a copy of this

Report and Recommendation through electronic mail to the Attorney General

of the State of Oklahoma at the following address: fhc.docket@oag.ok.gov.

This Report and Recommendation disposes of all issues and terminates

the referral to the undersigned Magistrate Judge in this matter.

ENTERED this 23rd day of September, 2020.

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

2

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 1 of 8

«•

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

EDDIE DEWAYNE LEE,

)

)

)

)

)

)

)

)

)

Petitioner,

v.

SCOTT CROW,

Respondent.

Case No. CIV-20-950-SLP

ORDER

Petitioner, Eddie DeWayne Lee, a state prisoner appearing pro se, filed this action

pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus.

He challenges the

constitutionality of his state court convictions and sentences in the District Court of

Oklahoma County, State of Oklahoma, Case Nos. CF-1986-5774, murder in the first

degree; CF-1986-5783, burglary in the first degree; and CF-1986-5788, burglary in the first

degree, two counts of rape in the second degree, two counts of forcible oral sodomy, and

robbery with firearms. Petitioner was 15-years old at the time he committed the offenses.

The state district court sentenced Petitioner to two life sentences and 20 years of

imprisonment, to be served consecutively.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), this matter was referred for initial

proceedings to United States Magistrate Judge Suzanne Mitchell, and later reassigned to

United States Magistrate Judge Amanda Maxfield Green. Judge Green conducted an initial

review of the Petition, see Rule 4 of the Rules Governing § 2254 Cases, and issued a Report

and Recommendation [Doc. No. 10] (R&R) finding the Petition should dismissed as

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 2 of 8

untimely filed under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28

U.S.C. § 2244(d). Judge Green further found that Petitioner is not entitled to statutory or

equitable tolling of the limitations period.

Petitioner timely filed an Objection [Doc. No. 11] to the R&R.1 Thus, the Court

must make a de novo determination of the portions of the R&R to which a specific

objection is made, and may accept, reject, or modify the recommended decision, in whole

or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). As set forth, Petitioner

challenges only Judge Green’s finding that there is no basis for equitable tolling of the

limitations period. Review of all other issues addressed by Judge Green is waived. See

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also United States v. 2121

E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).

The AEDPA imposes a one-year statute of limitations for Section 2254 habeas

petitions brought by state prisoners. See 28 U.S.C. § 2244(d)(1). The period begins to run

from “the latest of’ four dates:

(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;

1 Petitioner’s filing is entitled “Challenging Anti-Terrorism and Effective Death Penalty Act of

1996.” Petitioner mailed his filing on February 11, 2021. See Envelope [Doc. No. 11-2]. The

R&R provides any objections must be filed on or before February 16, 2021. The Court construes

this filing as Petitioner’s timely objection to the R&R.

2

•*

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 3 of 8

(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 could have been discovered through the exercise of due

diligence.

Id. Unless a petitioner alleges facts implicating the provisions set forth in § 2244(d)(1)(B),

(C) or (D), the limitations period generally begins to run from the date on which the

conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).

As stated, Petitioner does not challenge the Magistrate Judge’s finding that, for

purposes of § 2244(d)(1)(A), his conviction became final on March 22, 1987. He further

does not dispute that he did not timely file his Petition on or before April 24, 1997, the

expiration of the one-year period for prisoners, like Petitioner, whose convictions became

final prior to the effective date of the AEDPA. See R&R at 4 (citing United States v. Hurst,

322 F.3d 1256, 1260 (10th Cir. 2003)).2

The Magistrate Judge also addressed the timeliness of the Petition under

§ 2244(d)(1)(C) based on Petitioner’s reliance upon Graham v. Florida, 560 U.S. 48 (2010)

made retroactive by Montgomery v. Louisiana, — U.S.

136 S.Ct. 718 (2016) as grounds

for habeas relief. The Magistrate Judge concluded the Petition was untimely under that

2 As Magistrate Judge Green noted, pursuant to the prison mailbox rule, the Court deems the

Petition filed on June 21, 2018, the day Petitioner signed the Petition and placed it in the prison

mailing system, even though it was received and file-stamped in this Court on June 27, 2018. See

R&R at 3, n. 4.

3

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 4 of 8

triggering provision as well. See R&R at 5-8.3 Petitioner makes no challenge to that

finding.

Additionally, Petitioner does not dispute that he is not entitled to any statutory

tolling of the limitations period. As the Magistrate Judge found, he did not attempt to file

any form of state post-conviction relief until after expiration of the respective limitations

periods and, therefore, he is not entitled to statutory tolling. See R&R at 4-5, 7-8.

Finally, the Magistrate Judge found Petitioner is not entitled to equitable tolling of

the limitations period. Petitioner’s objection is addressed only to the issue of equitable

tolling.

Petitioner argues that his facility has been on lockdown. He also argues his facility

does not have an “individual with some-type knowledge dealing with the Court’s

Procedures or Rules of Law.” See Obj. at 7. He states these factors prohibited his access

to a law library so that he could “work on [his] case” and “make [his] filing in a timely

fashion.” Id. He also points to certain policies of the Oklahoma Department of Corrections

providing for the number of hours per week the law libraries are to be open. These

allegations are missing from the Petition and were not addressed by Magistrate Judge

Green.4

3 As set forth in the R&R, Magistrate Judge Green “assume[d], favorably to Petitioner, that his

argument relies on the new rule of law recognized by Miller [v. Alabama, 567 U.S. 460 (2012)]

and made retroactive by Montgomery.” Id. at 6-7.

4 In the Petition, Petitioner referenced the doctrine of equitable tolling but stated no facts to support

why equitable tolling should apply. Instead, Petitioner argued equitable tolling is warranted

because the “State Court’s opinion involved an unreasonable determination of the United States

Supreme Court’s determination of Graham v. Florida, 560 U.S. 48 (2010) made retroactive by

4

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 5 of 8

Section 2244(d)’s limitations period “may be equitably tolled if the petitioner

‘diligently pursues his claims and demonstrates that the failure to timely file was caused

by extraordinary circumstances beyond his control.’” Loftis v. Chrisman, 812 F.3d 1268,

1272 (10th Cir. 2016) (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).

“Equitable tolling is a rare remedy to be applied in unusual circumstances” and “[a]n

inmate bears a strong burden to show specific facts to support his claim of extraordinary

circumstances and due diligence.” Al-Yousifv. Trani, 779 F.3d 1173,1179 (10th Cir. 2015)

(internal quotation marks and citations omitted)).

“[I]t is well established that ignorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing [of a petition for writ of habeas

corpus].” Marsh, 223 F.3d at 1220 (internal quotation marks and citation omitted).

Moreover, “allegations regarding insufficient library access, standing alone, do not warrant

equitable tolling.” Weibley v. Kaiser, 50 F. App’x 399, 403 (10th Cir. 2002). Petitioner

must provide “specificity regarding the alleged lack of [law library] access and the steps

he took to diligently pursue his federal claims.” Miller v. Marr, 141 F.3d 976, 978 (10th

Cir. 1998). “It is not enough to say that the [prison] facility lacked all relevant statutes and

case law or that the procedure to request specific materials was inadequate.” Id;, see also

Mayes v. Province, 376 F. App’x 815, 816-17 (10th Cir. 2010) (“In order to establish a

Montgomery v. Louisiana, [~ U.S.

136 S.Ct. 718 (2016)] which announced a new rule of

constitutional law applying to cases on collateral review.” See Pet. [Doc. No. 1] at 21 (citing 28

U.S.C. § 2244(d)(1)(C)). Petitioner’s citations reference a triggering date for the commencement

of the statute of limitations period. As set forth, Magistrate Judge Green considered whether the

Petition was timely under § 2244(d)(1)(C) and found it was not - a finding Petitioner does not

challenge.

5

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 6 of 8

violation of the constitutional right of access, an inmate must demonstrate, among other

things, how the alleged shortcomings in the prison actually hindered his efforts to pursue a

legal claim.” (internal quotation marks and citation omitted)).

Additionally, “[w]hile prison lockdowns are uncontrollable, they merely impede

access to the relevant law, which [the Tenth Circuit] ha[s] continuously ruled insufficient

to warrant equitable tolling.” Winston v. Allbaugh, 743 F. App’x 257,258 (10th Cir. 2018)

(citations omitted). Thus, “equitable tolling is not justified by prison lockdowns in the

absence of a showing of additional circumstances that prevented timely filing.” Id. at 259;

see also Jones v. Taylor, 484 F. App’x 241,242-43 (10th Cir. 2012) (although “a complete

denial of access to materials at a critical time may justify equitable tolling” no such tolling

was warranted based on allegations that defendant was “a layman with limited knowledge

of the law”, prison law library had “only some law books on a few shelves”, prisoners

could access law library “only with pre-approval and then only for limited periods of time”

and that “he was denied access to the library during a facility lockdown lasting nearly six

months”).

Here, Petitioner does not provide any specificity with respect to his allegations of

his denial of access to a law library. He does not state whether he requested legal materials,

or what legal materials were needed. He also does not provide any dates as to when he

was denied access. Additionally, Petitioner does not describe the circumstances of the

lockdown or the dates during which he was subject to any lockdown. Finally, Petitioner

fails to show how he otherwise diligently pursued his claims. In this regard, and most

6

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 7 of 8

fundamentally, Petitioner fails to explain why he waited over five and a half years after

Miller and more than one year after Montgomery to pursue his applications for state post­

conviction relief. For all these reasons, Petitioner has not satisfied his strong burden to

demonstrate with specific facts that grounds for equitable tolling of the limitations period

exist.5

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.

10] is ADOPTED and the action is dismissed with prejudice as untimely pursuant to 28

U.S.C. § 2244(d).6 A separate judgment shall be entered accordingly.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 Cases, the Court must issue or deny a certificate of appealability (COA) when

it enters a final order adverse to a petitioner. A COA may issue only upon “a substantial

showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). When the

district court dismisses a habeas petition on procedural grounds, the petitioner must make

this showing by demonstrating both “[1] that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and [2] that

5 Magistrate Judge Green further found no basis to bypass the statute of limitations based on a

fundamental miscarriage of justice and the Court concurs with this analysis. See R&R at 10.

Petitioner raises no objection to this finding.

6 A dismissal on grounds the Petition is untimely should be with prejudice. Taylor v. Martin, 757

F.3d 1122, 1123 (10th Cir. 2014) (denying COA and dismissing appeal of § 2254 habeas petition

dismissed with prejudice as untimely under § 2244(d)); see also Davis v. Miller, 571 F.3d 1058,

1061 n. 2 (10th Cir. 2009) (recognizing that dismissal under Fed. R. Civ. P. 41(b) of § 2254 habeas

petition without prejudice was tantamount to dismissal with prejudice because “the one-year

statute of limitations bars [petitioner] from refiling his [habeas] petition”); Brown v. Roberts, 177

F. App’x 774, 778 (10th Cir. 2006) (“Dismissal of a [§ 2254 habeas] petition as time barred

operates as a dismissal with prejudice^]”).

7

Case 5:20-cv-00950-SLP Document 12 Filed 02/25/21 Page 8 of 8

« ’ ♦.

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that

reasonable jurists would not debate the correctness of the Court’s determinations that the

Petition is time-barred and that Petitioner has not demonstrated any circumstances excusing

the untimeliness of his Petition. The Court therefore denies a COA.

IT IS SO ORDERED this 25th day of February, 2021.

SCOTT L.PALK

UNITED STATES DISTRICT JUDGE

8

Case 5:20-cv-00950-SLP Document 13 Filed 02/25/21 Page 1 of 1

f *

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOM A

EDDIE DEWAYNE LEE,

Petitioner,

v.

SCOTT CROW,

Respondent.

)

)

)

)

)

Case No. CIV-20-950-SLP

)

)

)

)

JUDGMENT

In accordance with the Order entered this 25th day of February, 2021, this matter is

DISMISSED WITH PREJUDICE. Further, a certificate of appealability is denied.

IT IS SO ORDERED this 25th day of February, 2021.

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

HV-^HE-€OURT-OFeRIMINAL-APPEALS

OF THE STATE OF OKLAHOMA

EDDIE DEWAYNE LEE,

,N|?a vL0££™NAL APPEALS

STATE OF OKLAHOMA

OCT -8 2019

)

)

Petitioner,

JOHN D. HADDEN

CLERK

)

)

-vs-

)

No. PC-2019-168

)

THE STATE OF OKLAHOMA,

)

)

Respondent.

)

ORDER AFFIRMING DENIAL

OF POST-CONVICTION RELIEF

The Petitioner has appealed to this Court from an order of the

District Court of Oklahoma County denying his third application for

post-conviction relief in Case Nos. CRF-1986-5774, CRF-1986-5783,

and CRF-1986-5788.

On March 12, 1987, Petitioner entered pleas of guilty to the

charges in all three cases.

In Case No. CRF-1986-5774, Petitioner

was convicted of Murder in the First Degree and was sentenced to life

imprisonment. In Case No. CRF-1986-5783, Petitioner was convicted

of Burglary in the First Degree and was sentenced to twenty years

imprisonment. In Case No. CRF-1986-5788, Petitioner was convicted

and sentenced as follows:

Count 1, Burglary in the First Degree,

No. PC-2019-168, Lee v. State

twenty-years-imprisonment;_Count_27 Rape in the Second Degree,

fifteen years imprisonment; Count 3, Forcible Oral Sodomy, twenty

years imprisonment; Count 4, Forcible Oral Sodomy, twenty years

imprisonment, Count 5, Rape in the Second Degree, fifteen years

imprisonment;

and

Count

6,

Robbery

With

Firearms,

life

imprisonment. The District Court ordered the sentences in all counts

in Case No. CRF-1986-5788 to run concurrently with each other, but

the sentences in the three cases were ordered to run consecutively

with each other. Petitioner was fifteen years old when the crimes in

these cases were committed.

Petitioner did not seek to withdraw his guilty pleas within

applicable time periods, and thus failed to perfect direct appeal

proceedings from his Judgments and Sentences.

Petitioner has

previously filed applications for post-conviction relief that were

denied by the District Court. Relief was also denied on Petitioner’s

post-conviction appeals to this Court. Lee v. State, No. PC-1997-638

(Okl.Cr. May 27, 1997); Lee v. State, No. PC-1997-1620 (Okl.Cr.

December 18, 1997).

Petitioner’s arguments in this matter are primarily based on the

Graham/Miller/Montgomery trilogy of United States Supreme Court

No. PC-2019-168, Lee v. State

-eases—holding—the—Eighth Amend merit's cruel

and

unusual

punishments clause forbids a sentencing scheme that mandates life

in prison without the possibility of parole for all juvenile offenders,

and applying the new substantive rule of constitutional law

retroactively in cases on collateral review.

See Martinez v. State,

2019 OK CR 7, 442 P.3d 154. Petitioner acknowledges that he was

not sentenced to life in prison without the possibility of parole in

these cases; and that he has been considered for parole five times

during his almost thirty-three years of incarceration.

Petitioner

complains that he is not being given a meaningful or realistic

opportunity for release and his parole is not being objectively

reviewed due to the lack of measurable parole guidelines. Petitioner

also complains that he has never been afforded an individualized

sentencing hearing, as discussed in Luna v. State, 2016 OK CR 27,

387 P.3d 956; and Stevens v. State, 2018 OK CR 11, 422 P.3d 741.

Finally, Petitioner claims he was subjected to an unconstitutional

reverse certification process in these cases.

Petitioner has failed to establish entitlement to any relief in

this post-conviction proceeding.

Post-conviction review provides

petitioners with very limited grounds upon which to base a

No. PC-2019-168, Lee v. State

_Gollat€Fal-at4aek-on-their-judgm«nts—iiogan-y—Stater20t3-OK-CR_27

1 3, 293 P.3d 969, 973. All issues that were previously raised and

ruled upon by this Court in Petitioner’s direct appeal are

procedurally barred from further review under the doctrine of res

judicata and all issues that could have been previously raised but

were not are waived for further review. 22 O.S.2011, § 1086; Logan,

supra.

Such issues may not be the basis of a post-conviction

application unless the court finds that there is sufficient reason

why the otherwise procedurally barred or waived issues were not

previously asserted or adequately raised. Id.

First, Petitioner’s claims concerning the constitutionality of his

reverse certification process are waived or procedurally barred

because they could have and should have been raised during his

guilty plea proceedings, in direct appeal proceedings, or in his

previous post-conviction proceedings,

Id.

Second, individualized

sentencing hearings are only applicable to situations where the

State has or is trying to sentence a juvenile offender to life

imprisonment without the possibility of parole. The State has not

and is not trying to sentence Petitioner to life imprisonment without

the possibility of parole and thus his arguments are without merit.

No. PC-2019-168, Lee v. State

-Finally—“

toa

juvenile offender. Graham, 560 U.S. at 74, 130 S.Ct. at 2030; Miller,

567 U.S. at 479, 132 S.Ct. at 2469.” Martinez v. State, 2019 OK CR

7, If 8, 442 P.3d 154, 157.

Based upon the length of Petitioner's

sentences and the current status of the law, we find that Petitioner

has some meaningful opportunity to obtain release on parole in

these cases during his lifetime. Id.

Therefore, the order of the District Court of Oklahoma County

denying Petitioner’s subsequent application for post-conviction

relief in Case Nos. CRF-1986-5774, CRF-1986-5783, and CRF-19865788 should be, and is hereby, AFFIRMED. Pursuant to Rule 3.15,

Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,

App. (2019), the MANDATE is ORDERED issued upon the filing of

this decision with the Clerk of this Court.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this

ftHi day of

2019.

cr

No. PC-2019-168, Lee v. State

towil/vW')

DANAK

, Vice Presiding Judge

GARY L./LUMPKIN, Judge

^<M-rL/oL

ROBERT L. HUDSON, Judge

SCOTT ROWLAND, Judge

ATTEST:

Clerk

PA/F

6

0

- •>

tEWISrPRESIDING^JUDGE, DISSENTING:

I respectfully dissent. This case is effectively indistinguishable

from Martinez v. State, 2019 OK CR 7, in which a majority of the

Court adopted what I regard as an unreasonable application of

clearly established federal law, as set forth in Miller u. Alabama, 567

US 460, 132 S;Ct. 2455, 183 L.Ed.2d 407 (2012), in dealing with

consecutive life-without-parole equivalent sentences.

Petitioner is forty-eight years old. He has served more than 32

years of a life sentence for murder, and has been denied parole five

times. Should he be granted parole on the current life sentence, it

appears that he must serve at least one-third of his consecutive

twenty-year sentence (6 years, 8 months), and one-third of his

consecutive life sentence (15 years), before he is actually eligible for

release from prison on parole. Detwiler v. State, 2019 OK CR 20, ^

2 (Lewis, P.J., dissenting).

Discounting the possibilities that (1) Petitioner receives parole

on each of his remaining sentences on the earliest possible date,

and (2) some five decades of imprisonment would have no negative

impact on his current life expectancy, I conclude that his chances

Lee v. State, No. PC-2019-168

. -•!

of any meaningful opportunity to obtain actual release from prison

on parole are at best slim, and, more realistically, none.

This

life-without-parole-equivalent

punishment*

imposed

without a judicial finding that Petitioner was an irreparably corrupt

or permanently incorrigible juvenile, clearly violates the Eighth

Amendment as interpreted in Miller, even though his sentences

have long been final.

Montgomery v. Louisiana,

US ___, 135

S.Ct. 1546, 191 L.Ed.2d 635 (2015).

Like Judge Kuehn, I would remedy this constitutional error by

affirming the controlling sentence of life imprisonment with the

possibility of parole for murder, and modifying the remaining terms

to be served concurrently. Montgomery, 577 U.S. at

136 S.Ct.

at 736 (holding that a State may remedy a Miller violation, without

“litigating the sentence, by affording the offender an opportunity

for eventual release on parole).

I- .

. #**

KUEHNy-VTPiJTrDISSENTING:

While Petitioner was a juvenile, he received

consecutive

sentences in three cases, totaling two life sentences and a sentence

of twenty years. Taken together, these sentences do not afford

Petitioner a “meaningful opportunity to obtain release based

on

demonstrated maturity and rehabilitation.” Graham v, Florida, 580

U.S. 48, 75 (2010).

Petitioner may not have been specifically sentenced to life

without the possibility of parole, but these sentences will keep

Petitioner iincarcerated beyond any reasonable possibility of release.

Unlike the Majority, I consider the effect of these ssentences in the

aggregate. I continue to maintain that the Supreme Court’s clear

intention is to prohibit lifetime incarceration of persons who

commit

crimes as juveniles, without an individualized determination that

the offender was irreparably corrupt or permanently incorrigible, or

any reasonable chance for release. Martinez v. State 2019 OK CR 7

II 3, 442 P.3d 154, 157-58 (Lewis, P.J., dissenting). I would affirm

the sentence of life imprisonmerit for murder, and modify the other

V

sentences to be served concurrently, thus affording Petitioner an

opportunity for eventual release on parole. Id.,

5, 442 P.3d at 158.

I further disagree with the Majority’s inexplicable conclusion

that Petitioner waived this claim. Petitioner’s claim is explicitly

based on Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama,

567 U.S. 460 (2012), and Mongomery v. Louisiana, 577 U.S.

136

S.Ct. 718 (2016). It is beyond question that these cases were

decided long after Petitioner’s convictions and sentences were

imposed, and after his direct appeal was decided. We cannot fault

Petitioner for failing, in previous proceedings, to bring a claim that

was not then recognized as a ground for relief.

2

FILED IN DISTRICT COURT

OKLAHOMA COUNTY

JAN 11 2019

IN-THEDIST-RICT-COURT-OF-OKLAHOMACOUNTYSTATE OF OKLAHOMA

RICK WARREN

COURT CLERK

EDDIE DEWAYNE LEE,

)

46.

a.k.a. EDDIE DEWAYNE THOMAS

)

Petitioner,

v.

THE STATE OF OKLAHOMA,

Respondent.

)

)

)

)

)

)

)

)

Case Nos. CRF-1986-5774

CRF-1986-5783

CRF-1986-5788

ORDER DENYING THIRD APPLICATION FOR POST-CONVICTION RELTF.F

This matter comes on for consideration of the Petitioner’s third Application for Post-Conviction

Relief filed in the above-referenced case and the State’s Response thereto, and the Court being

folly advised finds as follows:

MATERIALS REVIEWED FOR DECISION

The Court has reviewed the following materials in reaching its decision: Petitioner’s Application

for Post-Conviction Relief, filed February 13, 2018; the State’s Response to Third Application

for Post-Conviction Relief, and attachments thereto, filed March 15, 2018; Petitioner’s

Supplement to Application for Post-Conviction Relief, filed March 23, 2018; Petitioner’s Reply

to State’s Response to Third Application for Post-Conviction Relief, filed March 29, 2018; and

district court files for Oklahoma County Case Nos. CRF-1986-5774, CRF-1986-4783, and CRF1986-5788.

FINDINGS OF FACT

1. On March 12, 1987, Petitioner, represented by counsel, entered pleas of guilty to the crimes

charged in the above-referenced cases1 and was sentenced as follows pursuant to negotiated

plea agreement:

CRF-1986-5774:

1. Murder in the First Degree

Life imprisonment

CRF-1986-5783:

1. Burglary in the First Degree

Twenty (20) years imprisonment

CRF-1986-5788:

1. Burglary in the First Degree

Twenty (20) years imprisonment

Petitioner (DOB 6/19/71) was 15 years old at the time he committed these crimes. He was initially charged as a

juvenile in Oklahoma County Juvenile Petition Nos. JF-1986-1094, JF-1986-1096, and JF-1986-1162. On October

27, 1986, the District Court certified him to stand trial as an adult in each case. Petitioner, by and through counsel,

perfected an appeal to the Court of Criminal Appeals from the certification orders. However, while that appeal was

pending, he entered his guilty pleas to the adult charges. Upon motion of Petitioner, the Court of Criminal Appeals

dismissed the appeals in Case No. J-86-926, with prejudice, on April 20, 1987.

2. Rape in the Second Degree , Fifteen (15) years imprisonment

3. Forcible Oral Sodomy

Twenty (20) years imprisonment

4. Forcible Oral Sodomy

Twenty (20) years imprisonment

5. Rape in the Second Degree

Fifteen (15) years imprisonment

7. Robbery with Firearms

Life imprisonment

In accordance with the plea agreement, the Court ordered all counts in CRF-1986-5788 to be

served concurrently with each other and ordered the three cases to be served consecutively to

each other.---------------------- ------- ---------- -------------------------------3. Petitioner was advised of and acknowledged his right to appeal and the manner in which to

invoke that right. However, he did not seek an appeal.

4. On January 10, 1989, Petitioner, pro se, filed his original Application for. Post-Conviction

Relief. Therein, he raised no legal challenge to his convictions or sentences but merely stated

he would amend the application to present such claims upon receipt of unspecified court

documents. Finding that Petitioner had presented no grounds upon which post-conviction

relief could be granted, the Honorable Thomas C. Smith denied the application on February

28,1989. Petitioner did not seek a post-conviction appeal.

5. On May 7,1997, Petitioner, pro se, filed a Petitioner for Appeal Out of Time in the Court of

Criminal Appeals. On May 16, 1997, he filed a Motion for Leave to File Supplemental

Petition for Appeal Out of Time. Because he had not first sought and been denied relief in the

District Court, the appellate court declined jurisdiction. Lee v. State, No. PC-97-638 (Okl.Cr.

May 27, 1997).

6. On June 10, 1997, Petitioner, pro se, filed his second Application for Post-Conviction Relief

under the guise of his juvenile case numbers. Therein, he raised the following propositions of

error:

Proposition I

Petitioner’s Fifth Amendment privilege against selfincrimination and Sixth Amendment right to counsel were

violated when the trial court based its findings and rulings

upon psychiatric evaluations and testimony that was given

by a court ordered psychiatrist who examined and evaluated

Petitioner with Petitioner ever having been advised of Fifth

Amendment privilege and Sixth Amendment right, and

where the record is silent as to a waiver of these basic

fundamental rights;

Proposition II

The trial court abused its discretion when, in certifying

Petitioner to stand trial as an adult, it rejected overwhelming

2

1

.evidence that Petitioner was amendable to rehabilitation

within the juvenile system and based its decision on personal

opinion and evidence outside of the record and not before the

court; and

Proposition III

Petitioner was deprived of his rights to due process, an

appeal, and effective assistance of counsel on appeal from

the Court of Criminal Appeals dismissal of his juvenile

certification appeal.

7. On June 30, 1997, the Honorable Daniel L. Owens denied the application. Petitioner was

advised of his right to appeal from that decision. But he again failed to seek a post-conviction

appeal.

8. On October 7, 1997, Petitioner, pro se, filed a Petition for Nunc Pro Tunc Order wherein he

essentially reasserted the same claims of error raised in his second post-conviction

application and requested the trial court to withdraw its order denying the same. On October

21,1997, Judge Owens denied the petition.

9. On November 4, 1997, Petitioner, pro se, filed a motion requesting the trial court hold his

time for collateral appeal in abeyance and reconsider its order denying his second

Application for Post-Conviction Relief. Judge Owens denied that motion on November 7,

1997.

10. Petitioner subsequently attempted to appeal the order denying his second Application for

Post-Conviction Relief to the Court of Criminal Appeals. The Court declined jurisdiction

over the untimely appeal. Lee v. State, No. PC-97-1620 (Okl.Cr. December 18, 1997).

11. On February 13, 2018, Petitioner, pro se, filed the instant Application for Post-Conviction

Relief raising the following propositions of error:

1

Proposition I

Petitioner’s sentences are in violation of the Eighth

Amendment as in the U.S. Supreme Court cases of Miller v.

Alabama and Montgomery v. Louisiana;

Proposition II

Lack of sentencing guidelines violates Petitioner’s right to

due process and the declared policy of the State of

Oklahoma;

Proposition III

The trial court violated the separation of powers by failing to

prescribe the standards of rehabilitation that Petitioner must

meet as part of his sentence and thereby impermissibly

delegated its authority to the Executive Branch; and

Proposition IV

There is evidence of material facts, not previously presented

and heard, that requires modification of the sentence in the

3

I

!

!

------------———---- —interests.of_justice„

______

12. On March 23,2018, Petitioner, pro se, filed a Supplement to Application for Post-Conviction

Relief raising the following additional proposition of error:

Proposition V

Petitioner was subjected to a reverse certification process as

a juvenile in violation of the Eighth Amendment as in the

U.S. Supreme Court cases of Miller v. Alabama and

Montgomery v. Louisiana.

FINDINGS OF FACT & CONCLUSIONS OF LAW

C~\

The Court of Criminal Appeals has made clear the Post-Conviction Procedure Act, Title 22 O.S.

§ 1080, et seq., is neitherasubstituteTora direct appeal nor a means for a second appeal: Maines

v. State, 1979 OK CR 71, If 4, 597 P.2d 774, 775-76; Fox v. State, 1994 OK CR 52, J 2, 880 P.2d

383, 384: The scope of this remedial measure is strictly limited and does not allow for litigation

of issues available for review at the time of direct appeal. Johnson v. State, 1991 OK CR 124, flf

3-4, 823 P.2d 370, 372; Castro v. State, 1994 OK CR 53, If 2, 880 P.2d 387, 388. “Issues that

were previously raised and ruled upon are procedurally barred from further review under the

doctrine of res judicata; and issues that were not raised previously on direct appeal, but which

could have been raised, are waived for further review.” Logan v. State, 2013 OK CR 2 f 3 293

P.3d 969, 973.

In regards to subsequent Applications for Post-Conviction Relief, the Act specifically provides:

All grounds for relief available to an applicant under the act must be raised in his

original, supplemental or amended application. Any ground finally adjudicated or

not so raised, or knowingly, voluntarily and intelligently waived in the proceeding

that resulted in the conviction or sentence or in any other proceeding the applicant

has taken to secure relief may not be the basis for a subsequent application,

unless the court finds a ground for relief asserted which for sufficient reason was

not asserted or was inadequately raised in the prior application.

22 O.S. § 1086 (emphasis added).

Sufficient reason for failing to previously raise or adequately assert an issue requires a showing

that some impediment external to the defense prevented the petitioner and counsel from properly

raising the claim. Johnson v. State, 1991 OK CR 124, f 7, 823 P.2d 370, 373. “Petitioner has the

burden of establishing that his alleged claim could not have been previously raised and thus is

not procedurally barred.” Robinson v. State, 1997 OK CR 24, Tf 17, 937 P.2d 101,108.

In this matter, the issues asserted in Propositions II and III could have been raised in a timely

certiorari appeal, which Petitioner effectively forfeited, or in either of his two previous post­

conviction applications. He offers no sufficient reason for this Court to consider those claims.

Propositions II and III are procedurally barred by waiver.

4

-In-Proposition-IV-.-Eet-itiQner-alIeges-there-exists_evidence of material farts, not preyirmsly

presented and heard, that requires modification of his sentence in the interests of justice. See 22

O.S. § 1080(d). While post-conviction relief may be based on newly discovered evidence,

Petitioner presents no such evidence here. Rather, he offers only his own bare statement

regarding proactive steps he has taken towards rehabilitation while incarcerated. Petitioner’s

post-conviction conduct in prison is not material to the validity of his convictions or the

sentences imposed. Proposition IV is meritless.

Propositions I and V are both predicated on intervening changes in constitutional law announced

by the Supreme Court in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407

(2012), and Montgomery v. Louisiana, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016). Because

these cases were decided after Petitioner filed his last post-conviction application, these issues

are viable for review in a subsequent post-conviction proceeding. Stevens v. State, 2018 OK CR

ll, f l87 422 P.3d 741;146-47vseealsdBrys6h v. State, \995 OK CR 57,T2, 903-pT2d'3 J3,

334.

In Miller, the Supreme Court declared that any statutory sentencing scheme that mandates a

sentence of life without parole for a juvenile convicted of a homicide offense is unconstitutional.

Miller, 567 U.S. at 479,132 S.Ct. at 2469. In Montgomery, the Court held that Miller announced

a new, substantive rule of constitutional law that applies retroactively in state post-conviction

proceedings. Montgomery, 136 S.Ct. 718, 734. The Oklahoma Court of Criminal Appeals has

held the principles in Miller and Montgomery apply to Oklahoma’s discretionary sentencing

scheme. Luna v. State, 2016 OK CR 27, ^ 14, 387 P.3d 956, 961.

f

^

As to Proposition I, Petitioner fails to establish that Miller and Montgomery are applicable to

him. Petitioner has not been sentenced to life without parole. See Stevens, 2018 OK CR 11, 26,

422 P.3d at 748 (“To establish a claim under Miller and Montgomery on post-conviction review,

the petitioner must establish that he is serving a sentence of life without parole for a homicide

committed while he or she was under 18 years of age . . .”) (Emphasis added). Rather he was

sentenced to life with the possibility of parole for murder in CRF-1986-5774, twenty (20) years

imprisonment for a non-homicide offense in CRF-1986-5783, and a total of life imprisonment

with the possibility of parole for several non-homicide offenses in CRF-1986-5788. As such, this

matter is distinguishable.

Moreover, even were this Court to consider Petitioner’s sentences in these three separate and

distinct cases in aggregate, Petitioner fails to demonstrate denial of a meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation. See Graham v. Florida, 560

U.S. 48, 75, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010); Budder v. Addison, 851 F.3d 1047

(10th Cir. 2017).

Under 57 O.S. § 332.7, Petitioner is eligible for parole after serving one-tkird of his sentences.

Pursuant to the long-standing policy of the Oklahoma Pardon and Parole Board, a sentence of

life imprisonment is calculated as 45 years for purposes of calculating parole eligibility.2 See

Anderson v. State, 2006 OK CR 6, ^ 24, 130 P.3d 273, 282; Runnels v. State, 2018 OK CR 27, J

2 Thus, Petitioner reaches parole eligibility from his life sentences after, at most, 15 years each and from his 20-year

sentence after approximately 6 years and 8 months.

5

—23^_n.8>_426.£.3.d_61^,_62L_n.8._Indeed. the State has submitted documentation supporting that

the Board has regularly reviewed Petitioner for parole from his life sentence for murder on at

least five separate occasions, beginning in 2001,3 which Petitioner does not refute.

The structure of the sentences imposed in these cases did not constitute a judgment at the outset

that Petitioner would never be fit to reenter society. Petitioner’s sentences are subject to

Oklahoma’s pardon and parole system. “A State is not required to guarantee eventual freedom to

a juvenile offender,” nor does the Eighth Amendment “require the State to release that offender

during his natural lifetime.” Graham, 560 U.S. at 75, 130 S.Ct. at 2030; accord Miller, 567 U.S.

at 479, 132 S. Ct. at 2469; Luna, 2016 OK CR 27,1 7, 387 P.2d at 959. Petitioner fails to show

that his sentences amount to a sentence the Supreme Court has deemed forbidden by the Eighth

Amendment. Proposition I is without merit.

Finally, Petitioner argues in Proposition V that the process by which he was certified to stand

trial as an adult is also violative of Miller. However, Miller did not invalidate Oklahoma’s adult

certification process for juvenile offenders. Indeed, the Supreme Court in Miller recognized the

distinction between the discretion available to a judge at a transfer stage and the discretion

available to the judge at a post-trial sentencing in adult court. Miller, 567 U.S. at 488-89, 132

S.Ct. at 2474-75. Proposition V is meritless.

This Court has disposed of the Petitioner’s application as a matter of law based upon the

pleadings. There is no issue of material fact for which an evidentiary hearing is necessary to

resolve. 22 O.S. § 1084.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petitioner’s third

Application for Post-Conviction Relief is DENIED in its entirety.

CE

JAN 11 20!9

DISTRICT JUDGE

RICK WARREN

NOTICE OF RIGHT TO APPEAL

A final judgment under this act [Post-Conviction Procedure Act, 22 O.S. § 1080, et

seq.] may be appealed to the Court of Criminal Appeals on petition in error filed

either by the applicant or the State within thirty (30) days from entry of the

judgment. Upon motion of either party on filing of notice of intent to appeal, within

ten (10) days of entering the judgment, the district court may stay the execution of the

judgment pending disposition on appeal; provided the Court of Criminal Appeals

may direct the vacation of the order staying the execution prior to final disposition of

the appeal. 22 O.S. § 1087. The party desiring to appeal from the final order must file

a Notice of Post-Conviction Appeal with the Clerk of the District Court within twenty

3 See State’s Exh. 12, Parole Ballots.

6

r'

(20) days from the date the order is filed in the District Court. Rule 5.2(C)(1), Rules of

11urOklahomaCDurtofCriminal^lppealsfTit\t-22TGh.-i8-Appw-(2018).----------------------CERTIFICATE OF SERVICE

I hereby certify that on the I

day of January, 2019,1 mailed a certified copy of the above and

foregoing order, with postage thereon fully prepaid, to:

Eddie D. Lee, DOC #160684

Lawton Correctional Facility

8607 S.E. Flower Mound Rd.

Lawton, OK 73501

PETITIONER, PRO SE

and that a true and correct copy of the above and foregoing order was hand-delivered to:

Jennifer M. Hinsperger, Assistant District Attorney

Oklahoma County District Attorney’s Office

COUNSEL FOR RESPONDENT

Deputy Court Clerk

7