RONALD A. WHITE, District Judge.
This action is before the Court on the Oklahoma Attorney General's motion to dismiss Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as barred by the statute of limitations (Dkt. 12).
Petitioner alleges the State of Oklahoma lost its jurisdiction to try him for the Muskogee County offenses when it allowed the federal government to try and convict him for federal charges while the state proceedings were pending. He maintains that while his federal prosecution was proceeding, the State was required to try and sentence him for the Muskogee County charges or to discharge the state indictment.
Respondent alleges the petition was filed beyond the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
28 U.S.C. § 2244(d).
The record shows Petitioner's convictions were affirmed on direct appeal to the Oklahoma Court of Criminal Appeals ("OCCA"), and four of his sentences were modified in McIntosh v. State, No. F-92-949 (Okla. Crim. App. Dec. 22, 1994) (Dkt 13-2). His convictions became final on March 22, 1995, upon expiration of the 90-day period for a certiorari appeal to the United States Supreme Court. See Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir. 2007); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. Jan. 31, 2001) (holding that a conviction becomes final for habeas purposes when the 90-day period for filing a petition for a writ of certiorari to the United States Supreme Court has passed). Because Petitioner's convictions became final before enactment of the AEDPA on April 24, 1996, he had until April 24, 1997, to initiate this habeas corpus action. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998).
On July 21, 2015, more than 18 years after the habeas deadline had passed, Petitioner filed his first application for post-conviction relief in the Muskogee County District Court, raising the jurisdictional claim presented in this habeas petition (Dkt. 13-3). On April 13, 2016, the state court set forth the facts of Petitioner's criminal proceedings and denied relief:
(Dkt. 13-4 at 2).
The OCCA affirmed the denial on July 1, 2016, in Case No. PC-2016-343 (Dkt. 13-5), finding Petitioner had waived his claim by failing to raise it in his direct appeal:
McIntosh v. State, No. PC-2016-343, slip op. at 3-4 (Okla. Crim. App. July 1, 2016) (Dkt. 13-5).
Petitioner's post-conviction application was filed after the one-year limitation period had expired. Thus, there is no statutory tolling under 28 U.S.C. § 2244(d)(2). See May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (citing § 2244(d)(2)). This habeas petition, filed on September 12, 2016 (Dkt. 1), is untimely.
In his response to the motion to dismiss, Petitioner restates his position that a court's jurisdiction cannot be interrupted, and he complains that the state courts did not address the merits of his claim in his post-conviction proceedings (Dkt. 14). He insists this Court has a "special obligation" to question the jurisdiction of the Muskogee County District Court, and he asserts he is allowed to bring a jurisdictional question through a post-conviction application with no time limitation. Id. at 2-4.
The fact that the Oklahoma Post-Conviction Procedures Act has no statute of limitations for filing post-conviction applications has no effect on the AEDPA's one-year statute of limitations, except for statutory tolling pursuant to 28 U.S.C. § 2244(d)(2). The Tenth Circuit and district courts have held that jurisdictional claims are subject to ADEPA's time limit. See Morales v. Jones, 417 Fed. App'x 746, 749 (10th Cir. Mar. 28, 2011) (unpublished) ("As with any other habeas claim [a claim of absence of jurisdiction] is subject to dismissal for untimeliness."). C.f. United States v. Patrick, 264 Fed. App'x 693, 694-95 (10th Cir. Feb. 6, 2008) (unpublished) (affirming district court's dismissal of untimely § 2255 petition challenging convicting court's jurisdiction).
To the extent Petitioner is asking for equitable tolling of the one-year statute of limitations, such tolling is available "only in rare and exceptional circumstances." York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003). "A 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. at 418 (2005)) (internal quotation marks omitted).
Petitioner complains of delays in the disposition of his post-conviction application and of the state court's denial of his request for post-conviction counsel (Dkt. 14-5 at 5-6). These allegations, however, do not explain Petitioner's delay in commencing his post-conviction proceedings. Furthermore, "[t]here is no constitutional right to an attorney in state postconviction proceedings." Coleman v. Thompson, 501 U.S. 722, (1991).
Petitioner also asserts his trial counsel never responded to his October 1996 letter inquiring about detainers and writs of habeas corpus ad prosequendum. Id. at 7. He further claims his appellate counsel abandoned him by taking a job with the OCCA before the direct appeal was decided. Id. at 8.
The Court finds Petitioner's allegations do not demonstrate "rare and exceptional circumstances" warranting equitable tolling. He has provided no authority for requiring trial counsel to answer a letter almost two years after the conviction was affirmed. Appellate counsel perfected Petitioner's direct appeal, and as a result, the OCCA modified four of his sentences. McIntosh, No. F-92-949, slip op. at 3 (Dkt 13-2). Petitioner was not entitled to further representation, and he has not shown any evidence that there was an agreement or understanding that counsel would continue to represent him. More important, Petitioner has failed to explain his lack of diligence in waiting until 2015 to file his post-conviction application.
Petitioner's claim that he has not had access to Oklahoma law while in federal custody also is insufficient to establish equitable tolling. "A claim of insufficient access to relevant law . . . is not enough to support equitable tolling," Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)). Further, Petitioner has "provided no specificity regarding the alleged lack of access" and how it affected his delay." Miller, 141 F.3d at 978. See Burris v. McCollum, Case No. CIV-16-470, 2016 WL 3200205, at *3 (W.D. Okla. May 17, 2016) (unpublished) (report and recommendation holding that petitioner's conclusory allegations about access to the law library failed to demonstrate that for a period spanning 16 years petitioner was diligent in pursuing his rights), adopted by district court, 2016 WL 3200297 (June 8, 2016), certificate of appealability denied, 663 Fed. App'x, (10th Cir. Sept. 29, 2016). The Court finds there is no basis for equitable tolling of Petitioner's limitation period. Therefore, the petition is time-barred.
The Court further finds Petitioner has failed to make a "substantial showing of the denial of a constitutional right," as required by 28 U.S.C. § 2253(c)(2). In addition, he has not shown "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether [this] court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate of appealability cannot be issued.
