SUZANNE MITCHELL, Magistrate Judge.
Petitioner, a state prisoner appearing pro se, brought this action seeking habeas corpus relief under 28 U.S.C. § 2254. See Doc. 1.
Following an examination of the petition as required by Rule 4, Rules Governing Section 2254 Cases in the United States District Court (Rule 4), the undersigned reported to Chief Judge Heaton that the petition, see Doc. 1, was time-barred and recommended its summary dismissal. See Doc. 9.
In that Report—as relevant to this Supplemental Report regarding Petitioner's entitlement to equitable tolling—after discussing the circumstances under which Petitioner's federal limitations period might be subject to equitable tolling and summarizing the governing legal authority, see id. at 7-8, the undersigned concluded that "Petitioner presents no extraordinary circumstance that prevented his timely pursuit of federal habeas relief." Id. at 8. Likewise, the undersigned singled out Petitioner's "lack of diligence" in filing a conforming application for post-conviction relief. Id. Necessarily then, the undersigned reported to Chief Judge Heaton that Petitioner was not entitled to equitable tolling of his federal period of limitation. See id. at 7-8.
In a timely objection to the Report, Petitioner did not challenge the undersigned's calculation, see id. at 4, that his one-year federal period of limitation began to run on March 6, 2015, and—absent statutory or equitable tolling—expired on March 7, 2016. See Doc. 12, at 1. Likewise, Petitioner did not dispute the undersigned's determination, see Doc. 9, at 4-6, that he was entitled to statutory tolling for the 166 days his motion for suspended sentence pended after his federal period of limitation began to run, thus extending his statutory year to August 20, 2016. See Doc. 12. Furthermore, Petitioner conceded, id. at 2, that he was not entitled to statutory tolling for the time his November 5, 2015, twenty-three-page application for post-conviction relief was pending in the state trial court before that court ordered it stricken on November 17, 2015, "for exceeding [the] page limit." Id. at 1.
And notably, although the undersigned had clearly informed Petitioner regarding the availability of equitable tolling—including precisely what he had to show in order to establish its availability, see Doc. 9, at 7-8,—and although the undersigned had also clearly informed Petitioner that he had the opportunity to "address any arguments related to the statute of limitations issue . . . in an objection to the report and recommendation," id., at 12, 13, Petitioner made no reference either to equitable tolling or to any element of equitable tolling in his objection. See Doc. 12.
Instead, Petitioner took issue with the undersigned's conclusion, see Doc. 9, at 7, that, due to the expiration of Petitioner's extended period of limitation on August 20, 2016, his subsequent application for post-conviction relief—which was not filed until August 25, 2016—did not entitle him to statutory tolling. See Doc. 12. Specifically, Petitioner asserted that after the state district court struck his November 5, 2015, application "for exceeding [the] page limit," id. at 1, he "promptly, in accordance with [the] applicable rule, resubmitted his application with the required Motion to Exceed Page Limit of twenty (20) pages. Rule 37 `Rules of the Seventh and Twenty Sixth Judicial District.'" Id. at 1-2. According to Petitioner, "the prompt refiling of the application along with the motion to exceed page limit was a proper filing by state rules of proce[]dure for post conviction relief submissions." Id. at 2. He claimed "[t]his stopped the tolling clock of the deferral court once again. . . ." Id.
Petitioner further contended that "[i]t was not until August 5, 2016 that the district court of Oklahoma County denied [his] motion to exceed the page limit denying [his] post conviction" and that he "resubmitted his post conviction, and promptly so by August 25, 2016 with his application reduced by the three (3) pages no allowed by the district court." Id.
Chief Judge Heaton initially found the undersigned's "conclusion that petitioner's state applications for post-conviction review do not provide a basis for statutory tolling would ordinarily be correct, for substantially the reasons stated in the Report." Doc. 13, at 3. But observing that "the Report also concluded no basis for equitable tolling was shown," Chief Judge Heaton construed Petitioner's objection as one "tak[ing] issue with that conclusion" and "essentially argu[ing] that his filing of a request for leave to exceed the page limit is a ground for equitable tolling. . . ." Id. Then, on consideration of that argument, Chief Judge Heaton agreed with it and found "[a] pro se litigant could reasonably view the request for leave to exceed the page limit and to, in effect, reconsider the non-complying application, as something that needed to be resolved before further filings or proceedings would be necessary or appropriate." Id.
Chief Judge Heaton also found: (1) "the timing of the state court's disposition of the motion for leave was beyond petitioner's control"; (2) "these circumstances are sufficiently extraordinary to be a basis for equitable tolling"; and (3) "it appears that petitioner promptly and diligently pursued his new state application once the status of the motion for leave was resolved." Id.
Chief Judge Heaton ultimately determined that "a basis for equitable tolling has been shown" and that by adding the 248 days during which Petitioner's "motion for leave was pending with the state court," Petitioner's "August 2016 state post-conviction application [was] timely filed" as was the "present petition" by virtue of statutory tolling. Id.
Chief Judge Heaton then re-referred the matter for further proceedings, see id. at 4, and the undersigned ordered a response to the petition. See Doc. 14.
Despite Chief Judge Heaton's express finding to the contrary, Respondent moved to dismiss the petition as time-barred. See Docs. 18, 19.
Petitioner opposed Respondent's motion, arguing "[i]t is obvious the State is not aware the Court has resolved the preliminary matters of AEDPA applicability already . . . with conclusion by the Chief U.S. District Judge `that both equitable and statutory tolling are applicable.'" Doc. 20, at 1. Petitioner also maintained that "the State, as result of and by the Respondent's failure to properly respond effectively waives any further response to the issues presented by Petitioner, and by this inaction has substantially confessed the matter as stated by Petitioner in his writ." Id. at 2.
Consistent with the undersigned's order, see Doc. 21, Respondent filed a response to Petitioner's reply. See Doc. 22. There, Respondent renewed his motion to dismiss the petition as time-barred and advised that he had not received notice or an opportunity to present his position on the issue of timeliness when this Court resolved that issue in this matter. See id. On review of the record and of Respondent's proof, the undersigned agreed and gave Petitioner twenty-one days to respond to the claims raised in Respondent's supported Motion to Dismiss Petition for Writ of Habeas Corpus as Time Barred. See Doc. 23, at 1. The undersigned informed the parties that "[a]fter the expiration of that or any extended deadline, the undersigned will enter a supplemental Report and Recommendation on the issue of timeliness." Id.
As ordered, Petitioner filed a timely reply to the motion but offered no response to the merits of Respondent's arguments. See Doc. 24. Instead, he essentially repeated the arguments he had raised in his first reply, see Doc. 20, to Respondent's dismissal motion.
Consistent with Rule 4's service requirements, when entering the Report in September 2017, the undersigned instructed the Clerk of Court to forward the Report by electronic means to the Oklahoma Attorney General on behalf of Respondent. See Doc. 9, at 13. But, as stated, in his response to Petitioner's contention that the court should deny Respondent's December 2017 motion to dismiss because Chief Judge Heaton had already resolved the issue of timeliness in his October 2017 order, Respondent informed the court that the "October 19, 2017, Order [Doc. 13], along with the September 1, 2017, Report and Recommendation (Doc. # 9) and Petitioner's October 11, 2017, objection to the Report and Recommendation (Doc. # 12), were never served on Respondent." Doc. 22, at 2. And Respondent attached unassailable proof of his representation. See id. Atts. 1, 2.
Respondent also declared that he "does not affirmatively waive the statute of limitations defense and, because he was never given an opportunity to respond to the issue before it was decided by this Court, has not forfeited the issue for purposes of review." Id. at 2. This argument is well-founded. Respondent had not received notice or an opportunity to present his position on the issue of timeliness when this Court resolved that issue in this matter. See Day v. McDonough, 547 U.S. 198, 210 (2006) ("[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." (emphases added)).
As Petitioner acknowledges, the rationale that Respondent presents in seeking dismissal of the petition on timeliness grounds "is essentially the same as the reasoning applied by the [undersigned] in the Report," with [t]he only difference being a calculation of time variance of a couple of days." Doc. 20, at 1. The same is generally true of Chief Judge Heaton's analysis, with one significant, and here, case dispositive, exception: Chief Judge Heaton found that Petitioner is entitled to equitable tolling of his federal period of limitation. See supra § I(C).
But that conclusion predated any input from Respondent, whose position is that:
Doc. 19, at 11-12.
The undersigned agrees. It was Petitioner—not the state district court judge—who created the "circumstances" Chief Judge Heaton found "sufficiently extraordinary to be a basis for equitable tolling." Doc. 13, at 3. Petitioner did so, first, by filing a non-conforming application for post-conviction relief—it was too long. See Doc. 12, at 1. And, undeniably, he either filed that non-conforming application without adequately informing himself of the applicable rule governing page limitations or without regard for that rule if he was, in fact, aware of it.
The state district court judge promptly struck the non-conforming application. But Petitioner still did not file a proper application. Instead, he asked the state district judge to—in Chief Judge Heaton's words—"reconsider the non-complying application," Doc. 13, at 3 (emphasis added), a motion that "does not technically exist within Oklahoma's statutory nomenclature." Matter of K.S., 393 P.3d 715, 717 (2017).
The fact that the state trial judge did not rule on Petitioner's motion during this period was not an "uncontrollable circumstance [that] prevent[ed Petitioner] from timely filing. . . ." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Even though, as Chief Judge Heaton found, "the timing of the state court's disposition of the motion for leave was beyond petitioner's control," Doc. 13, at 3, the state district judge did nothing to prevent or prohibit Petitioner from properly filing an application for post-conviction relief. It was always within Petitioner's control to file a post-conviction application that complied with the applicable state district court rule. Nothing "stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted).
Furthermore, even if Petitioner thought his "request for leave to exceed the page limit [was] something that needed to be resolved before further filings or proceedings would be necessary or appropriate," Doc. 13, at 3, the state district judge certainly did not lead him to that erroneous conclusion. And, notwithstanding any confusion or misinterpretation
Because Respondent had not received notice or an opportunity to present his position on the issue of timeliness when this Court resolved that issue in this matter, see Doc. 13, the undersigned recommends that Chief Judge Heaton reconsider his finding that equitable tolling applies in this matter. And, for the reasons stated in this Supplemental Report, the undersigned further recommends that Chief Judge Heaton grant Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as Time Barred. Doc. 18.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before June 26, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
