Ketchum v. Parker

• Decision Date: 22 February 2008
• Docket Number: No. CIV-07-1112-C.,CIV-07-1112-C.
• Citation: 548 F.Supp.2d 1233
• Parties: Rhett Edwin KETCHUM, Petitioner, v. David PARKER, Warden, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

Page 1233

548 F.Supp.2d 1233

Rhett Edwin KETCHUM, Petitioner, v. David PARKER, Warden, Respondent.

No. CIV-07-1112-C.

United States District Court, W.D. Oklahoma.

February 22, 2008.

Rhett Edwin Ketchum, Helena, OK, pro se.

ORDER ADOPTING REPORT AND RECOMMENDATION

ROBIN J. CAUTHRON, District Judge.

This 28 U.S.C. § 2254 action for habeas corpus relief, brought by a state prisoner proceeding pro se, was referred to United States Magistrate Judge Bana Roberts, consistent with the provisions of 28 U.S.C. § 636(b)(1)(B). Judge Roberts entered a Report and Recommendation ("R & R") on January 30, 2008, recommending the Petition be dismissed as untimely. Petitioner filed a timely objection,¹ and the Court therefore considers the matter de novo.

The Magistrate Judge properly raised, sua sponte, the timing of Petitioner's complaint. As Judge Roberts correctly noted, Petitioner's conviction was final on January 16, 2006, and the present action was not filed until October 1, 2007. Thus, the present motion was filed well outside the one year limitations period established by 28 U.S.C. § 2244(d)(1). As noted by Judge Roberts, although Petitioner sought post-conviction relief in the state court, that filing could not toll expiration of the limitations period under the provisions of § 2244(d)(2), because the AEDPA² limitations period had expired prior to filing for state post-conviction relief.

Petitioner has failed to offer any basis to warrant application of the equitable tolling doctrine. "[Equitable tolling] is only available when an inmate diligently pursues his claims and demonstrates 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). As Judge Roberts correctly noted, lack of access to a law library does not provide a basis for equitable tolling. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998). Likewise, Petitioner's argument that he did not have access to legal assistance is unavailing as there is no right to legal assistance when pursuing a habeas action unless the Court determines an evidentiary hearing is needed. Swazo v. Wyoming Dept. Of Corrections, 23 F.3d 332, 333 (10th Cir.1994). Thus, Petitioner's lack of access to legal assistance is not grounds for tolling the limitations period. Finally, Petitioner argues the limitations period should be tolled due to his mental illness. However, Petitioner has offered no evidence supporting his claim. Thus, that claim cannot serve as a basis for equitable tolling. See Miller, 141 F.3d at 977 (petitioner bears the burden of demonstrating the circumstances that justify equitable tolling.)

As set forth more fully herein, Petitioner has failed to offer any basis to reject the Report and Recommendation of the Magistrate Judge. Accordingly, the Court adopts, in its entirety, the Report and Recommendation (Dkt. No. 12) of the Magistrate Judge, and for the reasons announced therein, this petition for habeas corpus relief is DISMISSED, as untimely. Because no amendment can cure the defect, this dismissal acts as an adjudication on the merits. A judgment will enter accordingly.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

BAN A ROBERTS, United States Magistrate Judge.

Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). In accordance with Rule 4, Rules Governing Section 2254 Cases, the petition has been promptly examined, and for the following reasons, it is recommended that the petition be dismissed as untimely filed under 28 U.S.C. § 2244(d)(1)(A).

Petitioner purports to challenge his convictions and sentences entered January 4, 2006, pursuant to a plea of nolo contendere to charges of two counts of first degree rape (Counts One and Two), one count of first degree burglary (Count Three) and one count of second degree burglary (Count Four).¹ Case No. CF-2004-3110, District Court of Oklahoma County. Petition at 1. Petitioner was sentenced to twenty years imprisonment for each rape offense and ten years for first degree burglary and the court ordered that these three sentences be served consecutively to each other; Petitioner was also sentenced to seven years imprisonment on the second degree burglary offense, to be served concurrently with the other three sentences. Petition, attached Judgment and Sentence, District Court of Oklahoma County, case No. CF-2004-3110.

In his petition, Petitioner raises four grounds for relief, which have been liberally construed to allege: (1) Petitioner's attorney, a public defender, coerced him into entering a plea of nolo contendere and although Petitioner attempted to appeal by writing a letter to the court, his attorney failed to withdraw the plea; (2) Petitioner's attorney rendered ineffective assistance by failing to communicate with him following the January 4, 2006, sentencing and by abandoning Petitioner's case; (3) Petitioner was denied his right to appeal his conviction even though at sentencing he verbally indicated that he wanted to appeal; and (4) there was insufficient evidence to support his convictions based on the victim's "pretrial" testimony that she consented to Petitioner's presence in her home and further admitted that "nothing was stolen."

Discussion

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is under an obligation to review habeas petitions promptly and to summarily dismiss a petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief...." The issue of timeliness may be raised sua sponte by the Court. See Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006) ("[District courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition."); see also Hare v. Ray, No. 00-6143, 2000 WL 1335428 (10th Cir.Sept.15, 2000) (unpublished decision)² (affirming court's sua sponte dismissal of habeas corpus petition as untimely under Rule 4).³

The undersigned has reviewed the petition and the attached materials, as well as the district court docket available online as part of the public record of proceedings in Petitioner's criminal case. Based on those materials, the undersigned finds that all of the dates relevant to the timeliness issue are a matter of public record, including the date of final conviction and the dates necessary for consideration of statutory tolling. Moreover, Petitioner apparently recognizes that timeliness is an issue because in response to the question on the habeas form regarding the timeliness of the petition, he essentially argues that the one-year limitation period should be equitably tolled because he has not had adequate access to a prison law library and because he did not commit the rape offense for which he was convicted. Petition at 13.⁴ For the following reasons, the undersigned finds that the petition is untimely under 28 U.S.C. § 2244(d)(1)(A), and Petitioner is not entitled to equitable tolling.

Discussion

Pursuant to 28 U.S.C. § 2244(d)(1), "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court," running 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

(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)(A)-(D). As a general rule, the period of limitation under this statute runs from the date the judgment became "final" as provided by Section 2244(d)(1)(A), unless the petitioner alleges facts that would implicate the provisions set forth in Section 2244(d)(1)(B), (C), or (D) above. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.2000).⁵

Applying the provisions of § 2244(d)(1)(A) to the instant case, the undersigned concludes that this habeas petition was filed after the expiration of the one-year limitations period. Petitioner states and the Oklahoma County docket shows, see supra Note 1, that following Petitioner's plea of nolo contendere in Case No. CF-2004-3110 and his sentencing on January 4, 2006, he did not move to withdraw his pleas within the ten-day period provided by Oklahoma law.⁶ See also Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals (OCCA) (to appeal from a conviction on a plea of guilty or nolo contendere the defendant must file an application to withdraw the plea within ten days from the date of the pronouncement of the judgment and sentence). Therefore, Petitioner's convictions became final on Monday, January 16, 2006, because January 14, 2006, was a Saturday. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.2001) (petitioner's guilty plea convictions were not appealed and, therefore, became final ten days after entry of the judgment and sentence) (citing Okla. Stat, tit. 22, § 1051; OCCA Rule 4.2). As a result, under 28 U.S.C. § 2244(d)(1)(A), Petitioner had until January 16, 2007, to file his federal habeas petition. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir.2003) (holding that one-year limitation period under § 2244(d)(1) expires on anniversary date of the triggering event)....