Nolan v. McCollum
| Decision Date | 31 March 2015 |
| Docket Number | Case No. CIV-13-1074-HE |
| Court | U.S. District Court — Western District of Oklahoma |
| Parties | CHARLES WILLIE NOLAN, Petitioner, v. TRACY MCCOLLUM, Warden, Respondent. |
Petitioner Charles Willie Nolan, an Oklahoma state prisoner appearing pro se, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. No. 1, "Petition"). United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b). After examining Petitioner's filings, the undersigned ordered Respondent to answer or otherwise respond to the Petition. Order, Doc. No. 5; see 28 U.S.C. §§ 2241, 2244, 2254; R. 1(a)(1), 4, 5, 7, 8, Rules Governing Section 2254 Cases in the United States District Courts; LCvR 9.2(c). This matter is now before the Court on Respondent's motion todismiss the Petition (Doc. No. 14), which was filed along with a brief in support (Doc. No. 15) and exhibits (Doc. Nos. 15-1 to 15-11).
On January 31, 1989, Petitioner pled guilty to the crime of first-degree murder, as charged against him in the District Court of Tillman County, Oklahoma. State v. Nolan, No. CRF-88-85 (Tillman Cnty. Dist. Ct. filed Nov. 14, 1988); Resp't's Br. Ex. 7, Doc. No. 15-7, at 1 ().2 On March 31, 1989, Petitioner was sentenced to imprisonment for life without parole. See Mar. 31, 1989 Sent'g Tr., Doc. No. 17 (conventionally filed), at 127-29; Resp't's Br. Ex. 7 at 2. Petitioner successfully moved to vacate the judgment and sentence based on the convicting court's failure to properly advise Petitioner of his right to appeal. Resp't's Br. Ex. 7 at 2. On June 2, 1989, Petitioner was resentenced to imprisonment for life without the possibility of parole. See Pet. at 1; June 2, 1989 Sent'g Tr., Doc. No. 17 (conventionally filed), at 2; Resp't's Br. Ex. 7 at 2. Petitioner sought at the second resentencing hearing to withdraw his guilty plea, but his request was denied. Resp't's Br. Ex. 7 at 2; June 2, 1989 Sent'g Tr. at 5. On July 21, 1992, the Oklahoma Court of Criminal Appeals affirmed Petitioner's judgment and sentence and denied Petitioner's petition for a writ of certiorari regarding the denial of his motion to withdraw his guiltyplea. Nolan v. State, No. C-89-857 (Okla. Crim. App. July 21, 1992); Resp't's Br. Ex. 1, Doc. No. 15-1, at 3-4; see also Pet. at 2. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Pet. at 3.
On March 31, 1997, Petitioner filed a first application for postconviction relief in the District Court of Tillman County, which was denied on May 2, 1997. Pet. at 3; State v. Nolan, No. CRF-88-85 (Tillman Cnty. Dist. Ct.); Resp't's Br. Ex. 2, Doc. No. 15-2; Resp't's Br. Ex. 3, Doc. No. 15-3. Petitioner appealed to the Oklahoma Court of Criminal Appeals, which affirmed the denial on July 2, 1997. Pet. at 3; Nolan v. State, No. PC-97-698 (Okla. Crim. App. July 2, 1997); Resp't's Br. Ex. 5, Doc. No. 15-5.
On August 16, 1999, Petitioner filed a second application for postconviction relief in the District Court of Tillman County, which was denied on January 21, 2000. Pet. at 3; State v. Nolan, No. CRF-88-85 (Tillman Cnty. Dist. Ct.); Resp't's Br. Ex. 6, Doc. No. 15-6; Resp't's Br. Ex. 7, Doc. No. 15-7. Petitioner did not appeal the denial. Pet. at 4.
On January 2, 2013, Petitioner filed a third application for postconviction relief in the District Court of Tillman County, which was denied on May 31, 2013. State v. Nolan, No. CRF-88-85 (Tillman Cnty. Dist. Ct.); Resp't's Br. Ex. 8, Doc. No. 15-8; Resp't's Br. Ex. 9, Doc. No. 15-9; see also Pet. at 3-4. Petitioner appealed to the Oklahoma Court of Criminal Appeals, which affirmed the denial on August 15, 2013. Nolan v. State, No. PC-13-617 (Okla. Crim. App. Aug. 15, 2013); Resp't's Br. Ex. 10, Doc. No. 15-10; Resp't's Br. Ex. 11, Doc. No. 15-11; see also Pet. at 4.
Petitioner filed the Petition that is now before the Court on October 7, 2013. Petitioner raises four grounds for relief. See Pet. at 4-8. In explaining the timeliness of his Petition, Petitioner asserts:
All of Petitioner[']s § 2254 Substantive Habeas Claims currently raised in this Petition Grounds One - Four, were fully exhausted within the State Court of Criminal Appeals on post conviction relief. Petitioner has sought no other relief in any other State or Federal Court in these Grounds now presently before this Court. Petitioner[']s § 2254 Habeas Petition is now currently filed with this Court within the Statutory 1 year tolling period or Petitioner has invoked procedural default strategy: actual innocence & fundamental miscarriage of justice exception & cause and prejudice, as a result of ineffective assistance of counsel.
Pet. at 10. Although Petitioner pled guilty before proceeding to trial, Petitioner requests a "new trial." See Pet. at 1-2, 10 (capitalization altered). Petitioner alternatively requests a modification of his sentence or that his conviction and sentence be vacated. Pet. at 11.
In Ground One, Petitioner asserts that he received an excessive sentence because the sentencing court "failed to appropriately consider Petitioner's age and other mitigating evidence." Pet. at 4 (capitalization altered). Petitioner "was 17 years of [age] at the time of the offense and sentencing." Pet. at 4. Petitioner alleges that he received "a sentence of life without the possibility of parole, the state's harshest penalty," despite "the evidence developed at the sentencing hearing through expert testimony that Petitioner was mentally 10 or 11"; the "absence of aggravating factors"; and the "absence of [a] presentenc[e] investigation." Pet. at 4.
In Ground Two, Petitioner contends that he is "factually innocent of the crime of murder in the first degree." Pet. at 5 (capitalization altered). In support of this assertion, Petitioner states:
During the plea allocution Petitioner stated a factual basis for entering a guilty plea to the charge of Murder in the First Degree, as follows: "I robbed him and hit him with a hammer twice." This is far from establishing every element of Murder, which are: (1) death of a human; (2) the death was unlawful; (3) the death was caused by the defendant[;] (4) the death was caused with malice aforethought.
In Ground Three, Petitioner alleges that the District Court of Tillman County lacked jurisdiction "to try Petitioner's case." See Pet. at 6 (capitalization altered). In support of this assertion, Petitioner states:
Former Title 10 OS § 1104.2 provides the jurisdictional predicate for a youth under the age of 18 to be charged as an adult without notice or a hearing. Petitioner was charged with Murder First Degree when he was 17 years old and deemed an adult pursuant to the statute. However, the statute does not pass constitutional muster due to violations of due process and equal protection.
In Ground Four, Petitioner asserts that he was denied the effective assistance of counsel before and while entering his plea of guilty. See Pet. at 8. Petitioner further asserts that he was denied the effective assistance of appellate counsel based on suchcounsel's alleged failure to raise the prior counsel's purported failures when appealing the denial of Petitioner's request to withdraw his guilty plea. See Pet. at 8.
Effective April 24, 1996, a statutory limitation period of one year applies to any "application for a writ of habeas corpus [filed] by a person in custody pursuant to the judgment of a State court." See 28 U.S.C. § 2244(d)(1). For a petitioner whose claims accrued in connection with a conviction that became final before that date, the one-year period began to run as of April 24, 1996, and expired, absent any statutory or equitable tolling, on April 24, 1997. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998).
Liberally construed, Petitioner argues for the applicability of a different accrual date and subsequent limitation period. See Pet. at 3-5; Pet'r's Resp. at 2-3. When the United States Supreme Court newly recognizes a constitutional right and recognizes that right's retroactive applicability to collaterally reviewed cases, the one-year limitation period under 2244(d)(1) is calculated from the date of the Supreme Court's decision initially recognizing the right. 28 U.S.C. § 2244(d)(1)(C). Petitioner asserts that Miller v. Alabama, 132 S. Ct. 2455 (2012), presents such a newly recognized constitutional right that is retroactively applicable to his state court sentence. See Pet. at 3-5; see also Pet'r's Resp. at 3. The Supreme Court decided Miller on June 25, 2012. Thus, the limitation period for claims properly asserted under Miller began to run on June 26, 2012, andexpired, absent any statutory or equitable tolling, on June 26, 2013. See Miller, 132 S. Ct. 2455; 28 U.S.C. § 2244(d)(1)(C).
Petitioner's conviction became final in October 1992.3 As a general matter, Petitioner's limitation period under § 2244(d)(1) began to run on April 24, 1996, and expired, absent any statutory or equitable tolling, on April 24, 1997. See Fisher, 262 F.3d at 1142.4
Section 2244(d)(1)'s one-year limitation period is statutorily tolled during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2). Petitioner filed his first application for postconviction relief in state court on March 31,1997, with 24 days remaining in the § 2244(d)(1) federal limitation period. See Resp't's Br. Ex. 2. The matter was...
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