Routt v. Crow
| Decision Date | 27 December 2021 |
| Docket Number | 21-CV-0014-JED-JFJ |
| Court | U.S. District Court — Northern District of Oklahoma |
| Parties | JOHN STEPHEN ROUTT, Petitioner, v. SCOTT CROW, Respondent. |
This matter is before the Court on respondent Scott Crow's motion (Dkt. # 14) to dismiss the petition for writ of habeas corpus (Dkt. # 1) filed by petitioner John Stephen Routt. Crow moves to dismiss the petition as barred by 28 U.S.C § 2244(d)(1)'s one-year statute of limitations. Having considered Crow's brief in support of the motion (Dkt. # 15), Routt's response in opposition to the motion (Dkt. # 18), and applicable law, the Court denies the motion. No later than 30 days after the entry of this opinion and order, Crow shall file a response to the petition, in accordance with Rule 5, Rules Governing Section 2254 Cases in the United States District Courts, and submit any additional state-court records that may be necessary to adjudicate Routt's claims.
Routt a state inmate appearing pro se, seeks federal habeas relief from the judgment entered against him in the District Court of Tulsa County, Case No. CF-2016-4467. In that case, a jury convicted Routt of first degree burglary, unlawful possession of a controlled drug, and threatening an act of violence. Dkt. # 15-1, Routt v. State, No. F-2017-1126 (Okla. Crim. App. 2018) (unpublished) (“OCCA Op.”), at 1-2. The jury recommended sentences of 40 years' imprisonment as to the burglary conviction, 40 years' imprisonment as to the drug-possession conviction, and six months' imprisonment as to the threat conviction. Dkt. # 15-1, OCCA Op., at 2. The trial court sentenced Routt accordingly and ordered that the two 40-year sentences be served concurrently with each other and that the six-month sentence be served consecutively to the first 40-year sentence. Dkt. # 15-1, OCCA Op., at 2.
Routt filed a direct appeal in the Oklahoma Court of Criminal Appeals (“OCCA”). Through counsel, Routt filed an appellate brief asserting eight propositions of error; additionally, he filed a supplemental pro se brief asserting three propositions of error. Dkt. # 15-1, OCCA Op., at 2-3; Dkt. # 15-7, TCDC Order, at 2-3. In an unpublished summary opinion filed December 27, 2018, the OCCA affirmed Routt's judgment and sentence. Dkt. #15-1, OCCA Op., at 1, 19. Routt did not seek further direct review by filing a petition for writ of certiorari in the United States Supreme Court. Dkt. # 1, Pet., at 2.
On April 1, 2019, Routt filed an application for postconviction relief in the District Court of Tulsa County, asserting nine propositions for relief. Dkt. # 15-2, Appl., at 2. In an order filed June 7, 2019, the Tulsa County District Court (“TCDC”) denied Routt's application, finding that Routt waived several claims by failing to raise them on direct appeal and that Routt's remaining claims were without merit. Dkt. # 15-7, TCDC Order, at 3-19. Routt filed a postconviction appeal, and the OCCA affirmed the denial of his application for postconviction relief in an order filed November 20, 2019. Dkt. # 15-12, Routt v. State, No. PC-2019-543 (Okla. Crim. App. Nov. 20, 2019) (unpublished) (“OCCA PC Order”), at 1, 7.
Nearly five months later, on April 8, 2020, Routt filed an application for a writ of habeas corpus, in the District Court of Comanche County, Case No. WH-2020-1, claiming his restraint was unlawful because the trial court erroneously instructed the jury on the definition of reasonable doubt and seeking his immediate release from state custody. Dkt. # 15-13, Habeas Appl., at 1-2. On August 6, 2020, Routt filed a petition for writ of mandamus in the OCCA, seeking an order directing the Comanche County District Court (“CCDC”) to issue a ruling on his habeas application. Dkt. # 15-15, Mandamus Pet., at 1-2. Six days later, on August 12, 2020, the CCDC denied Routt's habeas application, reasoning that Routt's application asserted a trial error that should have been raised on direct appeal. Dkt. # 15-16, CCDC Order, at 1. On Routt's motion, the OCCA issued an order on October 16, 2020, dismissing the mandamus petition as moot. Dkt. ## 15-18, 15-21.
Meanwhile, Routt appealed the CCDC's denial of his habeas application by filing an application for writ of habeas corpus in the OCCA, on September 4, 2020, asserting the same reasonable-doubt-jury-instruction error he presented to the CCDC. Dkt. # 15-19, OCCA Habeas Appl., at 1-2. In an order filed November 4, 2020, in Case No. HC-2020-603, the OCCA denied Routt's habeas application. Dkt. # 15-22, Routt v. Crow, No. HC-2020-603 (Okla. Crim. App. Nov. 4, 2020) (unpublished) (“OCCA Habeas Order”), at 1. The OCCA concluded that Routt failed to show that he was illegally restrained because his judgment and sentence had not been overturned or modified. Dkt. # 15-22, OCCA Habeas Order, at 1-2. Alternatively, the OCCA concluded that Routt's sole basis for seeking habeas relief was “not the proper subject of a petition for writ of habeas corpus” because he could have raised the alleged instruction error on direct appeal and, under Oklahoma law, “the writ of habeas corpus is neither a substitute for, nor an authorization to bypass, the statutory direct appeal or postconviction process for challenging a Judgment and Sentence.” Dkt. # 15-22, OCCA Habeas Order, at 2.
Routt filed the instant federal habeas petition on January 7, 2021. Dkt. # 1, Pet., at 15, 80.[1]
Crow moves to dismiss Routt's petition as barred by 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations. Dkt. ## 14, 15. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a state prisoner generally has one year from the date his or her state-court judgment becomes final, upon the conclusion of direct review, to file a federal habeas petition challenging the constitutional validity of that state-courtjudgment. 28 U.S.C. § 2244(d)(1)(A);[2] Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The one-year limitation period is tolled by statute for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). To obtain the benefit of statutory tolling, the petitioner must file an application for postconviction relief or other collateral review in state court before the one-year limitation period expires. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). And the application for postconviction relief or other collateral review must be “properly filed, ” meaning that the application's “delivery and acceptance [must be] in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Because the AEDPA's one-year statute of limitations is not jurisdictional, federal courts may toll the limitation period for equitable reasons. Holland v. Florida, 560 U.S. 631, 645, 649-50 (2010). To obtain equitable tolling, a habeas petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing” of the federal habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling is considered “a rare remedy to be applied in unusual circumstances.” Al-Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir. 2015) (quoting Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir. 2008)). In addition, courts may excuse noncompliance with the statute of limitations if the petitioner makes “a credible showing of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). But the equitable exception established by Perkins “applies to a severely confined category” of cases, namely, “cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner].'” Perkins, 569 U.S. at 395 (alteration in original) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Crow contends that Routt's petition is untimely under § 2244(d)(1)(A), even with the benefit of statutory tolling, that Routt fails to demonstrate any extraordinary circumstances that would warrant equitable tolling of the one-year limitation period, and that Routt fails to present a credible claim of actual innocence. Routt disagrees, arguing that the petition is timely with the benefit of statutory tolling and, alternatively, that if the petition is untimely, he is entitled to equitable tolling or application of Perkins' equitable exception.[3]
Contrary to Crow's first contention, the petition is timely under § 2244(d)(1)(A). As previously discussed, Routt sought direct review of his state-court judgment by filing a direct appeal in the OCCA, and the OCCA affirmed his judgment on December 27, 2018. Routt had 90 days thereafter to seek further direct review by filing a petition for writ of certiorari in the United States Supreme Court. Gonzalez, 565 U.S. at 150; Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). That 90-day period expired on March 27, 2019, Routt's one-year limitation period commenced the next day, on March 28, 2019, and, absent statutory tolling, his one-year limitation period would have expired on March 30, 2020. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011) ().[4]
But, as both parties agree, Routt is entitled to statutory tolling between April 1, 2019, when he filed his application for postconviction relief in the TCDC, and November 20, 2019 when the OCCA affirmed the denial of his application for postconviction relief. 28 U.S.C. § 2244(d)(2);see Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (...
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