Potter v. Quick

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KELLY POTTER, 	)
)
Petitioner, 	)
)
v. 	) 	No. CIV-26-286-PRW
)
CHRISTE QUICK, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner Kelly Potter, an Oklahoma state prisoner appearing pro se,
seeks a writ of habeas corpus. See Doc. 1.1 United States District Judge Patrick
R. Wyrick has referred this matter to the undersigned Magistrate Judge for
initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. After a
careful examination of the 	petition, 	as required by Rule 4 of 	the Rules
Governing Section 2254 Cases in the United States District Courts (Rule 4),
the undersigned recommends dismissal of this habeas corpus petition as
untimely. See 28 U.S.C. § 2244(d)(1).
I. 	Screening.
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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Rule 4 requires this Court to promptly review habeas petitions and
promptly dismiss a petition “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing § 2254 Cases. This rule allows the Court to sua
sponte 	raise 	the 	timeliness 	of 	a 	petition 	for 	writ 	of 	habeas 	corpus 	if
untimeliness is “clear from the face of the petition.” Kilgore v. Att’y Gen. of
Colo., 519 F.3d 1084, 1085 (10th Cir. 2008); see also Day v. McDonough, 547
U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not obliged, to
consider, sua sponte, the timeliness of a state prisoner’s habeas petition.”).
“[B]efore acting on its own initiative, a court must accord the parties fair notice
and an opportunity to present their positions.” Day, 547 U.S. at 210.
Petitioner will not be prejudiced, as he has an opportunity to present his
position by objecting to this Report and Recommendation. See Allen v. Zavaras,
568 F.3d 1197, 1202-03 (10th Cir. 2009) (upholding district court’s sua sponte
dismissal of habeas petition for failure to exhaust state court remedies where
district court had allowed petitioner “an opportunity to respond to a problem
obvious from the face of his pleadings,” as required by Day).
II. 	Procedural history and Petitioner’s claims.
Petitioner seeks habeas corpus relief from his sentence for two counts of
robbery with a dangerous weapon in Oklahoma County District Court, Case
No. CF-2009-4983. See Doc. 1, at 1; see also State v. Potter, et al., No. CF-2009-
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4983,
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb
er=CF-2009-4983&cmid=2512884 	(last 	visited 	April 	22, 	2026).2 Petitioner
entered a guilty plea on the two counts and the trial court sentenced Petitioner
to twenty years’ imprisonment on each count, to be served concurrently. Id.
(docket entry dated Oct. 4, 2010). Petitioner 	did not 	move to 	appeal or
withdraw the plea. Id. (see docket generally).
Petitioner filed his habeas petition on February 17, 2026, raising one
ground for relief:
His 20-year sentence . . . is illegal as it (a) exceeds the
statutory 	maximum 	penalty 	for 	the 	offense 	of
conviction 	and 	(b) 	is 	based 	on 	a 	fundamental
misapplication 	and 	misinterpretation 	of 	the
enhancement statute.
Doc. 1, at 2-4.
III. 	Analysis.
A. 	Limitations period established by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).
The AEDPA established a one-year limitation period during which an
inmate in state custody can file a federal habeas petition challenging a state
2 	The 	undersigned 	takes 	judicial 	notice 	of 	Petitioner’s 	state 	court
proceedings. United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
(courts have “discretion to take judicial notice of publicly-filed records . . .
concerning matters that bear directly upon the disposition of the case at
hand”).
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conviction: “A [one]-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.” 28 U.S.C. § 2244(d)(1). The act provides four alternative starting
dates for the limitation period:
The limitation period shall run 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.
Id.
It also includes a tolling provision for properly filed post-conviction
actions:
The 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 shall not be counted toward any
period of limitation under this subsection.
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Id. § (d)(2). To meet the “properly filed” requirement, an inmate must comply
with state procedural requirements. Habteselassie v. Novak, 209 F.3d 1208,
1210-11 (10th Cir. 2000) (defining a “properly filed” application as “one filed
according to the filing requirements for a motion for state post-conviction
relief” and giving examples of such requirements).
A 	petition 	filed 	outside 	the 	statute 	of 	limitations, 	accounting 	for
statutory tolling, will be considered timely filed only “in rare and exceptional
circumstances.” 	Gibson 	v. 	Klinger, 	232 	F.3d 	799, 	808 	(10th 	Cir. 	2000)
(“AEDPA’s one-year statute of limitations is subject to equitable tolling but
only ‘in rare and exceptional circumstances.’” (quoting Davis v. Johnson, 158
F.3d 806, 811 (5th Cir. 1998))).
B. 	Petitioner’s deadline to file for habeas corpus relief.
Unless a petitioner shows otherwise, the limitations period typically
runs from the date the judgment becomes “final” under § 2244(d)(1)(A). Preston
v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “[A] judgment becomes final
when the defendant has exhausted all direct appeals in state court and the
time to petition for a writ of certiorari from the United States Supreme Court
has expired (which is 90 days after the decision by the State’s highest court).”
Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).
Petitioner was sentenced on October 4, 2010, and he did not timely apply
to withdraw his guilty plea, so his conviction became final on October 14, 2010.
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See Jones v. Patton, 619 F. App’x 676, 678 (10th Cir. 2015) (“If a defendant does
not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma
criminal convictions become final ten days after sentencing.”) (first citing
O KLA . STAT . tit. 22 § 1051; then citing Rule 4.2, Rules of the Oklahoma Court
of Criminal Appeals (OCCA), Title 22, Ch. 18, App.). Petitioner’s “failure to
appeal to the OCCA meant that he could not seek certiorari review from the
United States Supreme Court, and he therefore is not entitled to a 90-day
extension to file a petition for certiorari.” Id. at 679 (citing 28 U.S.C. § 1257(a)).
As a result, the limitation period for Petitioner to file an application for a writ
of habeas corpus expired one year later on October 17, 2011, absent any
statutory or equitable tolling. See United States v. Hurst, 322 F.3d 1256, 1260-
61 (10th Cir. 2003) (adopting the “anniversary method” in which “‘the day of
the act . . . from which the designated period of time begins to run shall not be
included’” (quoting Fed. R. Civ. P. 6(a))).3
C. 	Availability and effect of tolling on the limitations period.
1. 	Statutory tolling.
The AEDPA allows for tolling of the limitation period while a properly
filed state post-conviction action is pending before the state courts. See 28
U.S.C. § 2244(d)(2). An application for post-conviction relief in state court
3 	October 15, 2011, was a Saturday.
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“‘remains pending’ ‘until the application has achieved final resolution through
the State’s postconviction procedures,’” that is, when the “State’s highest court
has issued its mandate or denied review.” Lawrence v. Florida, 549 U.S. 327,
332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)). But only state
post-conviction actions “filed within the one year allowed by AEDPA will toll
the statute of limitations.” See Davis v. Bridges, 2024 WL 140026, at *4 (10th
Cir. 2024) (quoting Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)).
Petitioner did not attempt to file any form of state post-conviction relief.
So at no point was the § 2244 limitations period statutorily tolled. Accordingly,
unless equitable tolling or another exception applies, the petition is untimely
under § 2244(d)(1)(A).
2. 	Equitable tolling.
Petitioner filed his habeas corpus petition after the expiration of the
limitations period. So, unless equitable tolling or another exception applies to
save it, the petition is untimely and the Court must dismiss it.
“[A habeas] ‘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. 408, 418 (2005)). Even assuming a diligent pursuit of rights, the one-year
period of limitation “is subject to equitable tolling . . . only in rare and
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exceptional circumstances.” Gibson, 232 F.3d at 808 (quoting Davis, 158 F.3d
at 811). Petitioner must “demonstrate[ ] 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). And it is his burden to prove that
equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011).
“Simple excusable neglect is not sufficient.” Gibson, 232 F.3d at 808.
Petitioner does not assert he is entitled to equitable tolling. So the Court
should conclude he has not carried his burden and decline to apply equitable
tolling to the limitations period.
3. 	Actual innocence exception.
Because Petitioner’s statute of limitations has expired, Petitioner’s only
remaining path around the § 2244(d) deadline would be “a ‘credible showing of
actual innocence.’” Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). “To be credible, such a claim
requires petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995) (emphasis added). Ultimately,
Petitioner “must show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.” McQuiggin, 569
U.S. at 399 (quoting Schlup, 513 U.S. at 327).
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Petitioner neither argues he is actually innocent, nor does he indicate
the presence of any new evidence. He only maintains that his sentence was
unlawfully enhanced. See Doc. 1, at 2-4. As a result, the Court should conclude
that the “actual innocence” exception does not apply.
IV. 	Recommendation and notice of right to object.
The undersigned recommends the Court dismiss Petitioner’s habeas
corpus petition as untimely. The undersigned advises Petitioner of his right to
file an objection to this Report and Recommendation with the Clerk of Court
on or before May 13, 2026, 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.
ENTERED this 22nd day of April, 2026.
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