Walker v. Masquelier

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WALTER EDWARD WALKER, )
)
Petitioner, )
)
v. ) Case No. CIV-26-65-G
)
JOHN MASQUELIER, )
)
Respondent. )
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing
pro se and
in forma pauperis, brings this
action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction.
(ECF No. 1). United States District Judge Charles B. Goodwin has referred this matter to
the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition
has been promptly examined, and for the reasons set forth herein, it is recommended
that the action be DISMISSED on filing as untimely.
I. PROCEDURAL BACKGROUND
On November 30, 2020, in Oklahoma County District Court Case Nos. CF-2017-
1539, CF-2019-2319, and CF-2020-5513, Mr. Walker pled guilty to multiple criminal
charges and was sentenced accordingly.
See ECF No. 1:1;
State of Oklahoma v. Walker,
Case Nos. CF-2017-1539, CF-2019-2319, and CF-2020-5513 (Okla. Co. Dist. Ct. Nov. 30,
2020).1
1
See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to
take judicial notice of publicly-filed records in [this] court and certain other courts concerning
matters that bear directly upon the disposition of the case at hand”).
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Petitioner did not seek to withdraw his pleas, and thus failed to perfect direct
appeals in his cases.
See State of Oklahoma v. Walker Case Nos. CF-2017-1539, CF-2019-
2319, and CF-2020-5513 (Okla. Co. Dist. Ct.);
see York v. Galetka, 314 F.3d 522, 526
(10th Cir. 2003). In all three cases, on June 26, 2023, Mr. Walker filed an application for
post-conviction relief in the Oklahoma County District Court by seeking DNA forensic
testing.
See State of Oklahoma v. Walker, Case Nos. CF-2017-1539, CF-2019-2319, and
CF-2020-5513 (Okla. Co. Dist. Ct. June 26, 2023).
The District Court denied relief in all three cases and on January 30, 2024, the
Oklahoma Court of Criminal Appeals (OCCA) affirmed the denials.
See Order Affirming
Denial of Motion for Post-Conviction DNA Testing,
Walker v. State of Oklahoma, Case No.
PC-2023-648 (Okla. Ct. Crim. App. Jan. 30, 2024). Two post-conviction applications,
denials, and affirmances followed.
See Walker v. State of Oklahoma, Case Nos. PC-2024-
674, PC-2025-671 (Okla. Ct. Crim. App. Sept. 24, 2024 & Oct. 29, 2025). On January 15,
2026, Mr. Walker filed a Petition for habeas relief in this Court. (ECF No. 1).
II. SCREENING REQUIREMENT
District courts must review habeas petitions promptly and summarily dismiss a
petition “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 Cases.
Additionally, “district courts are permitted, but not obliged, to consider,
sua sponte, the
timeliness of a state prisoner’s habeas petition.”
Day v. McDonough, 547 U.S. 198, 209
(2006). However, “before 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 has
such notice by this Report and Recommendation, and he has an opportunity to present
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his position by filing an objection to the Report and Recommendation. Further, when
raising the issue
sua sponte, the district court must “assure itself that the petitioner is
not significantly prejudiced . . . and determine whether the interests of justice would be
better served by addressing the merits or by dismissing the petition as time barred.”
Day,
547 U.S. at 210 (internal quotation marks omitted);
Thomas v. Ulibarri, No. 06-2195, 214
F. App’x 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a § 2254 habeas
petition
sua sponte only if the petition is clearly untimely on its face.
Kilgore v. Attorney
General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
III. AEDPA LIMITATIONS PERIOD
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year
limitations period for claims of a habeas petitioner in state custody.
Rhine v. Boone, 182
F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs 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). Unless a petitioner alleges facts implicating subsection
(B), (C), or (D), the limitations period generally begins to run from the date on which the
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conviction becomes final.
See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
Under subsection (A), Petitioner’s limitations period began to run from the date on
which the conviction became final.
See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.
2000). 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.
See Jones
v. Patton, 619 F. App’x 676, 678 (10th Cir. 2015). In Case Nos. CF-2019-2319 and CF-
2020-5513, Petitioner filed an untimely motion to withdraw his plea, but he later withdrew
the motions.
See Order Affirming Denial of Post-Conviction Relief, at p. 2 n.1,
Walker v.
State of Oklahoma, Case No. PC-2025-671 (Okla. Ct. Crim. App. Oct. 29, 2025). Petitioner
did not file a motion to withdraw in Case No. CF-2017-1539.
See State of Oklahoma v.
Walker, Case No. CF-2017-1539 (Okla. Co. Dist. Ct.). Thus, Petitioner’s plea-based
convictions in all three cases became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on
December 10, 2020, when the time expired for him to move to withdraw his guilty pleas.
See Riley v. Addison, 2013 WL 4782382, at *3 (W.D. Okla. Sept. 6, 2013) (finding habeas
petitioner who withdrew his motion to withdraw his guilty plea “did not seek to timely
withdraw his plea or seek a direct appeal ..., so his conviction became final ... ten days
after entry of the Judgment and Sentence”) (citing
Edwards v. Keith, 2008 WL 162624
(E.D. Okla. Jan. 15, 2008) aff’d, 276 F. App’x 768 (10th Cir. 2008). Therefore, Petitioner’s
one-year statute of limitations to file a habeas petition began the following day, December
11, 2020 and, without tolling, expired on December 13, 2021.2
2 Because the one-year limitations period fell on Saturday, December 11, 2021, Petitioner had
until the following Monday, December 13, 2021, to file his habeas petition.
See Fed.R.Civ.P.
6(a)(1)(C);
Alexander v. Zavaras, 424 F. App’x 738, 740, n. 1 (10th Cir. 2011).
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But Mr. Walker filed the habeas petition on January 15, 2026, over four years after
the limitations period had expired. (ECF No. 1). Thus, absent any statutory or equitable
tolling, the action is untimely.
IV. STATUTORY TOLLING
The AEDPA limitations period is tolled pending adjudication of a properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim.
See 28 U.S.C. § 2244(d)(2). Here, Mr. Walker filed his first
of three Applications for Post-Conviction Relief in the Oklahoma County District Court on
June 26, 2023.
See supra. But Petitioner is not entitled to any period of tolling for either
post-conviction application because this and subsequent applications were each filed after
the AEDPA limitations period had already expired on December 13, 2021.
See Fisher v.
Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001);
Hubler v. Ortiz, 190 F. App’x 727, 729
(10th Cir. 2006) (“[A] petition for post-conviction relief filed in state court after the
limitations period has expired no longer serves to toll it.”). Accordingly, unless equitable
tolling or another exception applies, the Petition is untimely.
V. EQUITABLE TOLLING
The AEDPA limitations period may be subject to equitable tolling.
See Holland v.
Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an
extraordinary circumstance stood in the petitioner’s way and prevented timely filing.
See
Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances are
extraordinary, equitable tolling is only available when the petitioner has been diligent in
the pursuit of his habeas claims.
See Holland, 631 U.S. at 653. Under this standard, the
petitioner bears a “‘strong burden to show specific facts.’”
Yang v. Archuleta, 525 F.3d
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925, 928 (10th Cir. 2008) (citations omitted). Petitioner does not argue that he is entitled to
any type of equitable tolling.
See ECF No. 1. Thus, the Court should find that equitable tolling
would not extend his limitations period.
VI. ACTUAL INNOCENCE EXCEPTION
“[A] credible showing of actual innocence” based on newly discovered evidence
“may allow a prisoner to pursue his constitutional claims” as to his conviction, under an
exception to 28 U.S.C. § 2244(d)(1)—established for the purpose of preventing a
miscarriage of justice.	
See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013).
Successful actual-innocence claims are rare due to the demanding evidentiary
requirements for such claims.
See id. at 383, 392, 401;
House v. Bell, 547 U.S. 518, 538
(2006). “[P]risoners asserting innocence as a gateway to defaulted claims must establish
that, in light of new evidence, ‘it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.’ ”
House v. Bell, 547 U.S. at 536-
37 (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995));
accord McQuiggin v. Perkins, 569
U.S. at 399 (applying the same standard to petitions asserting actual innocence as a
gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims
must be based on “factual innocence, not mere legal insufficiency.”
Bousley v. United
States, 523 U.S. 614, 623 (1998). Petitioner does not attempt to argue that he is actually
innocent of any of the crimes of conviction.
See ECF No. 1. Thus, the Court should find
that he is not entitled to benefit from any additional time under this provision.
VII. SUMMARY
Under § 2244(d)(1)(A), Petitioner’s convictions became final on December 10,
2020 and the one-year habeas limitations expired on December 13, 2021. Petitioner is
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neither entitled to any statutory or equitable tolling, nor is he entitled to any additional
time under the “actual innocence” exception. Ultimately, because Petitioner waited until
January 15, 2026 to file his Petition, the Court should dismiss it as untimely.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be
DISMISSED as untimely.
Petitioner is advised of his right to file an objection to this Report and
Recommendation with the Clerk of this Court by March 27, 2026, in accordance with
28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is further advised that failure to make
timely objection to this Report and Recommendation waives the right to appellate review
of both factual and legal issues contained herein.
Casanova v. Ulibarri, 595 F.3d 1120,
1123 (10th Cir. 2010).
IX. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this
matter.
ENTERED on March 10, 2026.
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