Cooper v. Rogers

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CARLTON COOPER,
Petitioner,
v.
DAVID ROGERS,1
Respondent.
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) 	Case No. CIV-25-40-SLP
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REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed an Amended Petition for Writ
of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254. (Doc. 6).
United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate
Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 4, 9).
Respondent filed a Pre-Answer Notice of Motion to Dismiss Petition for Writ of Habeas
Corpus and Brief in Support, (Docs. 12, 13), to which Petitioner has responded. (Doc 16).
The undersigned recommends that the Court GRANT Respondent’s Motion and DISMISS
WITH PREJUDICE this habeas petition as time-barred by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).
1 	The 	Oklahoma 	Department 	of 	Corrections 	purchased 	Lawton 	Correctional 	and
Rehabilitation 	Center 	and 	renamed 	it 	“Red 	Rock 	Correctional 	Center.” 	See
https://oklahoma.gov/doc/newsroom/2025/oklahoma-department-of-corrections-finalizes-
purchase-of-lawton-.html (last accessed Oct. 30, 2025). 	David Rogers is the Interim
Warden of Red Rock Correctional Center, so he is substituted as respondent. 	See Rule
2(a), Rules Governing Section 2254 Cases (“If the petitioner is currently in custody under
a state-court judgment, the petition must name as respondent the state officer who has
custody.”).
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I. 	Background
On May 10, 2021, Petitioner entered a plea of guilty to shooting with intent to kill,
assault and battery with a deadly weapon, and felon in possession of a firearm. (Doc. 13,
at Ex. 1, at 1). On March 9, 2022, the District Court of Oklahoma County (“state district
court”) sentenced Petitioner to twenty-five years of imprisonment on all three counts, to be
served concurrently. (Id.)
On March 15, 2022, Petitioner filed an application to withdraw his plea of guilty
with the state district court. 	(Id. at Ex. 2). 	The state district court denied Petitioner’s
application on May 23, 2022. 	(Id. at Ex. 3). 	Petitioner then appealed the denial to the
Oklahoma Court of Criminal Appeals (“OCCA”). 	Cooper v. State, OCCA Case No. C-
2022-492.2 	The OCCA affirmed Petitioner’s Judgment and Sentence on June 1, 2023.
(Doc. 13, at Ex. 5, at 5).
On April 17, 2024, Petitioner filed an application for post-conviction relief with the
state district court. (Id. at Ex. 6). The state district court denied the application on July 9,
2024. 	(Id. at Ex. 8). 	Petitioner did not file an appeal. 	(Doc. 6, at 5). 	He then filed the
original Petition in this habeas action on January 7, 2025.3 (Doc. 1).
2 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=C-
2022-492 (last accessed Oct. 30, 2025).
3 The envelope in which Petitioner sent the original Petition is marked “legal mail” and
stamped “Jan 07 2025.” (Doc. 1, at Ex. 1); see also Price v. Philpot, 420 F.3d 1158, 1166
(10th Cir. 2005) (allowing the benefit of the prison mailbox rule when a prisoner “alleg[es]
and prov[es] that he or she made timely use of the prison’s legal mail system if a
satisfactory system is available”).
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II. 	The Petition Is Time-Barred by AEDPA.
AEDPA established a one-year limitations period for federal habeas claims by
petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.
Id. AEDPA includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction
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.
Id. at § 2244(d)(2).
Respondent contends that the Petition is untimely under 28 U.S.C. § 2244(d)(1)(A)
and that none of the other provisions apply. (Doc. 13, at 10-19). Petitioner does not attempt
to contest Respondent’s argument; he instead argues he is entitled to equitable tolling.
(Doc. 16, at 2).
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A. 	The Petition Is Untimely Under 28 U.S.C. § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating 28 U.S.C. §§ 2244(d)(1)(B), (C), or (D),
“[t]he limitations period generally runs from the date on which the state judgment became
final . . . , but is tolled during the time state post-conviction review is pending.” Preston v.
Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing 28 U.S.C. §§ 2244(d)(1)(A),
2244(d)(2)). Because Petitioner appealed his judgment and sentence to the OCCA and did
not seek review of the OCCA’s decision by the United States Supreme Court, his judgment
became final when the time to file a petition for certiorari passed. Jones v. Patton, 619 F.
App’x 676, 678 (10th Cir. 2015); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). A
petition for certiorari must be filed with the United States Supreme Court within 90 days
of the entry of judgment by the state court of last resort. 	Sup. Ct. R. 13(1). 	The OCCA
affirmed the judgment and sentence on June 1, 2023, (Doc. 13, at Ex. 5), so Petitioner’s
judgment became final 90 days later, on August 30, 2023. 	The one-year statute of
limitations began the next day. 	Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir.
2011). 	Thus, Petitioner had until September 3, 2024,4 to file his habeas petition, absent
any tolling event. See id. (noting the limitations period began the day after the judgment
became final and ended one year later on the same day).
Petitioner is entitled to tolling due to filing an application for post-conviction relief.
See 28 U.S.C. § 2244(d)(2). On April 17, 2024 – with 139 days remaining in the limitations
period – Petitioner filed his application for post-conviction relief in the state district court.
4 August 31, 2024, was a Saturday and the following Monday – September 2, 2024 – was
Labor Day.
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(Doc. 13, at Ex. 6). The state district court denied the application on July 9, 2024. (Id. at
Ex. 8). 	Although Petitioner did not appeal the state district court’s order, the limitations
period remained “tolled during the period in which the petitioner could have sought an
appeal under state law.” 	Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000). 	In
Oklahoma, a “party desiring to appeal from the final order” of the state district court’s
adjudication of a post-conviction action “MUST file a Notice of Post-Conviction Appeal
with the Clerk of the District Court within twenty (20) days from the date the order is filed
in the District Court.” Okla. Ct. Crim. App. R. 5.2(C)(1). Further, “the filing of the Notice
of Post-Conviction Appeal in the District Court is jurisdictional and failure to timely file
constitutes waiver of the right to appeal.” Id. An appealing party also must file a petition
in error and supporting brief “within sixty (60) days from the date the final order of the
District Court is filed with the Clerk of the District Court.” 	Okla. Ct. Crim. App. R.
5.2(C)(2).
Petitioner did not file a Notice of Post-Conviction Appeal with the state district court
after the state district court denied his application. See State v. Cooper, Oklahoma County
District Court Case No. CF-2020-662.5 	Because Petitioner failed to file the notice,
Respondent argues that “his grace period for properly filing such an appeal in accordance
with Oklahoma law was twenty days.” 	(Doc. 13, at 12). 	The undersigned finds this
argument persuasive as Petitioner could not have pursued an appeal under state law after
he failed to file a Notice of Post-Conviction Appeal with the state district court. See Ray
5 	https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-
2020-662&cmid=3855763 (last accessed Oct. 30, 2025).
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v. Quick, 2024 WL 664690, at *3 (E.D. Okla. Feb. 16, 2024) (finding statutory tolling
ended after twenty days when the petitioner did not timely file a notice of post-conviction
appeal), cert. of appealability denied, 2024 WL 3633231 (10th Cir. Aug. 2, 2024);
Blanchard v. Oklahoma, No. CIV-22-858-G, 2023 WL 9954025, at *4 (W.D. Okla. June
29, 2023) (“Petitioner did not appeal the post-conviction application, but he is entitled to
twenty days of tolling for the period he could have filed an appeal to the OCCA . . . .”),
report and recommendation adopted, 2024 WL 917594 (W.D. Okla. Mar. 4, 2024).
Because the state district court denied Petitioner’s post-conviction application on
July 9, 2024, he had until July 29, 2024, to file his Notice of Post-Conviction Appeal with
the state district court. Because he did not do so, the statute of limitations began running
again on July 30, 2024. And because he had 139 days remaining to file a habeas petition,
his deadline to file a habeas petition was December 16, 2024. Petitioner filed this action
on January 7, 2025 – 22 days too late. Thus, Petitioner’s habeas action is untimely under
§ 2244(d)(1)(A). 	And because Petitioner does not allege any facts triggering §§
2244(d)(1)(B),6 (C), or (D), the action should be dismissed as untimely unless Petitioner
can establish equitable tolling.
6 In his Petition, Petitioner notes he did not appeal his post-conviction action because it
would have been “out of time by the time [he] received the final order.” 	(Doc. 6, at 5).
But to take advantage of 28 U.S.C. §§ 2244(d)(1)(B), Petitioner must “allege specific facts
that demonstrate how his alleged denial of these materials impeded his ability to file a
federal habeas petition.” 	Weibley v. Kaiser, 50 F. App’x 399, 403 (10th Cir. 2002).
Petitioner does not state when he received a copy of the denial of his post-conviction
application from the state district court, so the Court cannot determine that the delayed
receipt of the order impeded his ability to timely file his federal habeas petition. See Clark
v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“[T]his provision is unavailing for Clark
because he failed to explain why the documents held by the state were necessary to pursue
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B. 	Petitioner Is Not Entitled to Equitable Tolling.
The Tenth Circuit has determined that 28 U.S.C. § 2244(d) is not jurisdictional and
“may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
To obtain equitable tolling a 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 his federal habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). This is a “strong burden” that
requires the petitioner “to show specific facts to support his claim of extraordinary
circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
Examples of the “rare and exceptional circumstances” for equitable tolling include “when
a prisoner is actually innocent, when an adversary’s conduct – or other uncontrollable
circumstances – prevents a prisoner from timely filing, or when a prisoner actively pursues
judicial remedies but files a defective pleading during the statutory period.” Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation marks and citations
omitted). 	“Simple excusable neglect is not sufficient. . . . [A] petitioner must diligently
pursue his federal habeas claims; a claim of insufficient access to relevant law, such as
AEDPA, is not enough to support equitable tolling.” Id. (citing Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990), and Miller, 141 F.3d at 978).
his federal claim and he also did not show diligent pursuit of his claims even after receiving
the material.”).
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In his response to the Motion to Dismiss, Petitioner contends he is entitled to
equitable tolling. 	After citing various cases which allowed equitable tolling, Petitioner
asserts:
Petitioner through counsel was granted an extension of time to file brief per
22 O.S.Ch. 18 on 10-19-2022, that extended Petitioner’s time to 11-20-25.7
Petitioner’s counsel filed brief on 11-21-2022 one day after deadline.
Petitioner 	was 	denied 	Writ 	of 	Certiorari 	on 	6-1-2023, 	and 	filed 	his
Application 	for 	Post-Conviction 	Relief 	on 	4-12-2024. 	Petitioner’s
Application for Post-Conviction Relief was denied on 7-9-2024.
(Doc. 16, at 2). The only new information Petitioner provides is that his counsel on direct
appeal filed a brief one day late. 	That fact does not establish that Petitioner diligently
pursued his rights in pursuing this action. Nor is it an extraordinary circumstance which
stood in his way to prevent timely filing of this action – the untimely filing occurred before
the statute of limitations clock began to run for this action. Thus, Petitioner is not entitled
to equitable tolling.
III. 	Recommendation and Notice of Right to Object
For the foregoing reasons, it is recommended that Petitioner’s Amended Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 6) be DISMISSED with prejudice
as untimely. Brown v. Roberts, 177 F. App’x 774, 778 (10th Cir. 2006) (“Dismissal of a
[§ 2254 habeas] petition as time barred operates as a dismissal with prejudice[.]”).
7 This appears to be a scrivener’s error, as the docket sheet reflects that the OCCA granted
Petitioner 	until 	November 	20, 	2022, 	to 	file 	a 	brief. 	See
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=C-2022-
492&cmid=133025 (last accessed Oct. 30, 2025).
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Petitioner is advised of the right to file an objection to this Report and
Recommendation with the Clerk of Court by November 21, 2025, in accordance with
28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is further advised that failure to timely
object to this Report and Recommendation waives the right to appellate review of both
factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th
Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge and terminates the referral unless and until the matter is re-referred.
ENTERED this 31 st day of October, 2025.
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