Improbable Deadlines are Inequitable to Defendants
You might expect Tulsa criminal defense attorneys to be critical of the Oklahoma Court of Criminal Appeals as a prosecution friendly venue. We know the territory. We have been up against the ropes there. When a federal appeals court launches a stinging smackdown on the state’s highest criminal court, it is a different matter.
What’s more, if a federal court’s harsh rebuke of a top state court were prompted by the astute logic of the best Oklahoma criminal defense attorneys, it would be one thing. When a US court’s smackdown springs from the arguments of a pro se defendant, representing himself in federal court after repeated drug crime convictions, it is reasonable to ask whether something is amiss in the state court.
In a published February, 2016 opinion, the 10th Circuit Court of Appeals overturned a federal district court decision dismissing a man’s appeal regarding his incarceration on a Oklahoma drug crime conviction. The opinion included a stinging critique of Oklahoma appellate procedure. Loftus v. Chrisman, No. 15-6017 (10th Cir. 2016).
The federal court did not exactly reverse a state court ruling – it was a federal judge who got reversed. Yet that federal district court judge had concluded the defendant was out of time to file a federal appeal because Oklahoma’s Court of Criminal Appeals had said so.
Maybe he was out of time, the 10th Circuit said. The federal court declined to second-guess the state court’s never-say-yes approach to reading Oklahoma laws for appeals deadlines. Instead, the federal appeals court extended equitable relief. In essence, it said maybe he was technically out of time, but that’s not fair.
An Impossible Situation
For the pro se defendant, convicted of drug possession after two or more prior felonies, the decision means he can continue to appeal his Oklahoma incarceration in federal court. He could no longer plead his case in the state appellate system because he did not receive timely notification from a trial court that rejected his petition for post-conviction relief.
Oklahoma appellate rules required that his appeal include the date when he filed notice of post-conviction appeal in the trial court. Yet the deadline for filing his appeal lapsed before he received the trial court order that had rejected his petition. He could not file a notice of appeal before he received the order he was appealing.
The Oklahoma district court had recognized the impossible situation that occurred when he did not receive a court document in time to file a technically correct appeal. It extended the deadline for him to advance his appeals, after he received the document.
The Oklahoma Court of Criminal Appeals would have none of that. A year later, the state’s top criminal court effectively reversed the lower court’s extension. The federal court cast a suspicious eye at state appellate judges’ reasoning. By the 10th Circuit’s analysis, Oklahoma’s top criminal court had “recharacterized” the lower court’s actions as denying any recommendation for an extended deadline, which it was not.
Then the state appeals court got persnickety about what is a mandatory rule and what appellate rules the defendant could have hypothetically ignored. Oklahoma criminal procedure says if an appeal is not filed on time, it is the same as waiving the right to appeal. That’s the law, the court said. As for those other rules, about what must be included in an appeal, maybe they are mandatory, and maybe not.
Never mind that the same drop-dead deadline rule says the appeal must include a copy of the trial court order to be appealed and, in this case, had to be filed a full week before the defendant ever received the order he was supposed to attach.
Meanwhile, as the defendant waited only to be turned away from state court for being late, the clock was already ticking on the deadline for a federal habeas corpus appeal. When his appeal finally arrived in federal court, a U.S. district judge declined to toll the appeal limitations – which would essentially have granted time-outs on the appeals clock after the fact. Why? Because, technically, in the Oklahoma Court of Criminal Appeals view, he had not filed his state appeal on time.
There were two lines of reasoning on which the court could have tolled the clock – there are statutory reasons and equitable reasons. Statutory reasons would stop the clock on federal appeals while a defendant properly pursues state appeals. He missed a deadline, so he did not properly pursue those state appeals, the US district court concluded.
The lower US court could also have tolled the clock for equitable reasons. In layman’s terms, that means it could have reset the appeals clock because that would be fair. That’s where the 10th Circuit reversed the lower US court.
Fed Judges Critique Officious State Court
Judges on the 10th Circuit bench were especially concerned that the Oklahoma trial court had told the defendant he had more time to file an appeal. For the better part of a year, he had no reason to believe a higher Oklahoma courts would turn around and say his appeal was untimely. The county judge had said the appeal was on track.
Citing its earlier decision in Burger v. Scott, 317 F.3d 113 (10th Cir. 2003), the 10th Circuit said:
“As we stated in Burger, ‘[t]he Supreme Court has also indicated that equitable tolling may be applied where a court has led a particular plaintiff to believe that he or she had done all that is required under the circumstances,’”
With its legal reasons for reversing the lower court addressed in the first 10 pages of the 16 page opinion, the 10th Circuit turned its attention to arguments by the Oklahoma assistant attorney general who opposed the federal appeal.
The Oklahoma AG’s office said the state district court did not have the power to grant an extension, so the defendant could not reasonably rely on that court’s decision. The federal court was not impressed. The 1oth Circuit wrote:
“We are not at all persuaded that an incarcerated pro se litigant can be held to a higher standard of legal knowledge about a court than the court itself possesses.”
As for the Court of Criminal Appeals making a shell game of Oklahoma appellate rules, the 10th Circuit found the state judge’s reasoning somewhat disingenuous. The federal judges questioned the state judges’ notion that an imprisoned appellant could guess the right procedure by ignoring a rule that made it impossible for him to comply with other rules.
“[W]e express some doubts as to whether, in practice, an appellant who proceeded in the manner suggested by the OCCA in this case would actually have his appeal decided on the merits, rather than having it dismissed for his failure to comply with Rule 5.2(C)(1), his failure to state the date and court in which the notice of appeal was filed as required by Rule 5.2(C)(2), and/or his failure to ensure that the appellate record was prepared.”
With their analysis of the state court’s bumptious timekeeping on the record, the federal court proceeded to identify the systematic flaw in Oklahoma criminal procedures that lets such injustices slip through to federal courts. In the 10th Circuit’s view, the defendant’s late appeal was:
“…caused by the unique procedural impediments stemming from Oklahoma’s decision to allow only short filing deadlines for appealing the denial of post-conviction relief and to start the clock running on those deadlines at the time of issuance instead of the time when an incarcerated petitioner actually receives the court’s order through the prison mail system.”
Oklahoma Needs Prison Mailbox Rule
It was “Oklahoma’s refusal to apply a mailbox rule to habeas petitions” that required the federal court to grant equitable relief. While the court did not second-guess the state court’s reading of state law, the 10th Circuit decision noticed an unsettled question as to whether those laws satisfy “federal due process concerns.”
The 10th Circuit’s ominous comment about Oklahoma court’s attitude toward due process and deadlines comes on the heals of another historic deadline debate between Oklahoma’s two top appeals courts.
As we wrote recently, the Oklahoma Supreme Court has taken a stance contrary to the Oklahoma Court of Criminal Appeals about whether weekends and holidays are counted in five-day deadlines to appeal a judge’s refusal to reassign a case when bias is alleged. The Oklahoma Court of Criminal Appeals says they are, the state Supreme Court says they are not. The criminal court replied that the other court’s rules do not apply.
We are convinced the state can successfully prosecute and punish deserving criminals without tilting the tables to always favor the prosecution. A cornerstone of modern justice is the idea that the state plays fair with criminals – or accused criminals – even when criminals refuse to play fair with society. It is called leading by example. We are a strong enough state we can afford to play fair.
We would hope the Oklahoma Court of Criminal Appeals would take notice of how other judges are viewing its officious and inequitable approach to interpreting rules. Nobody is asking the court to ignore its rules. Other courts are only asking the criminal court to have some common sense and a bit of comity – considerate behavior.
Free Consultation: Tulsa Criminal Attorney
Given Oklahoma’s tough-on-crime approach to criminal justice and criminal courts’ narrow interpretation of legal procedure, it is urgent for anyone facing criminal charges in Oklahoma to be prepared with effective legal representation.
Cases like this where a pro se defendant wins are an exception from the norm. Usually, you need a criminal defense attorney and particularly a defense attorney well prepared to go the distance in a tough court system.
For a free consultation about criminal appeals in Oklahoma or any pending criminal matter, contact a Tulsa criminal defense attorney at Wirth Law Office today. Call (918) 879-1681 or send your question using the form at the top of this page.