Timothy Fitzgerald Tolliver v. Cameron Harvanek

Oklahoma City, Oklahoma, criminal defense lawyer represented the Plaintiff seeking post-conviction relief seeking a writ of habeas corpus.



Tolliver pleaded guilty in state court to four felony charges on April 9, 2021. A

few days later, he filed a letter that the state district court construed as a motion to

withdraw the plea (the Motion). On April 20 the state district court held a hearing on the

Motion, during which Tolliver withdrew the Motion. The state district court gave

Tolliver an additional 10 days (until April 30, 2021) to file a renewed motion to withdraw

his plea. He did not do so within the 10-day window.



In July 2022, more than a year after his conviction and the withdrawal of the plea

proceedings, Tolliver filed a renewed motion to withdraw his plea (the Renewed Motion).

The state district court denied the Renewed Motion the following January. In April 2023

Tolliver sought review in the Oklahoma Supreme Court, which transferred the matter to

the Oklahoma Court of Criminal Appeals (OCCA). The OCCA dismissed the appeal for

lack of jurisdiction.



In June 2023 Tolliver returned to the state district court and sought postconviction

relief to file an untimely appeal. The state district court denied the request in July 2023.

Tolliver appealed that decision to the OCCA, which affirmed the denial in February

2024.



Meanwhile, Tolliver filed a § 2254 application in federal district court in January

2024. The magistrate judge issued a report and recommendation concluding that the time

for Tolliver to file a § 2254 application expired in May 2022—one year after Tolliver's

conviction became final in state court. But Tolliver did not file the application until

January 2024, rendering it untimely unless he was entitled to tolling. The magistrate

judge determined that statutory tolling was not available because Tolliver's various

postconviction pleadings in state court were filed after the expiration of the time

permitted for filing a § 2254 application, and the magistrate judge observed that Tolliver

did not argue that he was entitled to equitable tolling. Hence, the magistrate judge

recommended that the § 2254 application be dismissed as untimely.

Tolliver timely objected to the report and recommendation. Relevant to this

appeal, he argued that he met the criteria for equitable tolling because any procedural

deficiencies in state court were caused by constitutionally ineffective assistance of his

counsel.



After reviewing the magistrate judge's report and recommendation and Tolliver's

objections, the district court concluded that Tolliver had not shown that extraordinary

circumstances prevented his timely filing of the § 2254 application and that any state

court procedural defects were irrelevant to the AEDPA time bar. The district court

adopted the report and recommendation, dismissed the § 2254 application, and denied a

COA.

Affirmed