Opinion
No. CIV-18-677-HE
08-02-2018
JEFFREY SCOTT CANADY, Petitioner, v. WARDEN BEAR, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his conviction on various charges, including Murder in the Second Degree, entered in the District Court of Oklahoma, Oklahoma County, Case No. CF-2013-5083. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Petition be dismissed as untimely.
I. Background
Petitioner was convicted of Murder in the Second Degree following a plea of guilty on June 4, 2015. Doc. No. 1 ("Petition") at 1; Doc. No. 1-2 at 1. On that same date, Petitioner was sentenced to 40 years imprisonment, all suspended except the first 25 years. Doc. No. 1-2 at 1.
Also on June 4, 2015, Petitioner entered guilty pleas in a separate criminal case to Unauthorized Use of a Vehicle After Former Conviction of Two or More Felonies, Possession of a Firearm After Former Conviction of Two or More Felonies, and Leaving the Scene of a Motor Vehicle Collision in the District Court of Oklahoma County, Case No. CF-2013-5500. Doc. No. 1-2 at 1. He was sentenced to 25 years imprisonment on Counts 1 and 2 and one year in the county jail on Count 3. Id. The state district court ordered all sentences to run concurrently. Id.
On April 17, 2017, Petitioner filed an Application for Post-Conviction relief, which was denied by the state district court on June 29, 2017. Doc. No. 1-2 at 4-6. Petitioner did not appeal denial of the same. Doc. No. 1-4 at 2.
On May 9, 2017, Petitioner filed a Motion to Withdraw Pleas or Permission to Appeal Out of Time with the state district court. Doc. No. 1-1 at 1. The state district court denied the same, explaining a request for an appeal out of time is properly raised in a post-conviction application and in any event, Petitioner had failed to establish entitlement to an appeal out of time. Doc. No. 1-1 at 2. The court noted that a petitioner seeking an appeal out of time must establish that he was denied a timely appeal through no fault of his own, and that a defendant waives his right to appeal if he is aware of his appellate rights but does not exercise them. Id. "Petitioner was aware of his appellate rights, yet did not seek to withdraw his pleas or otherwise seek to appeal the convictions within the applicable time period. Moreover, Petitioner does not offer this Court any reason for failing to previously raise these issues; thus, these issues have been waived." Doc. No. 1-1 at 3.
On November 28, 2017, Petitioner filed a Second Application for Post-Conviction Relief arguing that pursuant to a recent Tenth Circuit case, Murphy v. Royal, the state district court had no jurisdiction over his criminal proceedings. Doc. No. 1-1. The state district court denied Petitioner's Application and he appealed to the Oklahoma Court of Criminal Appeals ("OCCA"). Doc. No. 1-4. The OCCA affirmed the denial explaining that the grounds raised in Petitioner's Second Application could have been raised prior to the entry of his guilty plea, in direct appeal proceedings, or in his first request for post-conviction relief. Doc. No. 1-4 at 2-3. Because Petitioner did not previously raise those issues, they were waived and could not provide a valid basis for subsequently requested post-conviction relief. Doc. No. 1-4 at 3.
On July 13, 2018, Petitioner filed the instant habeas action in which he raised four grounds for relief. In Ground One, he contends the state court lacked jurisdiction over his criminal trial, pursuant to the recent Tenth Circuit case, Murphy v. Royal. Petition at 3, 5. In Ground Two, Petitioner argues the state court lacked jurisdiction over his criminal trial based on a new legal opinion indicating that State Question 788, passed by the electorate, does not apply to Indians on Indian land. Petition at 6-7. In Ground Three, Petitioner states that he is innocent of Murder in the Second Degree because the "crime was an accident." Petition at 8. Finally, in Ground Four, Petitioner raises a general due process argument, stating that each claim raised herein "shows multiple due process violations, at least warranting remand for a hearing on merits." Petition at 9.
II. Statute of Limitations
A. Applicable Limitations Period
Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must seek habeas relief within one-year and said limitations period generally begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Petitioner was sentenced on June 4, 2015. Doc. No. 1-2 at 1. Petitioner did not timely move to withdraw his plea or file a direct appeal. Thus, Petitioner's conviction became "final" under 28 U.S.C. §2244(d)(1)(A) on June 15, 2015, when the ten-day time period for Petitioner to file an application to withdraw his guilty plea expired. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.; Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (noting the petitioner's Oklahoma convictions became "final ten days after entry of Judgment and Sentence.").
June 14, 2015 was a Sunday. Thus, Petitioner's ten-day time period in which to file an application to withdraw his guilty plea would have expired Monday, June 15, 2015.
Thus, Petitioner had one year beginning on June 15, 2015, to file his federal habeas petition commensurate with 28 U.S.C. § 2244(d)(1)(A). Absent statutory or equitable tolling, his one-year filing period expired on June 16, 2016.
B. Statutory Tolling
As noted, Petitioner did not file his first Application for Post-Conviction Relief until April 17, 2017. Doc. No. 1-2 at 4. Under 28 U.S.C. § 2244(d)(2), "[t]he 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" will generally toll the statute of limitations applicable to filing a habeas petition. (emphasis added). Petitioner did not file his post-conviction application until after his statute of limitations had already expired. Thus, Petitioner is not entitled to statutory tolling. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) ("Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.").
C. Equitable Tolling
28 U.S.C. "§ 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Generally, equitable tolling is warranted only in situations where the petitioner was actively misled or is prevented in some extraordinary way from asserting his rights. Id. at 418-19.
Under a very broad reading of the Petition, Petitioner asserts the issuance of Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), petition for cert. granted, 86 U.S.L.W. 3584 (U.S. May 21, 2018) (No. 17-1107) affords him equitable tolling as a new pronouncement of federal law that criminal proceedings based on crimes committed by Indians on Indian land are under the exclusive jurisdiction of the federal, rather than the state, government. Petition at 3, 5. He states that because he is an Indian and the murder underlying his conviction occurred on Indian land, the state court lacked jurisdiction over his criminal proceedings. Id. However, as described in more detail below, the Murphy opinion did not create new law but instead served to clarify whether a particular area of land in Oklahoma was considered Indian country.
In Murphy, the Tenth Circuit analyzed the application of the Major Crimes Act, which provides, in relevant part, that when certain enumerated crimes, including murder, are committed by an Indian "within Indian country," he shall be subject exclusively to federal, rather than state, jurisdiction. Murphy, 875 F.3d at 915 (citing 18 U.S.C. §§ 1153(a), 3242). The petitioner in Murphy, a member of the Muscogee Creek Nation, was convicted of murder in an Oklahoma state court and sentenced to death. Murphy, 875 F.3d at 905, 907. It was undisputed that the petitioner was Indian. Id. at 907-08. However, during his post-conviction proceedings, the petitioner relied on the Major Crimes Act to argue that because the Creek Reservation, where the murder occurred, was Indian country, the state court lacked jurisdiction over his criminal charges. Id.; see also 18 U.S.C. § 1151 (defining "Indian country"). Ultimately, the OCCA ruled that the Creek Reservation had been diminished and no longer qualified as Indian land. Murphy, 875 F.3d at 908-09.
The petitioner's subsequent habeas corpus petition, in which he raised the same jurisdictional argument under the Act, reached the Tenth Circuit. In an extremely complex decision, the Tenth Circuit, analyzing the history of the Major Crimes Act and related law relevant to reservation establishment, disagreed with the OCCA, ruling that the OCCA's application of the Major Crimes Act was contrary to established Supreme Court law, determining that the Creek Reservation remained Indian country for purposes of the Act and therefore, the federal government and not the state had the sole authority to prosecute the petitioner. Id. at 903-04, 914-67.
Thus, in issuing Murphy, the Tenth Circuit did not make a new or original pronouncement of law but instead, merely rejected the OCCA's decision that one specific area of land, the Creek Reservation, was no longer considered Indian country. Murphy has no bearing on Petitioner's conviction. The Major Crimes Act was in effect at the time of Petitioner's conviction, see id. at 915-17, and he was obviously aware of where the underlying crime took place at that time. Thus, the Murphy decision does not provide an extraordinary circumstance warranting equitable tolling. See also Dopp v. Martin, No. 18-CV-0152-CVE-FHM, 2018 WL 2750228, at *2 (N.D. Okla. June 7, 2018) (dismissing habeas as untimely where the petitioner, relying on Murphy, knew at the time of his conviction where the underlying crime occurred and noting that Murphy analyzed "whether Congress disestablished, abolished, or diminished the boundaries of the [Creek] Reservation" while the petitioner's crime took place on the Seneca-Cayuga Tribe Reservation).
Moreover, the petitioner in Murphy was tried in McIntosh County, Oklahoma. Here, Petitioner never specifies the Indian land in which he claims his crime occurred but having been convicted in Oklahoma County, it is exceedingly unlikely the alleged Indian land is the Creek Reservation.
In Ground Three, Petitioner claims that he is actually innocent of the murder for which he was convicted because it was an accident. The Supreme Court has held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or [] expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, such tolling of the limitations period for actual innocence is appropriate only in rare instances in which the petitioner shows that "'in light of the new evidence [presented by the petitioner], no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
The Tenth Circuit has consistently ruled that legal, not factual, innocence does not provide a basis for equitable tolling. In Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the Tenth Circuit explained:
[In order to establish application of equitable tolling in this circumstance,] a criminal defendant must make a colorable showing of factual innocence. See Herrera v. Collins, 506 U.S. 390, 404 [] (1993). "The exception is intended for those rare situations 'where the State has convicted the wrong person of the crime. . . . [Or where] it is evident that the law has made a mistake.'" Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (citation omitted). [Petitioner] does not claim that he is innocent of killing Raymond Matthews. Rather, he claims that he is not guilty of first degree murder because he was intoxicated and acted in self defense. However, these arguments go to legal innocence, as opposed to factual innocence.Id. at 923. See also Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (noting that actual innocence means factual innocence and that the petitioner's claim his guilty plea was involuntary did not assert actual innocence of the crime to which he pled guilty). See also Craft v. Jones, 435 F. App'x 789, 792 (10th Cir. 2011) (habeas petitioner's self-defense argument implicated legal, not factual, innocence and did not warrant equitable tolling).
Here, Petitioner merely indicates the death leading to his conviction for murder was the result of an accident, rather than an intentional act. Such a contention merely presents a legal defense rather than a basis to find that he is factually innocent of the crime for which he was convicted. See Beavers, 216 F.3d at 923. Accordingly, Petitioner has not provided a basis for equitable tolling and his Petition should be dismissed as untimely.
In Ground Two, as previously noted, Petitioner refers to a "new" legal opinion providing a basis for habeas relief. Petition at 6-7. A new pronouncement of law may justify equitable tolling, however, Petitioner never specifically identifies said opinion and the Court is unable to discern the basis for this request for habeas relief. --------
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 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 August 22nd , 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 2nd day of August, 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE