Opinion
CIV-22-296-J
05-16-2022
LYNN CLARK, II, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Lynn Clark II, a state prisoner appearing pro se, 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 Bernard M. Jones has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned has examined the Petition and taken judicial notice of various state court records. After review, the undersigned recommends that the court DISMISS the Petition, with prejudice, as untimely.
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”).
I. PROCEDURAL BACKGROUND
On January 11, 2016, Petitioner entered a guilty plea and was convicted in Comanche County District Court Case No. CF-2015-145. (ECF No. 1:1). Petitioner did not seek to withdraw the plea, and thus failed to perfect a direct appeal. (ECF No. 1:2); see York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003). On October 4, 2021, Petitioner filed an Application for Post-Conviction Relief in Comanche County District Court which denied relief on October 7, 2021. (ECF No. 1:3-4). Mr. Clark appealed the denial to the Oklahoma Court of Criminal Appeals (OCCA), and that Court denied relief on January 11, 2022. See Clarkv. State of Oklahoma, Case No. PC-2021-1305 (Okla. Ct. Crim. App. Jan. 11, 2022); ECF No. 1:4. Mr. Clark filed the habeas Petition on April 6, 2022, alleging:
1. The State of Oklahoma lacked jurisdiction over his conviction pursuant to McGrt v. Oklahoma, __U.S.__, 140 S.Ct. 2452 (2020);
2. McGirt should be applied retroactively to afford him a new trial; and
3. Ineffective assistance of trial and appellate counsel for failing to argue to jurisdictional issue at trial or on appeal.(ECF No. 1:5-14).
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 her 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 Fed.Appx. 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. DISMISSAL OF THE PETITION
The Court should dismiss the Petition, with prejudice, as untimely.
A. 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 conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
B. The Petition is Untimely Under 28 U.S.C. § 2244(d)(1)(A)
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 Fed.Appx. 676, 678 (10th Cir. 2015). Mr. Clark was sentenced on January 11, 2016, and because he did not appeal from his plea, his conviction became final ten days later, on January 21, 2016. See supra. Thus, without tolling, Petitioner's one-year statute of limitations to file a habeas petition expired on January 21, 2017. Mr. Clark filed the habeas petition on April 6, 2022, over four years after the limitations period had expired. (ECF No. 1).
See State Court Docket Sheet, State of Oklahoma v. Clark, Case No. CF-2015-145 (Comanche Co. Dist. Ct. Jan. 11, 2016).
Because the one-year anniversary date fell on Saturday, January 21, 2017, Petitioner had until Monday, January 23, 2017, to file his habeas petition. See Fed.R.Civ.P. 6(a).
C. 28 U.S.C. § 2244(d)(1)(C) is not Applicable
To the extent the Court liberally construes the Petition to argue timeliness under 28 U.S.C. § 2244(d)(1)(C) based on a newly recognized constitutional right pronounced in McGirt, the Court should disagree. Section 2244(d)(1)(C) allows the statute of limitations to run from “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.” But because McGirt did not recognize a new constitutional right, the provision does not apply.
Mr. Clark himself states: “[T]he McGirt decision did not announce a new rule of criminal procedure, but instead said decision, rested on clarification of previous misconstruction of statute's [sic] and treaties of the lower Courts.'” (ECF No. 1:8) (emphasis in original). Thus, it is not altogether clear whether Mr. Clark is urging the applicability of § 2244(d)(1)(C) to render his petition timely. Nonetheless, out of an abundance of caution, the Court should address the issue based on Mr. Clark's arguments throughout the Petition, which primarily focus on the applicability of McGirt.
McGirt revolved around a longstanding rule that “[s]tate courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.' ” McGirt, 140 S.Ct. at 2459 (citing Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993)). This is so because the Major Crimes Act “provides that, within ‘the Indian country,' ‘[a]ny Indian who commits' certain enumerated offenses ‘against the person or property of another Indian or any other person' ‘shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.' ” Id. (quoting 18 U.S.C. § 1153(a)). “Indian Country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” 18 U.S.C. § 1151(a). Thus, the relevant question for the Supreme Court was “whether the land . . . treaties promised [the Creek Nation] remain[ed] an Indian reservation for purposes of federal criminal law.” McGirt, 140 S.Ct. at 2459.
To answer that question, the Court examined various treaties between the United States government and the Muscogee (Creek) Nation and statutes governing the Muscogee (Creek) Nation and its territory. See id. at 2460-68. Indeed, the Court only looked to Acts of Congress to answer that question because the Court previously held that “ ‘only Congress can divest a reservation of its land and diminish its boundaries.' ” Id. at 2462 (quoting Solem v. Bartlett, 465 U.S. 463, 470 (1984)). The Court determined that the Muscogee (Creek) Nation's reservation continued to exist despite federal allotment policy in the early twentieth century because the “Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.” Id. at 2464 (citing Mattz v. Arnett, 412 U.S. 481, 497 (1973); Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356-58, (1962); Nebraska v. Parker, 577 U.S. 481, 489 (2016)). The Court determined that while the federal government engaged in other policy decisions negatively impacting the sovereignty of the Muscogee (Creek) Nation, “there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.” Id. at 2468.
McGirt does not allow Petitioner additional time to file his habeas petition under § 2244(d)(1)(C) because it did not recognize a new constitutional right. Rather, the Court addressed whether the Muscogee (Creek) Nation "remain[ed] an Indian reservation for purposes of federal criminal law, ” a non-constitutional issue. Id. at 2459. Indeed, "[c]ourts in this Circuit . . . have rejected the proposition that the date of the McGirt decision should be used as the commencement date under § 2244(d)(1)(C) for habeas challenges to state-court jurisdiction.” Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, No. 18-CV-477-CVE-JFJ, 2021 WL 3074171, at *5 (N.D. Okla. July 20, 2021) ("But [28 U.S.C. § 2244(d)(1)(C)] does not apply because the Supreme Court did not recognize any constitutional rights in McGirt.")); Voyles v. Crow, Case No. CIV-22-71, 2022 WL 949979 (W.D. Okla. Mar. 29, 2022) (stating “the plain language of § 2244(d)(1) provides no exception for due-process claims challenging [subject matter] jurisdiction.”); Sanders v. Pettigrew, No. CIV-20-350-RAW-KEW, 2021 WL 3291792, at *5 (E.D. Okla. Aug. 2, 2021) (concluding that McGirt "did not break any new ground” or "recognize a new constitutional right, much less a retroactive one”); accord with Berry v. Braggs, No. 19-CV-706-GKF-FHM, 2020 WL 6205849, at *7 (N.D. Okla. Oct. 22, 2020) ("Because the McGirt ruling did not recognize any new constitutional right relevant to petitioner's jurisdictional claim, § 2244(d)(1)(C) does not apply to that claim.”)). Therefore, the Court should find that § 2244(d)(1)(C) does not apply in this case. See Donahue v. Harding, No. CIV-21-183, 2021 WL 4711680, at *1 (W.D. Okla. Sept. 8, 2021) (concluding that in a McGirt challenge, § 2244(d)(1)(C) would not apply to extend conviction finality date because McGirt did not recognize a new constitutional right).
To be sure, a prisoner has a due process right to be convicted in a court which has jurisdiction over the matter. See Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008) ("Absence of jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief cognizable under the due process clause.”). But this due process right was recognized prior to McGirt.
Relatedly, the Tenth Circuit has addressed McGirt in a different context and expressed doubt that the decision presented a new rule of constitutional law. See In re Morgan, No. 20-6123 (10th Cir. Sept. 18, 2020) (order denying authorization to file a second or successive § 2254 habeas petition). The Tenth Circuit went on to conclude that "even if McGirt did present a new rule of constitutional law, ” "the Supreme Court has not held that McGirt is retroactive, ” and "the only way the Supreme Court could make a rule retroactively applicable is through a holding to that effect.” Id. (alterations and internal quotation marks omitted) (citing 28 U.S.C. § 2244(b)(2)(A)). Jones, 2021 WL 3854755, at *3, n.1.
D. Alleged Lack of Jurisdiction in the Trial Court does not Render the Petition Timely
Mr. Clark contends that the timeliness limitations in 28 U.S.C. § 2244 should not apply "on a lack of Jurisdiction claim.” (ECF No. 1:14). But generally speaking, there is no exception in 28 U.S.C. § 2244(d)(1) for a habeas claim based on a trial court's alleged lack of subject matter jurisdiction. In Morales v. Jones, 417 Fed.Appx. 746 (10th Cir. 2011), the Tenth Circuit held that although the "[a]bsence of jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief under the due process clause[, ]” as with any due process claim, a lack of jurisdiction claim raised in a federal habeas action is “subject to dismissal for untimeliness.” Id. at *2 (citing Yellowbear v. Wyo. Attorney Gen., 525 F.3d 921, 924 (10th Cir. 2008)); see Voyles v. Crow, 2022 WL 949979, at *1 ("there is no exception to § 2244(d)(1)'s one-year statute of limitations for a habeas claim based on a trial court's alleged lack of subject matter jurisdiction”); see also Ross v. Pettigrew, 2021 WL 1535365, at *3, n. 5 (N.D. Okla. Apr. 19, 2021) (rejecting Petitioner's assertion that a challenge to the state court's subject-matter jurisdiction can be raised at any time and thus is not subject to § 2244(d)(1)'s one-year statute of limitations, stating: "The flaw in that argument is that the plain language of § 2244(d)(1) provides no exception for due-process claims challenging subject-matter jurisdiction.”). Thus, the Court should conclude: (1) that a claim alleging a lack of jurisdiction in the trial court is subject to the AEDPA's one-year statute of limitation and (2) under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
E. 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). On October 4, 2021, Mr. Clark filed an Application for Post-Conviction Relief in the Comanche County District Court. See supra. But Petitioner is not entitled to any period of tolling for the post-conviction application because it was filed after the AEDPA limitations period had already expired. See supra; see also Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 Fed.Appx. 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 is applicable, the § 2254 claim is untimely.
F. 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 925, 928 (10th Cir. 2008) (citations omitted). Here, Petitioner has not alleged that he is entitled to equitable tolling or that any extraordinary circumstance prevented him from timely filing the Petition, and thus, is not entitled to equitable tolling. See ECF No. 1.
G. 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. Bel, 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 53637 (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).
Here, Mr. Clark has made no allegation that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to the same. As a result, the Court should conclude that the “actual innocence” exception does not apply.
H. Summary
Under § 2244(d)(1)(A), Petitioner's conviction became final on January 21, 2016 and the one-year habeas limitations expired on January 23, 2017. Section 2244(d)(1)(C) does not apply and Mr. Clark is not entitled to any statutory or equitable tolling because he has failed to demonstrate, with specificity, why he was prevented from filing a timely Petition. Finally, Petitioner is not entitled to any period of tolling under the “actual innocence” exception. Because Mr. Clark waited until April 6, 2022 to file his Petition, the Court should dismiss it as untimely.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court dismiss the Petition as untimely.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by June 2, 2022, 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).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED.