Opinion
CIV-21-1028-SLP
02-23-2022
BRAD LEE DAVIS, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking habeas relief from a state court conviction. Before the Court is Respondent's Motion to Dismiss and Brief in Support (Doc. Nos. 11, 12), to which Petitioner has filed a Response. (Doc. No. 16). United States District Judge Scott L. Palk has referred this matter for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). Based on the reasons set forth herein, the undersigned recommends Respondent's Motion to Dismiss be granted.
I. Background Information
Petitioner was convicted of First-Degree Manslaughter, following a guilty plea, and was sentenced on July 15, 2015, in Case No. CF-2014-30, District Court of Pottawatomie County, Oklahoma. Petitioner filed an application for postconviction relief on July 20, 2020 (Doc. No. 12-1), arguing that the state court lacked jurisdiction over his criminal trial based on McGirt v. Oklahoma, __U.S.__, 140 S.Ct. 2452 (2020). The trial court denied his application on May 4, 2021. Doc. No. 12-3. Petitioner appealed the denial of his post-conviction application to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed the trial court's decision on October 1, 2021. Doc. No. 12-4.
Petitioner filed the instant action on October 20, 2021, again challenging his state court conviction based on McGirt. (Doc. No. 1). Specifically, Petitioner contends the state trial court lacked jurisdiction over his criminal conviction. Petitioner would have this Court “vacate illegal judgement [sic] and sentence, and remove [him] from illegal imprisonment [sic].” Doc. No. 1 at 14. In his Motion to Dismiss, Respondent contends Petitioner's request for habeas relief is untimely, and should, therefore, be dismissed.
II. Statute of Limitations
A. Applicable Limitation Period
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year limitation period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitation 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 limitation period begins to run from the date on which the conviction becomes final. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner asserts facts that he argues would implicate subsection (C). According to Petitioner, McGirt revealed that the State of Oklahoma did not have jurisdiction over his criminal proceedings. Doc. No. 1 at 5-9. The McGirt decision does not, however, trigger § 2244(d)(1)(C) and does not change the date Petitioner's conviction became “final” under AEDPA.
Contrary to Petitioner's argument, 28 U.S.C. § 2244(d)(1)(A) is applicable to his case. Under this section, a petitioner must seek habeas relief within the one-year limitation period that 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[.]” After pleading guilty, Petitioner was sentenced on July 15, 2015. See, supra at 1. Petitioner neither moved to withdraw his guilty plea, nor did he file a direct appeal. Petitioner's conviction became final, therefore, on Monday, July 27, 2015, upon expiration of the ten-day period during which Petitioner could have filed an application to withdraw his guilty plea. 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.”). Application of the one-year limitation period under § 2244(d)(1)(A), means that, absent statutory or equitable tolling, Petitioner's one-year limitation period for filing a federal habeas petition expired on July 27, 2016.
Petitioner contends, however, that his basis for seeking habeas relief was not available to him until July 9, 2020, the date the Supreme Court issued its decision in McGirt. This argument necessarily relies on the premise that McGirt recognized a new constitutional right. It did not.
Section 2244(d)(1)(C) provides that AEDPA's statute of limitations may run from “the date on which the constitutional right asserted was initially recognized by the Supreme Court, ” if the right is newly recognized and “made retroactively applicable to cases on collateral review[.]” Because McGirt did not recognize a new constitutional right, however, this provision does not apply. Rather, the Supreme Court merely applied the Major Crimes Act to the case. The Major Crimes Act is longstanding federal law that generally divests state courts of 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)). 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). After explaining that certain land, now in the State of Oklahoma, was promised by treaty to the Creek nation in return for ceding all their lands east of the Mississippi River to the United States Government, the Court addressed a narrow question: “[W]hether the land these treaties promised remains an Indian reservation for purposes of federal criminal law.” McGirt, 140 S.Ct. 2459. The Court succinctly answered the question holding that “[b]ecause Congress has not said otherwise, we hold the government to its word.” Id.
To arrive at its narrow holding, 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. Id. at 2460-68. Indeed, the Court looked only to Acts of Congress to answer the question before it, based on the Court's previous holding that “[o]nly 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 initiating the federal allotment policy in the early twentieth century citing established law. “[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 Nebraska v. Parker, 577 U.S. 481, 489 (2016); Mattz v. Arnett, 412 U.S. 481, 497 (1973); Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356-58 (1962)). The Court determined that, even though the federal government engaged in 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.
In sum, McGirt does not make 28 U.S.C. § 2244(d)(1)(C) applicable to Petitioner's case because the Court did not recognize a new rule of constitutional law. Rather, the Court answered the narrow question before it, determining that the Muscogee (Creek) Nation “remain[ed] an Indian reservation for purposes of federal criminal law.” Clearly, the Court's holding did not involve a constitutional issue. Id. at 2459. Indeed, this Court and other “[c]ourts in this Circuit . . . have rejected the proposition that the date of the McGirt decision should be used as the commencement date [of the limitation period] 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)); 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.”)).
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. Wyo. Att'y 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.”). This due-process right was, however, recognized prior to the Court's decision in McGirt, and was, therefore, available to Petitioner when he was convicted.
In a different context, the Tenth Circuit Court of Appeals expressed doubt that McGirt presented a new rule of constitutional law. See Order, In re Morgan, No. 206123 (10th Cir. Sept. 18, 2020) (denying authorization to file a second or successive § 2254 habeas petition where the petitioner relied on McGirt). 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 quotations omitted) (citing 28 U.S.C. §2244(b)(2)(A)); see also Jones, 2021 WL 3854755, at *3, n.1 (same). What is more, the Supreme Court recently denied Petitions for Writ of Certiorari in three cases in which the petitioners were challenging state court rulings that McGirt did not apply retroactively. State ex. rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021), cert. denied, Parish v. Oklahoma, __ S.Ct. __, 2022 WL 89297 (Jan. 10, 2022); Davis v. Oklahoma, __ S.Ct. __, 2022 WL 89459 (Jan. 10, 2022); Compelleebee v. Oklahoma, __ S.Ct. __, 2022 WL 89454 (Jan. 10, 2022). For these reasons, the Court should find that § 2244(d)(1)(C) does not apply in this case and thus, absent statutory or equitable tolling, Petitioner's action is untimely.
B. Statutory Tolling
The AEDPA's limitation 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. 28 U.S.C. § 2244(d)(2). On July 20, 2020, Petitioner filed his first application for post-conviction relief. See, supra. Because the one-year limitation period had already expired at that time, however, the application did not toll the one-year limitation period under § 2244(d)(2). 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.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[Petitioner's] state application [for postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”). Thus, the Court should conclude the Petition is not rendered timely through application of 28 U.S.C. § 2244(d)(2).
C. 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). “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. Here, Petitioner makes no argument that he is entitled to equitable tolling.
The Supreme Court has also 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 limitation 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)). Petitioner has made no claim that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to such a claim. Thus, the “actual innocence” exception to procedural bar cannot be applied to excuse Petitioner's untimely filing of his Petition.
RECOMMENDATION
Based on the foregoing findings, it is recommended Respondent's Motion to Dismiss (Doc. No. 11) be GRANTED and the Petition for Writ of Habeas Corpus be dismissed without prejudice as untimely. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 15th, 2022. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, 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.