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finding “McGirt did not recognize a new constitutional right” because “the Court addressed whether the Muscogee (Creek) Nation ‘remained an Indian reservation for purposes of federal criminal law,' a non-constitutional issue” (alteration omitted) (quoting McGirt, 591 U.S. at 897-98)
Summary of this case from Daniels v. HardingOpinion
CIV-21-183-PRW
09-15-2021
ROBERT LYON DONAHUE, JR., Petitioner, v. RANDY HARDING, [1] Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Robert Lyon Donahue, Jr. (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). Respondent filed a Motion to Dismiss and brief in support, arguing the Petition is time-barred. (Docs. 9, 10). Petitioner did not respond. For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be dismissed with prejudice.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Procedural History
A. Petitioner's Comanche County Sentence and Revocation
On October 17, 2013, Petitioner entered a plea of guilty to Larceny from a Person in the Nighttime in Comanche County District Court. (Doc. 10, at Ex. 1). The court sentenced Petitioner to six years of imprisonment, with all but the first two years suspended. (Id.)
On September 17, 2015, the Comanche County District Court revoked Petitioner's suspended sentence and ordered that Petitioner serve two of the remaining four years in custody of the Oklahoma Department of Corrections (“DOC”) and that two of the remaining years be “re-suspended.” (Id. at Exs. 5, 6). According to DOC records, Petitioner stopped serving the non-suspended portion of his sentence on April 17, 2016. (Id. at Exs. 15, 16). The suspended portion of his sentence expired on September 16, 2019. (Id. at Ex. 15).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On October 15, 2020, Petitioner filed an Application for Post-Conviction Relief in Comanche County arguing that the district court did not have jurisdiction over his crime in light of McGirt v. Oklahoma, ___U.S.___, 140 S.Ct. 2452 (2020), because he is a member of the Kiowa Tribe and the crime occurred in Indian Country. (Doc. 10, at Ex. 8). He also argued that his plea was not knowing and voluntary in light of the alleged jurisdictional issue. (Id. at 5). The Comanche County District Court denied Petitioner's Application on October 30, 2020. (Id. at Ex. 9).
On November 10, 2020, Petitioner filed a Petition in Error and Brief in Support to the Oklahoma Court of Criminal Appeals, raising the same issues. (Id. at Exs. 11, 12). The OCCA affirmed the denial of Petitioner's Application for Post-Conviction Relief on February 26, 2021. (Id. at Ex. 13).
C. The Petition
On March 3, 2021, Petitioner filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254, challenging his Comanche County sentence. (Doc. 1, at 15). He asserts he is an enrolled member of the Kiowa Tribe and the crime occurred in Indian Country - specifically the Comanche Reservation. (Id. at 5; Doc. 2, at 2). Based on these facts, he asserts Oklahoma did not have jurisdiction to prosecute him based on the decision in McGirt, 140 S.Ct. 2452. Thus, he contends he was denied his right to due process. (Doc. I, at 5).
II. Jurisdiction
“The first showing a § 2254 petitioner must make is that he is ‘in custody pursuant to the judgment of a State court.'” Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. § 2254(a)). Ordinarily, a petitioner may not bring a federal habeas petition challenging a sentence he is no longer serving. See Id. (“Coss is no longer serving the sentences imposed pursuant to his 1986 convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions.”). However, a petitioner may challenge an already-completed sentence when that sentence is consecutive to a sentence he presently serves. See Garlotte v. Fordice, 515 U.S. 39, 47 (1995). The court must view “consecutive sentences in the aggregate” and allow a habeas petitioner to challenge an already-served sentence where its invalidation “would advance the date of his eligibility for release from present incarceration.” Id.
As noted above, the Comanche County District Court revoked Petitioner's suspended sentence on September 17, 2015, and ordered that Petitioner serve two of the remaining four years of his sentence in DOC custody. (Doc. 10, at Exs. 5, 6). On February 5, 2016, the Canadian County District Court sentenced Petitioner to twenty years of imprisonment for Larceny of an Automobile and five years of imprisonment for Driving Under the Influence of Alcohol, to run concurrently with each other. (Doc. 10, Ex. 7, at 1). Because the Canadian County sentence was silent as to the Comanche County sentence, the two sentences ran consecutive to each other. See Okla. Stat. tit. 21 § 61.1 (providing that when a person is convicted of two or more crimes in different courts, “the sentence which is first received at the institution shall commence and be followed by those sentences which are subsequently received at the institution . . . unless a judgment and sentence provides that it is to run concurrently with another judgment and sentence”). DOC records also reflect the two sentences ran consecutively, as Petitioner stopped serving the non-suspended portion of his Comanche County sentence and began serving his Canadian County sentence on April 17, 2016. (Doc. 10, at Exs. 15, 16). Because Petitioner continues to serve his Canadian County sentence, with a projected release date of January 15, 2024, (id.) the Court has jurisdiction. Garlotte, 515 U.S. at 47.
III. Analysis
A. Petitioner Did Not Timely File His Petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.Id. AEDPA includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. at § 2244(d)(2).
1. The Petition is Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[, ] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Because Petitioner did not file a direct appeal, his conviction became final ten days after the trial court entered final judgment, so, on October 28, 2013. OCCA Rule 2.1(B). See also Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“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.”). The one-year statute of limitations began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until October 29, 2014, to file his habeas petition. See Id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day). However, the Petition in this matter was filed on March 3, 2021. See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
The deadline was extended one day because the tenth day after final judgment fell on a Sunday. See OCCA Rule 1.5 (“When any filing deadline falls on a day when the Clerk's office is closed, the filing due date will be on the next day that the Clerk's office is open for the performance of public business.”).
Because Petitioner did not attempt to file any form of state post-conviction relief until October 15, 2020 - after the limitations period had already expired - those efforts did not result in tolling 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, Petitioner's habeas action, filed more than seven years after his conviction became final, is untimely under § 2244(d)(1)(A).
Petitioner is not entitled to additional time to challenge his sentence based on the trial court's revocation of his sentence in 2015 because he does not challenge the revocation proceedings in this action. See Lowe v. Dinwiddie, 163 Fed.Appx. 747, 749 (10th Cir. 2006) (where the petitioner did not challenge his revocation proceedings, “the revocation did not bestow additional time to challenge [his] sentence”) (internal quotation marks omitted). Even if he had challenged the revocation, the instant Petition would still be untimely.
2. The Statute of Limitations is not Extended by § 2244(d)(1)(B).
Petitioner contends he “could not have raised [his] claim prior to the McGirt decision because the state had consistently refused to acknowledge that the Indian reservations still exist as such.” (Doc. 1, at 14). He asserts this amounts to an “impediment” to filing his challenge, which was “removed on 07-09-20 by the McGirt decision.” (Id.) While § 2244(d)(1)(B) allows for the statute of limitations to be calculated from “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, ” the provision does not apply here. Instead, it “typically applies when the state thwarts a prisoner's access to the courts, for example, by denying an inmate access to his legal materials or a law library.” Aragon v. Williams, 819 Fed.Appx. 610, 613 (10th Cir. 2020), cert. denied, 141 S.Ct. 1106 (2021). Further, a “state-created impediment must have actually prevented the inmate from filing his application.” Id.
Petitioner does not allege the State actively thwarted his ability to file a habeas action in this matter. Instead, Petitioner's sole argument is that any effort to obtain habeas relief would have been futile because Oklahoma had not recognized the continued existence of Indian reservations for the purposes of criminal jurisdiction over Indians who committed crimes on them. But, expected legal futility does not trigger a new start date under § 2244(d)(1)(B). See Heuston v. Bryant, 735 Fed.Appx. 964, 967 (10th Cir. 2018) (concluding reasonable jurists could not debate the correctness of the district court's ruling that “futility is not a valid justification for filing an untimely § 2254 petition” under § 2244(d)(1)(B)); Minter v. Beck, 230 F.3d 663, 666 (4th Cir. 2000) (noting the difference between “impediment” and “futile” and concluding § 2244(d)(1)(B) did not apply because although “an effort by [the petitioner] to obtain habeas relief prior to [a change in law] may have been incapable of producing a successful result, the effort itself was still possible”). And, Oklahoma's pre-McGirt interpretation of what “Indian Country” means did not necessarily prevent Petitioner from obtaining timely habeas relief. See Murphy v. Royal, 875 F.3d 896, 907-10 (10th Cir. 2017) (where petitioner raised his Indian-Country related jurisdictional claim prior to McGirt in a 2004 application for post-conviction relief in state court and 2005 federal habeas petition), aff'd sub nom. Sharp v. Murphy, 140 S.Ct. 2412 (2020). Thus, the undersigned finds § 2244(d)(1)(B) is not applicable to extend the start date of AEDPA's statute of limitations to the date that McGirt was decided.
3. Section 2244(d)(1)(C) Is Not Applicable Because McGirt Did Not Recognize a New Constitutional Right.
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.” Because McGirt did not recognize a new constitutional right, the provision does not apply.
The McGirt decision 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.
The McGirt decision 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, ” McGirt, 140 S.Ct. at 2459, a non-constitutional issue. 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, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, 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.”), appeal docketed, No. 21-5060 (10th Cir. Aug. 9, 2021); Sanders v. Pettigrew, 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”); citing accord with Berry v. Braggs, 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 undersigned recommends the court find that § 2244(d)(1)(C) does not apply in this case.
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.
The undersigned does not reach the issue of retroactivity because McGirt did not announce a newly recognized constitutional right.
4. Section 2244(d)(1)(D) Does Not Apply Because Petitioner Knew or Should Have Known the Factual Predicate of His Claims Prior to McGirt.
Petitioner also contends the factual predicate of his claim could not have been discovered through the exercise of due diligence. (Doc. 1, at 14). The statute of limitations can begin to run on “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)(D). Under § 2244(d)(1)(D), “the limitations period begins to run when the petitioner knows of the facts giving rise to the habeas claim; it is not required that he or she understand the legal significance of those facts.” Klein v. Franklin, 437 Fed.Appx. 681, 684 (10th Cir. 2011) (citing Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000)).
Here, the alleged factual bases of Petitioner's claim are that he is Indian and the crimes occurred on the Comanche Reservation. (Doc. 2, at 2). The undersigned finds that Petitioner would have either known these facts or could have discovered them through the exercise of due diligence at the time of his conviction. See Seals v. Smith, 2020 WL 6038760, at *4 (W.D. Okla. June 4, 2020) (“Petitioner, however, knew the factual predicate for his jurisdictional claim - i.e., the location of his crimes and his status as a tribal member - when he entered his plea.”) (internal quotation marks omitted), adopted, 2020 WL 3605027 (W.D. Okla. July 2, 2020). Thus, even if the McGirt decision alerted Petitioner to the legal significance of his tribal membership and the location of the crimes, it does not trigger a new start date under § 2244(d)(1)(D). See Id. (“Thus, even if he did not understand the legal significance of those facts until he learned of the Murphy decision, Petitioner cannot rely on § 2244(d)(1)(D) to alter the start date here.”) (internal quotation marks omitted); Barbre v. Whitten, 2019 WL 3976518, at *2 (E.D. Okla. Aug. 22, 2019) (“Petitioner clearly was aware of his status as a Native American and that his crime allegedly occurred on Indian land at the time he entered his plea. Nothing in the Murphy case added anything to the factual basis of Petitioner's claim. At best, Murphy explained the potential legal significance of those facts.”).
Because Petitioner does not identify any other newly discovered evidence serving as the factual predicate of his claims, § 2244(d)(1)(D) does not apply.
Petitioner does not argue and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding a habeas petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing”) (citation omitted). Nor does Petitioner argue he is actually innocent of the crimes at issue. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding that to present a credible claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”).
5. AEDPA's Statute of Limitations Applies to Petitioner's Claim That the State Courts Lacked Jurisdiction.
Petitioner contends “a jurisdictional challenge can be raised at any time.” (Doc. 1, at 14). In both federal and Oklahoma courts, subject-matter jurisdiction can be challenged at any time. See, e.g., United States v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.”); Wallace v. Oklahoma, 935 P.2d 366, 372, 1997 OK CR 18, ¶ 15 (“[I]ssues of subject matter jurisdictions are never waived . . . .”). But, Petitioner does not challenge this Court's subject-matter jurisdiction. Instead, he contends AEDPA's statute of limitations does not apply because the state trial court lacked jurisdiction over his claim.
Respondent argues that “Petitioner has not even raised a claim with respect to the District Court of Comanche County's subject-matter jurisdiction over his crime.” (Doc. 10, at 20). The undersigned disagrees, as Petitioner's sole contention is that “the state court did not have jurisdiction to prosecute [him].” (Doc. 1, at 5). The claim, however, is properly brought as a due process claim. See Yellowbear, 525 F.3d at 924 (“Absence of jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief cognizable under the due process clause.”).
Petitioner is incorrect. “‘As with any other habeas claim,' . . . § 2254 claims predicated on the convicting court's lack of jurisdiction are ‘subject to dismissal for untimeliness.'” Jones, 2021 WL 3854755, at *3 (quoting Morales v. Jones, 417 Fed.Appx. 746, 749 (10th Cir. 2011)). See also Cole v. Pettigrew, 2021 WL 1535364, at *2 n.4 (N.D. Okla. Apr. 19, 2021) (“Regardless of whether Cole can raise a challenge to the trial court's subject-matter jurisdiction in state court, free of any time limitations, the plain language of § 2244(d)(1)'s one-year statute of limitations makes no exception for claims challenging subject-matter jurisdiction.”). Because AEDPA's statute of limitations provides no exception for jurisdictional claims, the undersigned finds no merit in Petitioner's argument.
B. Alternatively, This Action May Be Dismissed Because Petitioner Is Not Entitled to Relief.
1. Standard of Review
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). This Report and Recommendation provides such notice, and Petitioner has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive 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 . . . .” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (unpublished) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
2. Congress Disestablished the Comanche Reservation.
As noted above, McGirt addressed a longstanding rule that “[s]tate courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.'” 140 S.Ct. at 2459. “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, if Petitioner is an Indian and the crime took place on an Indian reservation, then the state would have been without jurisdiction to try his case. Petitioner asserts just that - he is a Kiowa Indian and the crime occurred on the “Comanche Reservation” in Indian Country. (Doc. 2, at 2).
Petitioner, however, reads McGirt too broadly. He contends “a central finding in McGirt is that the Major Crimes Act, 18 U.S.C. 1153, still applies in Oklahoma” and that the case “made it clear that the Indian reservations had not been disestablished.” (Id. at 3-4). But, McGirt did not declare all of Oklahoma to be Indian Country or that all Indian reservations within the state have remained intact. Instead, the Court acknowledged that “[e]ach tribe's treaties must be considered on their own terms, and the only question before us concerns the Creek.” McGirt, 140 S.Ct. at 2479. Ultimately, the Court determined the Muscogee (Creek) Reservation had not been disestablished, after careful examination of the language of treaties between the tribe and the United States and other Acts of Congress. Id. at 2460-68, 2482.
The Major Crimes Act includes crimes where the value of property is in excess of $1,000. 18 U.S.C. § 1151 (including “a felony under [18 U.S.C. § 661]” within the offenses committed by Indians occurring within Indian Country for which the United States has exclusive jurisdiction). For the purposes of this analysis, the Court assumes the Major Crimes Act applies to Petitioner's crime.
That McGirt's holding is limited to the Muscogee (Creek) Nation is not fatal to the merits of Petitioner's claim. But it does mean the Court must undertake a textual analysis to determine whether the Comanche Reservation is still in existence or if it was disestablished by Congress. This is because once a reservation has been established, the power to disestablish it “belongs to Congress alone.” Id. at 2462. Thus, “[t]o determine whether a tribe continues to hold a reservation, there is only one place [a court] may look: the Acts of Congress.” Id. “Disestablishment has ‘never required any particular form of words.'” Id. at 2463 (quoting Hagen, 510 U.S. at 411). “But it does require that Congress clearly express its intent to do so, ‘[c]ommon[ly with an] [e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests.'” Id. (quoting Nebraska v. Parker, 577 U.S. 481, 488 (2016)).
In a pre-McGirt decision addressing the reservation status of the Muscogee (Creek) Nation, the Tenth Circuit likewise noted that “Congress is fully capable of stating its intention to disestablish or diminish a reservation.” Murphy, 875 F.3d at 948. As an example, the court noted that Congress did so with regard to the Comanche Reservation, by stating: “‘Subject to the allotment of land . . . and for the considerations hereinafter mentioned . . . [the] Comanche, Kiowa, and Apache Indians hereby cede, convey, transfer, relinquish, and surrender, forever and absolutely, without any reservation whatever, express or implied, all their claim, title, and interest, of every kind and character, in and to the lands embraced in the following-described tract of country in the Indian Territory . . . .'” Id. at 949 (quoting Act of June 6, 1900, 31 Stat. 672, 676-77). Thus, Congress disestablished the reservation when it explicitly stated that the land in question was ceded and surrendered, forever and absolutely, and without any reservation. See McGirt, 140 S.Ct. at 2464 (noting that “in 1832 the Creek cede[d] their original homelands east of the Mississippi for a reservation promised in what is now Oklahoma” and “in 1866, they cede[d] and convey[ed] a portion of that reservation to the United States, ” “[b]ut because there exists no equivalent law terminating what remained, the Creek Reservation survived allotment”) (internal quotation marks omitted). Indeed, the Tenth Circuit recognized in 1950 that “it cannot be doubted that Congress . . . intended to . . . disestablish the organized reservation” when the Comanche, Kiowa, and Apache Indians “ceded the lands embraced within it to the United States, relinquishing and surrendering ‘all their claim, title and interest,' subject to the allotments in severalty, and every allottee was given the benefit of and made subject to the laws, both criminal and civil, of the state or territory, with the gift of citizenship and equal protection of the laws.” Tooisgah v. United States, 186 F.2d 93, 97-98 (10th Cir. 1950).
Congress defined the ceded territory as:
Commencing at a point where the Washita River crosses the ninety-eighth meridian west from Greenwich; thence up the Washita River, in the middle of the main channel thereof, to a point thirty miles, by river, west of Fort Cobb, as now established; thence due west to the north fork of Red River, provided said line strikes said river east of the one-hundredth meridian of west longitude; if not, then only to said meridian line, and thence due south, on said meridian line, to the said north fork of Red River; thence down said north fork, in the middle of the main channel thereof, from the point where it may first be intersected by the lines above described, to the main Red River; thence down said Red River, in the middle of the main channel thereof, to its intersection with the ninety-eighth meridian of longitude west from Greenwich; thence north, on said meridian line, to the place of beginning.Act of June 6, 1900, 31 Stat. 672, 677. Present-day Comanche County lies entirely within these boundaries.
The Comanche Reservation was disestablished over a century before Petitioner's criminal activity in Comanche County. Petitioner provides no other basis for his claim that his crime occurred in Indian Country. Thus, the Major Crimes Act does not apply to Petitioner, and he is not entitled to relief.
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice.
The court advises the parties of their right to object to this Report and Recommendation by October 6, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.