Opinion
CIV-20-828-G
04-08-2022
JONATHAN SCOTT GRAHAM, Petitioner, v. LUKE PETTIGREW, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner Jonathan Scott Graham, proceeding pro se, brings this action under 28 U.S.C. § 2254, seeking habeas corpus relief from his state conviction and sentence. Doc. 20. United States District Judge Charles Goodwin referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Docs. 3, 15.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Before the Court is Petitioner's amended habeas petition. Doc. 20. The undersigned recommended the Court dismiss Petitioner's initial habeas petition, Doc. 1, for failure to exhaust his state court remedies. Doc. 16. Petitioner objected, directing the Court's attention to his post-conviction efforts in the state courts after the filing of his initial habeas petition. See Doc. 18, at 2-3. Judge Goodwin gave Petitioner “the opportunity to plead facts showing that the claims he seeks to raise in this habeas action have been properly exhausted and are not otherwise barred” by filing an amended habeas petition. Doc. 19, at 7. Judge Goodwin otherwise adopted the undersigned's findings and conclusions and re-referred the matter to the undersigned for further proceedings. Id. at 7-8. Petitioner then filed his amended petition on January 24, 2022. Doc. 20, at 14 (Petitioner's verification of placement in prison mailing system); see also Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (explanation of prison mailbox rule); Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to a § 2254 petition).
Petitioner claims the State of Oklahoma lacked jurisdiction to prosecute him under McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Doc. 20, at 5. Id. Having reviewed Petitioner's amended habeas petition, the undersigned recommends dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), as Petitioner's claim is time barred.
Relatedly, Petitioner suggests the prosecution withheld pertinent jurisdictional information in violation of Brady v. Maryland, 373 U.S. 83 (1963), as the “state has known for over [thirty years] they lacked jurisdiction to prosecute” defendants for crimes committed in Indian Country. Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
I. Petitioner's state court procedural background.
Petitioner pleaded guilty before the Oklahoma County district court of one count of first-degree murder, one count of rape, and one count of first-degree burglary (Case No. CF-2004-2542), as well as two counts of taking clandestine photographs and fifteen counts of possession of obscene material involving a minor (CF-2004-2412), collectively Petitioner's “state court proceedings.” Petitioner attests he did not appeal his judgment of conviction. Doc. 1, at 2.
The undersigned takes judicial notice of the docket report in Petitioner's state court proceedings: State v. Graham, Case No. CF-2004-2412, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2004-2412&cmid=1774073 (last visited March 21, 2022); and State v. Graham, Case No. CF-2004-2542, https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahoma&numb er=CF-2004-2542 (last visited March 21, 2022). See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (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”).
II. Screening.
Rule 4 requires this Court to promptly review habeas petitions and calls for dismissal “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court ....” Rule 4, Rules Governing 2254 Cases in the United States District Courts. And this Court may dismiss an action sua sponte if it determines that it lacks jurisdiction. Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”).
III. Petitioner did not timely file his petition.
Petitioner argues the State of Oklahoma lacked jurisdiction to prosecute him under McGirt, in which the Supreme Court held the Muscogee (Creek) Nation remained a reservation, precluding the State's jurisdiction over certain crimes committed within reservation boundaries. 140 S.Ct. at 2459-60.
As explained below, Petitioner did not timely file his petition for habeas relief. The Court will first explain the limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) before calculating Petitioner's deadline to file for habeas relief. The Court will then explain why Petitioner's constitutional arguments against application of the AEDPA limitations period are unavailing.
A. An explanation of the AEDPA limitations period.
The AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
The limitation period shall run 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. It also 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. § 2244(d)(2). A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only “in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“AEDPA's one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.'”) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)); see also Holland v. Florida, 560 U.S. 631, 645 (2010) (“[Section] 2244(d) is subject to equitable tolling in appropriate cases.”).
B. Petitioner's deadline to file for relief.
Unless a petitioner shows otherwise, the limitations period generally runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “[A] judgment becomes final when the defendant has exhausted all direct appeals in state court and the time to petition for a writ of certiorari from the United States Supreme Court has expired . . . .” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012). In order to appeal from a conviction on a guilty plea, a defendant must first file an application to withdraw the plea within ten days from the pronouncement of the judgment and sentence. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.; see also Brooks v. Jones, No. CIV-07-967-D, 2008 WL 1733387, at *4 (W.D. Okla. Apr. 14, 2008). Petitioner was sentenced on May 18, 2005. Therefore, Petitioner's conviction was final on May 28, 2005. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding petitioner's convictions on guilty pleas were final ten days after entry of each judgment and sentence under OCCA Rule 4.2(A) because petitioner had failed to appeal).
Petitioner attests he was sentenced in January 2005. Doc. 20, at 1. The Court's own review of the docket report in Petitioner's state court proceedings reveals he was sentenced in both cases on May 18, 2005. Graham, Case No. CF-2004-2412 Docket Entry dated May 18, 2005 (Return Judgment & Sentence); Graham, Case No. CF-2004-2542, Docket Entry dated May 18, 2005 (Return Judgment & Sentence). Because the docket-entry date is more favorable to Petitioner, the Court will use May 18, 2005, to calculate Petitioner's statutory year to file for habeas relief under the AEDPA.
The one-year limitations period begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” in which “the day of the act . . . from which the designated period of time begins to run shall not be included” (quoting Fed.R.Civ.P. 6(a))). So Petitioner's statutory year to file a habeas petition began on May 29, 2005, and expired one year later on May 29, 2006. Harris, 642 F.3d at 906 n.6.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). This provision only applies, though, to post-conviction applications filed within the statutory year to file for habeas relief. 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.”). Petitioner first applied for post-conviction relief on November 16, 2020, well after his statutory year had expired. Doc. 20, at 3; see also Graham, Case No. CF-2004-2542, Docket Entry dated November 16, 2020 (Petitioner's Application for Post-Conviction Relief or in the Alternative, Application for Appeal Out of Time). He is therefore not entitled to statutory tolling under § 2244(d)(2).
Petitioner's habeas petition was therefore untimely filed under § 2244 of the AEDPA.
C. Petitioner's constitutional arguments against application of the AEDPA limitations period are unavailing.
Petitioner first suggests application of the § 2244 limitations period violates the Suspension Clause, which prohibits suspension of the writ of habeas corpus except “in Cases of Rebellion or Invasion the public Safety may require it,” U.S. CONST. art. I, § 9, cl. 2. Doc. 20, at 13.
Generally speaking, “[t]he AEDPA, including its limitations period, is constitutional.” Ellis v. Martin, 202 F.3d 281 (10th Cir. 1999) (rejecting argument that the AEDPA limitations period violates the Suspension Clause). “Whether the one-year limitation period violates the Suspension Clause depends upon whether the limitation period renders the habeas remedy ‘inadequate or ineffective' to test the legality of detention.” Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998) (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)). Petitioner bears the burden of demonstrating inadequacy and ineffectiveness. Id. at 977.
Petitioner makes no argument as to why his “situation falls within any exception that might render the habeas remedy inadequate or ineffective.” See Thornton v. Oklahoma, 198 F.3d 259 (10th Cir. 1999). In particular, the Court notes that Petitioner does not contend that “a constitutional violation has resulted in the conviction of one who is actually innocent or incompetent.” Miller, 141 F.3d at 978 (citing Schlup v. Delo, 513 U.S. 298, 324-29 (1995)). His claim is instead a jurisdictional one-that his prosecution by the State of Oklahoma was unlawful under McGirt. Doc. 20, at 5. Petitioner has therefore not satisfied his burden to prove application of the AEDPA limitations period to his claims would violate the Suspension Clause. See Murrell v. Crow, 793 Fed.Appx. 675, 679 (10th Cir. 2019) (denying certificate of appealability “because [the petitioner] ma[de] no effort to show how the district court ‘render[ed] the habeas remedy inadequate and ineffective' by applying § 2244(d)(1) to the particular ‘circumstances' of his case”).
Petitioner next suggests application of the § 2244 limitations period would violate his due process rights. Doc. 20, at 13. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Petitioner does not explain why the § 2244 limitation period would deprive him of such an opportunity.
Indeed, “[f]ar from denying Petitioner due process, the applicable statute of limitations is process itself.” Heddlesten v. Crow, 2021 WL 4519702, at *2 (10th Cir. Oct. 4, 2021); see also Weldon v. Pacheco, 715 Fed.Appx. 837, 843 (10th Cir. 2017) (“We know of no authority for the notion that procedural-bar rulings-or rulings on such other procedural matters as statute of limitations or exhaustion, which also pretermit relief on the merits of a claim-violate due process . . . .”). And “[t]he one-year limitations period has the rational purpose of encouraging the timely and efficient disposition of habeas claims.” Ellis v. Martin, 202 F.3d 281 (10th Cir. 1999). So while “the limitation period did not deprive [Petitioner] of his opportunity for federal review,” Petitioner “himself failed to pursue his available remedies in a timely fashion.” Sanchez v. Lytle, 166 F.3d 348 (10th Cir. 1998). The Court therefore finds the application of the § 2244 limitations period would not violate Petitioner's due process rights.
Finally, Petitioner suggests his petition should be considered timely because he retains “the right of writ of habeas corpus . . . to be released from imprisonment after . . . an unlawful arrest.” Doc. 20, at 13. As explained above, supra § III.B., the AEDPA gives petitioners one year from the date their conviction was finalized, subject to tolling, to avail themselves of the writ. Any arguments Petitioner may have about the legality of his arrest must have been brought within that statutory limitations period.
The undersigned finds Petitioner's constitutional arguments for the timeliness of his habeas petition unavailing and concludes the petition was untimely filed under the AEDPA.
IV. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends dismissal of this habeas petition without prejudice to refiling.
The undersigned advises Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before April 29, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions 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 this matter.