Opinion
21-5088
01-03-2022
In re: STEPHEN CRAIG BURNETT, Movant.
(D.C. No. 4:17-CV-00596-JED-JFJ) (N.D. Okla.)
Before TYMKOVICH, Chief Judge, BACHARACH and McHUGH, Circuit Judges.
ORDER
Stephen Craig Burnett, an Oklahoma prisoner proceeding pro se, seeks authorization to file a second or successive 28 U.S.C. § 2254 habeas application. We deny authorization.
In 1994, Mr. Burnett pleaded guilty to first degree murder and larceny. He was sentenced to life in prison. He filed his first § 2254 habeas application in 1997. The district court denied relief and Mr. Burnett did not appeal.
He now seeks authorization to assert a claim that the State of Oklahoma lacked jurisdiction to prosecute him because the charged offenses occurred in Indian Country. He bases this claim on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), which he contends announced a new rule of constitutional law. In McGirt, the Supreme Court held that the territory in Oklahoma reserved for the Creek Nation since the 19th century remains "'Indian country'" for purposes of exclusive federal jurisdiction over "certain enumerated offenses" committed "within 'the Indian country'" by an "'Indian.'" 140 S.Ct. at 2459 (quoting 18 U.S.C. § 1153(a)); see id. at 2459-60. In light of this holding, the Court reversed a decision by the Oklahoma Court of Criminal Appeals upholding the state-court conviction of an enrolled member of an Indian tribe for crimes committed on the Creek Reservation. See id. at 2459-60, 2482.
We may grant authorization if Mr. Burnett shows that his "claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). He has not made this showing. First, McGirt did not announce a new rule of constitutional law; instead, it interpreted various statutes and treaties and concluded that because Congress never disestablished the Creek Reservation it remains Indian Country today. See 140 S.Ct. at 2459, 2462-71, 2474-78, 2482. Nor does Mr. Burnett show that the Supreme Court has made McGirt retroactive to cases on collateral review. See In re Jones, 847 F.3d 1293, 1295 (10th Cir. 2017) ("The only way the Supreme Court could make a rule retroactively applicable is through a holding to that effect." (brackets and internal quotation marks omitted)).
Accordingly, we deny Mr. Burnett's motion for authorization. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).