Opinion
Case No. CIV-18-616-R
07-23-2019
RODNEY DERON JACKSON, Petitioner, v. JASON BRYANT, Respondent.
REPORT AND RECOMMENDATION
Petitioner, Rodney Deron Jackson, appearing pro se, filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Pet.) [Doc. No. 1] challenging his state court convictions. United States District Judge David L. Russell has referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). The Court ordered Petitioner to show cause why his Petition was not untimely, [Doc. No. 7], and Petitioner responded (Petr's Resp.) [Doc. No. 8]. In accordance with Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, it is recommended that the Petition be summarily dismissed.
I. Petitioner's Claim for Relief and Relevant History
Petitioner entered guilty pleas to Case Nos. CF-1987-676, CF-1992-538, and CF-1992-1374 on, "March 23, 1987; July 30, 1992," in Oklahoma County District Court. Pet. at 2. Petitioner now challenges those convictions because the "[t]rial [c]ourt did have jurisdiction in that Petitioner and the victim are Indians within the meaning of federal law and the crime occurred in Indian Count[r]y as defined by 18 [U.C.S.] § 1151." Id. at 6. Petitioner raised this claim for the first time in an application for post-conviction relief in October 2017, see id. at 3, 7-8, and the state district court denied relief in December 2017. See id. at 3, 8. Petitioner appealed, and the Oklahoma Court of Criminal Appeals affirmed that decision in May 2018. See id.
Page citations refer to this Court's CM/ECF pagination.
The Court judicially notices that Petitioner filed the application for post-conviction relief in October 2017. See https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahoma&number=CF-1987-676 (last accessed July 22, 2019).
Petitioner provided his post-conviction appellate case number - PC-2018-42 - and the Court judicially notices that the decision was rendered in May 2018. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2018 42&cmid=123168 (last accessed July 22, 2019). --------
Petitioner filed the present action on June 25, 2018. Responding to the Court's Order, Petitioner argues he did not know about the State's jurisdictional defect until the Tenth Circuit's ruling in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) and claims the decision is "tantamount to extraordinary circumstances." Petr's Resp. at 2.
In Murphy, an Oklahoma death-row inmate and member of the Muscogee Creek Nation argued, under the Major Crimes Act, that because the Creek Reservation (where the crime occurred) was "Indian country," the state court lacked jurisdiction over his charges. Murphy, 875 F.3d at 907-908 (citation omitted). In an extremely complex decision, the Tenth Circuit held that the Creek Reservation remained Indian country for purposes of the Act and, therefore, the federal government and not the state had the sole authority to prosecute the petitioner. See id. at 903-04, 914-67.
II. Screening Requirement
Rule 4 requires this Court to review habeas petitions promptly and to 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 of the Rules Governing Section 2254 Cases. The Court is permitted, under this Rule, "to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 247 U.S. 198, 209 (2006).
III. Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sets forth a one-year statute of limitation for prisoners to challenge their state-court convictions or sentences. It states:
A [one]-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. 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;28 U.S.C. § 2244(d)(1)(A)-(D).
(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.
With liberal construction, Petitioner's response to the Court's Order could invoke either § 2244(d)(1)(C) or (D). See Petr's Resp. at 1-2. However, § 2244(d)(1)(C) does not apply because Murphy is not a Supreme Court decision. See Canady v. Bryant, -- Fed. App'x --, 2019 WL 2524293, at *2 (10th Cir. 2019) (holding Murphy "is not a Supreme Court decision and therefore could not create new law relevant under § 2244(d)(1)(C)"). And, Petitioner 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 guilty pleas even if he did not understand the legal significance of those facts until he learned of the Murphy decision. So, § 2244(d)(1)(D) also does not apply. See Parris v. Whitten, Case No. 18-CV-0443-TCK-FHM, 2019 WL 2928754, at *4 (N.D. Okla. July 8, 2019) (finding § 2244(d)(1)(D) did not apply to petitioner's Murphy claim as he knew the factual predicates - if not the legal implications - at the time he pleaded guilty).
Petitioner does not allege any State impediment to filing under § 2244(d)(1)(B), so the Court turns to the timeliness under § 2244(d)(1)(A). Applying this subsection, Petitioner's statute of limitations would have begun running on the date his convictions were final. See id. But those convictions pre-date the AEDPA's enactment, see supra at 1, so his statute of limitations began to run on April 24, 1996. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) ("Where a conviction became final before AEDPA took effect . . . the limitations period for a federal habeas petition starts on AEDPA's effective date, April 24, 1996). Thus, without tolling, Petitioner's limitations period expired one year later, on April 24, 1997.
1. Statutory Tolling
The AEDPA limitations period may be statutorily tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Here, however, Petitioner's application for post-conviction relief was not filed until October 2017 - over nineteen years after the statute of limitations had already expired. See supra at 2, 4. Thus, it did not contribute to statutory tolling. See Fisher v. Gibson, 262 F.3d 1135, 1442-43 (10th Cir. 2001) (holding petitioner's state court collateral challenges, filed after the federal statute of limitations had already expired, do not act to toll the limitations period).
2. Equitable Tolling
The limitations period set forth in § 2244(d) may also be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010). But, a petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. (internal quotations and citation omitted). Circumstances appropriate for equitable tolling include "when an adversary's conduct - or other uncontrollable circumstances - prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). In the Tenth Circuit, "equitable tolling is a rare remedy to be applied in unusual circumstances." Al-Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir. 2015).
Here, Petitioner does not allege any facts that would implicate equitable tolling. See Pet., passim & Petr's Resp. at 1-2.
3. Fundamental Miscarriage of Justice
Petitioner does argue the Murphy decision is "tantamount to extraordinary circumstances in American [h]istory and in American jurisprudence." Petr's Resp. at 2. But even to the extent this statement could be read as invoking an equitable exception to the statute of limitations bar under the fundamental miscarriage of justice theory, it would fail. That is, this exception allows a petitioner to bypass the AEDPA's statute of limitations only upon a credible showing of actual innocence. See United States v. Springer, 875 F.3d 968, 976 (10th Cir. 2017) (explaining the Supreme Court's decision in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) as holding that the "'fundamental miscarriage of justice exception[] is grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons'" (citing McQuiggin, 133 S. Ct. at 1931)); see also Jones v. Martin, 622 F. App'x 738, 739 (10th Cir. 2015) ("While the untimely filing of a habeas petition may be excused to avoid a fundamental miscarriage of justice, this equitable exception applies only when "'new evidence shows 'it is more likely than not that no reasonable juror would have convicted the petitioner.'" (citation omitted and brackets omitted)). Petitioner does not allege any facts which would implicate his actual innocence, see Pet., passim, and courts have rejected the argument that the Murphy decision is otherwise grounds for equitable tolling or an equitable exception. See Canady v. Bear, No. CIV-18-677-HE, 2018 WL 3824381, at *3 (W.D. Okla. Aug. 2, 2018) ("[T]he Murphy decision does not provide an extraordinary circumstance warranting equitable tolling."), adopted, 2018 WL 3812250 (W.D. Okla. Aug. 10, 2018), certificate of appealability denied, 2019 WL 2524293 (10th Cir. June 19, 2019); Duffield v. Bear, No. CIV-18-739-SLP, 2019 WL 2092577, at *2 (W.D. Okla. May 13, 2019) (dismissing petitioner's untimely habeas claims because "the issuance of the Murphy opinion by the Tenth Circuit does not provide an exception to the applicable statute of limitations for Petitioner's claims" and petitioner's allegations otherwise rely only on his alleged legal - not factual - innocence); Parris, 2019 WL 2928754, at *5-6 (discussing the Murphy decision and finding no equitable tolling exception absent allegations of actual innocence).
4. Summary
In sum, the Court finds that Petitioner's statute of limitations began to run on April 24, 1996 and he is not entitled to statutory tolling or equitable tolling. Thus, his statute of limitations expired on April 24, 1997 and he has not alleged a sufficient equitable exception to the statute of limitations bar.
RECOMMENDATION
For the foregoing reasons, it is recommended that the Court summarily dismiss Petitioner's Petition [Doc. No. 1] as untimely.
NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 13, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the District Judge's referral in this matter.
ENTERED this 23rd day of July, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE