Opinion
CIV-21-960-F
05-18-2022
ANTHONY MICHAEL JACKSON, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Anthony Michael Jackson (“Petitioner”), a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Stephen P. Friot referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). (Doc. 4). Respondent filed a Motion to Dismiss and brief in support, arguing the Petition is time-barred. (Docs. 10, 11). Petitioner has responded. (Doc. 12). For the reasons set forth below, the undersigned recommends that Respondent's Motion (Doc. 10) be granted and Petitioner's application for habeas relief be dismissed with prejudice.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Procedural History
A. Petitioner's Caddo County Sentence
Petitioner is a state inmate currently incarcerated at the James Crabtree Correctional Center in Helena, Oklahoma. (Doc. 1, at 1). Petitioner is registered citizen of the Cherokee Nation. (Doc. 11, at Ex. 15). On May 1, 2017, Petitioner entered a plea of guilty to Child Sexual Abuse in Caddo County District Court. (Doc. 1, at 1; Doc. 11, at Ex. 1, at 1). The court sentenced Petitioner to 30 years of imprisonment, with all but the first 20 years suspended. (Id.) Petitioner neither sought to withdraw his guilty plea nor appealed his judgment or sentence. (Doc. 1, at 2, 5).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On April 16, 2018, Petitioner filed an Application for Post-Conviction Relief in Caddo County arguing that the district court did not have jurisdiction over his crime because the Major Crimes Act, 18 U.S.C. § 1153, gives the federal government exclusive jurisdiction to prosecute crimes committed by Indians in Indian Country. (Doc. 1, at 3; Doc. 11, at Ex. 3, at 3). Petitioner cited, in support of his argument, Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017). (Doc. 11, at Ex. 3, at 11).
On November 8, 2018, the Caddo County District Court denied Petitioner's Application because Petitioner's crime did not occur in “Indian Country.” (Doc. 1, at 3; Doc. 11, at Ex. 9, at 2). The district court found that Petitioner's crime occurred in Carnegie, Oklahoma, and “[t]he town of Carnegie is not within the bounds of any recognized reservation as it is within the bounds of the land ceded to the United States of America under the ‘Jerome Agreement.'” (Doc. 11, at Ex. 9, at 2). Petitioner appealed the denial of his Application to the Oklahoma Court of Criminal Appeals (“OCCA”). (Doc. 1, at 6).
On February 5, 2019, the OCCA affirmed the denial of Petitioner's Application. (Id.; Doc. 11, at Ex. 10, at 3). The OCCA noted the certiorari petition pending before the United States Supreme Court in Murphy, and thus held that “[a]ny post-conviction application based upon the Tenth Circuit's holding in Murphy and the application of its holding to other Indian lands is premature.” (Id. at 2-3). The OCCA further noted that the “Petitioner has not shown Murphy has any application to his crime and that the district court erred in denying him post-conviction relief.” (Id. at 3).
On July 20, 2020, Petitioner filed a supplemental brief in the appeal of his Application, based on the United States Supreme Court's July 9, 2020, holding in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). (Id. at Ex. 11, at 2). The OCCA dismissed the supplemental brief on August 7, 2020, noting that “[a]s Petitioner has nothing pending in this Court, he must first seek relief in the District Court with a claim based on McGirt.” (Id.)
On August 31, 2020, Petitioner filed a Motion to Dismiss for Lack of Jurisdiction in Caddo County, claiming the state lacked jurisdiction over his crime and citing McGirt. (Doc. 1, at 3-4; Doc. 11, at Ex. 12, at 1-2). In his Motion, Petitioner claimed that his crime “occurred within the boundaries of the Wichita, Caddo, and Delaware Reservation,” and that “the Treaties with the United States, Cherokee Nation, and/or 18 U.S.C.A. § 1151, § 1153 operate to deny the State of Oklahoma criminal jurisdiction” in his case. (Id. at 1).
On December 8, 2020, the Caddo County District Court denied Petitioner's Motion. (Id. at Ex. 13, at 3). The district court again found that Petitioner's crime “occurred in the city limits of the town of Carnegie,” and therefore did not occur in “Indian Country.” (Id. at 2). Petitioner attempted to appeal the denial of his Motion, but the OCCA declined jurisdiction on February 24, 2021. (Id. at Ex. 14, at 1.)
C. The Petition
On September 8, 2021, Petitioner filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254, challenging his Caddo County sentence. (Doc. 1, at 14). 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)). He asserts he is an enrolled member of the Cherokee Nation, and the crime for which he was convicted “occurred at 520 N. Highway 58, Carnegie, OK 73015.” (Doc. 1, at 5). Based on these facts, he asserts Oklahoma did not have jurisdiction to prosecute him based on “federal statute (18 U.S.C. § 1153), lack of congressional authorization and treaty provisions.” (Id.)
II. 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 May 11, 2017. 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 May 12, 2018, to file his habeas petition, absent any tolling event. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Petitioner's one-year limitation period was tolled by his Application for PostConviction Relief in Caddo County, from its filing on April 16, 2018, until February 5, 2019, when the OCCA affirmed its denial on appeal. See 28 U.S.C. § 2244(d)(2). Petitioner therefore had 26 days, or until March 3, 2019, to file his habeas petition. However, the Petition in this matter was filed on September 8, 2021. Petitioner's attempts to challenge the jurisdiction of the state after the limitations period had already expired 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 is untimely under § 2244(d)(1)(A).
2. 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.” 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.
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.
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.”)), see further Jones v. Pettigrew, 2022 WL 176139, at *1 (10th Cir. Jan. 20, 2022) (denying certificate of appealability and holding that “upon review of the district court's thorough and well-reasoned order, we conclude that reasonable jurists wouldn't debate the correctness of the district court's decision that Jones's petition was untimely.”); Shields v. Crow, 2022 WL 291723, at *3 (W.D. Okla. Jan. 13, 2022), report and recommendation adopted by 2022 WL 291622 (W.D. Okla. Jan. 31, 2022); 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 and thus Petitioner's action is untimely.
The undersigned does not reach the issue of retroactivity because McGirt did not announce a newly recognized constitutional right.
3. 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 13). 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 crime occurred in Carnegie, Oklahoma. (Doc. 1, at 5). 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.
4. Petitioner Is Not Entitled to Equitable Tolling or The Actual Innocence Exception.
In response to Respondent's Motion to Dismiss, Petitioner argues that he “is entitled to equitable tolling because of the extraordinary general misunderstanding between federal authorities and state authorities as to whether any reservations continued to exist in Oklahoma.” (Doc. 12, at 2). Petitioner further argues that this “misunderstanding was not cleared up until the McGirt decision,” and that he “diligently pursued his jurisdictional claims from the moment that Tenth Circuit Court of Appeals announced that the Muscogee (Creek) Nation reservation continued to exist in Murphy v. Royal, 875 F.2d 896 (10th Cir. 2017).” (Id.)
Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Generally, “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.” Hollandv. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner has not established that he diligently pursued his federal habeas claim or that extraordinary circumstances beyond his control prevented him from filing a timely federal habeas petition. Holland, 560 U.S. at 649; see also Sanders v. Pettigrew, 2021 WL 3291792, at *1, 6 (E.D. Okla. Aug. 2, 2021) (finding “no evidence in the record to suggest that uncontrollable circumstances impeded him from timely filing his federal claim,” where the petitioner's “sole ground for relief is a claim of ineffective assistance of counsel with respect to a jurisdictional claim under McGirt,” as the petitioner argued “he is an Indian, his crimes occurred within the boundaries of the Choctaw and Chickasaw Reservations, and his crimes should have been prosecuted under the Major Crimes Act”).
Even accepting that McGirt significantly altered the understanding of the allocation of criminal jurisdiction in Oklahoma, [footnote omitted, see below] applying equitable tolling in this situation would effectively turn the doctrine of equitable tolling into a judicially-created equitable exception to § 2244(d)(1)'s one-year statute of limitations for all Oklahoma prisoners who were purportedly tried by a state court that lacked criminal jurisdiction. This would be contrary to the well-established principle that “[e]quitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.” Wallace v. Kato, 549 U.S. 384, 396 (2007). Rowbotham v. Nunn, 2022 WL 1523195, at *3 (N.D. Okla. May 13, 2022); see id at fn. 4 (“This Court previously acknowledged McGirt's impact on the understanding of Oklahoma's criminal jurisdiction, but also recognized that ‘Indian-country jurisdictional claims did not spring into existence' only with the 2020 decision in McGirt and the related case of Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), aff'd sub nom. Sharp v. Murphy, 140 S.Ct. 2412 (2020).”). Petitioner therefore has not met his burden to show the equitable tolling is warranted based on McGirt.
Petitioner's only remaining path around the § 2244(d)(1)(A) deadline would be a viable actual innocence claim. “[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief,” such as an otherwise-untimely petition. McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Petitioner's claim that the state court lacked jurisdiction, unaccompanied by any new evidence, is insufficient to credibly show actual innocence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (An actual innocence claim “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.”).
III. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that Respondent's Motion to Dismiss (Doc. 10) be granted and 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 June 8, 2022, 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.