Opinion
CIV-22-25-JD
02-22-2022
HERMAN PITTS, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner Herman Pitts, an Oklahoma state prisoner appearing pro se, seeks habeas corpus relief under 28 U.S.C. § 2254. Doc. 1.United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The undersigned recommends dismissal of the petition as untimely, as “it plainly appears from the petition . . . that [P]etitioner is not entitled to relief in the district court ....” See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
“[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 Petitioner with notice, and he will have an opportunity to present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at * 3 (10th Cir. July 29, 1994) (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).
I. Petitioner's state-court procedural background.
Petitioner pleaded guilty to one charge of child sexual abuse, and the Grady County District Court sentenced him to life in prison on February 17, 2015. Doc. 1. Petitioner filed for post-conviction relief on August 31, 2020, but was denied. Id. Att. 1. Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA) on August 13, 2021, and the OCCA affirmed on December 1, 2021. Id. Att. 2. Petitioner sought relief in this Court on December 21, 2021. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (explaining inmate mailbox rule).
State v. Pitts, Case No. CF-2014-146 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=grady&number= CF-2014-00146&cmid=17944 (last visited Feb. 7, 2022) (Pitts I). The undersigned takes judicial notice of the docket sheet in Petitioner's state-court prosecution. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (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”).
The Court liberally construes Petitioner's pleadings because he proceeds pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). That said, the Court will not serve as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
II. Screening.
Rule 4 requires this Court to promptly review habeas petitions and promptly dismiss a petition “[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. Courts may sua sponte dismiss a § 2254 habeas petition as untimely when “untimeliness is clear from the face of the petition.” Kilgore v. Atty Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008).
III. Discussion.
Petitioner argues that treaties between the United States and the Chickasaw Nation preclude Oklahoma from exercising criminal jurisdiction within the Chickasaw Nation's boundaries. Doc. 1, at 5. He contends the State lacked jurisdiction to prosecute him because he “was charged and convicted of crimes that occurred in Grady [C]ounty which lies within the boundaries of the Chickasaw Nation.” Id. He maintains he did not raise this previously because the “issue did not ripen until Sizemore v. State, [485 P.3d 867 (Okla. Crim. App. 2021) and] McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).” Id.; see also id. at 13. In McGirt, the Supreme Court held the Muscogee (Creek) Nation remained a reservation, precluding the State's jurisdiction over certain crimes committed within that reservation's boundaries. 140 S.Ct. at 2459-60.
In Sizemore the OCCA held the Choctaw Nation had not been disestablished by Congress. 485 P.3d at 871, cert. denied, No. 21-326, 2022 WL 199582 (U.S. Jan. 24, 2022). The OCCA recognized in Bosse v. State, 499 P.3d 771, 774 (Okla. Crim. App. 2021), that the Chickasaw Reservation was never disestablished by Congress.
Petitioner argues his petition was timely because it was filed “within 1-year of McGirt and Sizemore.” Doc. 1, at 13. The undersigned disagrees. Based on precedent from this and neighboring districts, the undersigned concludes Petitioner's habeas petition was filed out of time.
A. An explanation of the limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
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 habeas relief.
Petitioner's deadline for habeas relief is based on the date his conviction was finalized under § 2244(d)(1)(A). While Petitioner does not specify which section of § 2244(d)(1) should secure him a later deadline based on McGirt, the Court will explain Petitioner cannot invoke either § 2244(d)(1)(C) or § 2244(d)(1)(D) to secure a later deadline. The Court will calculate Petitioner's deadline to file for habeas relief under § 2244(d)(1)(A) and explain why that deadline may not be statutorily or equitably tolled.
1. Petitioner cannot invoke 28 U.S.C. § 2244(d)(1)(C) because McGirt did not recognize a new constitutional right.
Petitioner maintains his petition is timely because “McGirt v. Oklahoma was decided July 9, 2020, which led to the Sizemore v. State OCCA decision in March 11, 2021 which establish[ed] the Chickasaw [R]eservation's continuance.” Doc. 1, at 13.
To the extent Petitioner relies on McGirt to invoke §2244(d)(1)(C), the Court finds that this provision does not apply. Under § 2244(d)(1)(C), the one-year limitation period begins to run on “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if [1] the right has been newly recognized by the Supreme Court and [2] made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C).
The McGirt Court determined that because Congress did not disestablish the Muscogee (Creek) Nation Reservation, the land within the boundaries of that reservation is “Indian country,” as defined in 18 U.S.C. § 1151(a), and Native Americans who commit major crimes, as defined in 18 U.S.C. § 1153(a), within the boundaries of the Muscogee (Creek) Nation Reservation are subject to prosecution in federal court rather than state court. 140 S.Ct. at 2459-60, 2474-78.
But for habeas purposes, this Court and those in neighboring districts have rejected the proposition that the date of the McGirt decision should be used as the commencement date under § 2244(d)(1)(C) for challenges to statecourt jurisdiction. Donahue v. Harding, No. CIV-21-183-PRW, 2021 WL 4714662, at *5 (W.D. Okla. Sept. 15, 2021) (“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,' a non-constitutional issue.”) (quoting McGirt, 140 S.Ct. at 2459), adopted, 2021 WL 4711680 (W.D. Okla. Oct. 8, 2021); Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *2 (W.D. Okla. Aug. 27, 2021), appeal docketed, No. 21-6106 (10th Cir. Sept. 14, 2021); see, e.g., 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 newly recognize any constitutional rights in McGirt.”), cert. of appealability denied, No. 21-5060, 2021 WL 5072980 (10th Cir. Nov. 2, 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”). This Court “finds no basis for application of 28 U.S.C. § 2244(d)(1)(C) or for reliance upon a later commencement date of the limitations period pursuant to that subsection.” Jones, 2021 WL 3854755, at *3.
The OCCA held that, for purposes of post-conviction review, McGirt does not apply retroactively to convictions that were final when the decision was handed down. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021) (“[W]e now hold that McGirt and our postMcGirt decisions recognizing these reservations shall not apply retroactively to void a conviction that was final when McGirt was decided.”).
2. Petitioner cannot invoke 28 U.S.C. § 2244(d)(1)(D) because he knew or should have known the factual predicate of his claims before McGirt .
Petitioner also cannot successfully invoke § 2244(d)(1)(D) based on McGirt. See Doc. 1, at 5, 13. AEDPA allows for a commencement date to begin 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). “[T]he 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) (applying § 2244(d)(1)(D) and citing Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000)).
Here, the factual basis of Petitioner's claim is that the crime occurred on the Chickasaw Reservation. Doc. 1, at 5, 13. The undersigned finds that Petitioner would have either known this fact or could have discovered it 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 though McGirt may have “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).” Donahue, No. CIV-21-183-PRW, 2021 WL 4714662, at *5; see id. (“Thus, even if he did not understand the legal significance of those facts until he learned of the Murphy [v. Royal, 875 F.3d 896 (10th Cir. 2017)] 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 he does not point to any newly discovered evidence, Petitioner cannot benefit from § 2244(d)(1)(D).
3. Petitioner's deadline to file for habeas relief under 28 U.S.C. § 2244(d)(1)(A).
a. Petitioner's conviction became finalized under § 22244(d)(1)(A).
Unless a petitioner shows otherwise, the limitations period typically 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). Petitioner moved to withdraw his guilty plea within ten days of the district court's judgment and sentence. Pitts I, Docket Entry Dated Feb. 19, 2015 (Application to Withdraw Plea). After the district court denied the motion, Petitioner appealed to the OCCA, which affirmed the district court's denial on November 6, 2015. Id., Docket Entry Dated Nov. 6, 2015 (Mandate-Denied). Because he did not petition for certiorari with the United States Supreme Court, Petitioner's conviction became final on February 4, 2016, ninety days after the OCCA affirmed the district court's denial of his motion to withdraw his guilty plea. See Collins v. Bear, 698 Fed.Appx. 946, 949 (10th Cir. 2017) (“When the petitioner hasn't petitioned for certiorari with the Supreme Court, the one-year period begins to run ‘after the time for filing a petition for certiorari with the Supreme Court has passed.'” (quoting Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)); Sup. Ct. R. 13.1 (certiorari petition must be filed within ninety days after entry of judgment).
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))). Thus, Petitioner's statutory year to file a habeas petition began on February 5, 2016, and, absent tolling, would have expired one year later on February 6, 2017. Harris, 642 F.3d at 906 n.6 (10th Cir. 2011).
Petitioner's statutory year ended on February 4, 2017. Since that was a Saturday, his practical deadline was Monday, February 6, 2017. See LCvR6.1 (If the filing date falls on a “Saturday, Sunday, legal holiday, or day when the clerk's office is inaccessible, then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.”).
b. Petitioner's limitation period was not statutorily tolled under § 2244(d)(2).
The AEDPA allows for tolling of the limitation period while a properly filed 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). However, “[o]nly state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Because Petitioner did not apply for postconviction relief until August 31, 2020, well past the one year allowed by AEDPA, his application did not toll the statute of limitations. See Doc. 1, at 7. Petitioner's application is therefore untimely filed unless he can overcome this procedural bar.
c. Petitioner is not entitled to equitable tolling or the actual innocence exception.
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.” Holland, 560 U.S. at 649 (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
As explained supra §§ III.B.1 & 2, Petitioner cannot establish 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, 2021 WL 3291792, at *1, 6 (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”); cf. Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (holding the petitioner was not entitled to equitable tolling for the time between his conviction and an intervening change in state law because it “would open the door for any state prisoner to file a habeas petition anytime a state court issues a clarification of state law” and “[s]uch an interpretation cannot be squared with the goals of finality that are central to AEDPA”). He 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.”).
The undersigned finds no basis to grant equitable tolling of, or an equitable exception to, the one-year limitation period, either based on McGirt or on actual innocence grounds. His petition is therefore untimely filed.
IV. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends dismissal of Petitioner's habeas petition as untimely filed under 28 U.S.C. § 2244(d).
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 March 15, 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 referred to the undersigned Magistrate Judge in this matter.
ENTERED.