Opinion
CIV-22-394-JD
08-12-2022
JEFFREY RACKLEY, Petitioner, v. RICK WHITTEN, Warden,[1] Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner Jeffrey Rackley, proceeding pro se, brings this action under 28 U.S.C. § 2254 seeking habeas corpus relief from his state conviction and sentence. Doc. 1.United States District Judge Jodi W. Dishman referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. After careful examination of the petition, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends dismissal of the petition as untimely.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Procedural Background.
On February 23, 2015, Petitioner pleaded guilty to one count of manslaughter in the first degree on Oklahoma County District Court. Doc. 1, at 2; see also State v. Rackley, Case No. CF-2012-4725, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2012-4725&cmid=2893757, Docket Entry dated Feb. 23, 2015 (last visited Aug. 11, 2022) (Rackley). The state court sentenced Petitioner to thirty years' imprisonment on April 17, 2015, id., Docket Entry dated Apr. 17, 2015, modifying that sentence to twenty years' imprisonment on April 1, 2016, on Petitioner's request, id. Docket Entry dated Apr. 1, 2016. Petitioner applied for post-conviction relief on September 2, 2021. Id., Docket Entry dated Sept. 2, 2021. Petitioner claimed the State lacked jurisdiction to convict and punish him under McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Doc. 1, at 3; see also id., Ex. 1. Petitioner also claimed that his right to due process was violated because of disparate sentencing of Indians and non-Indians. Doc. 1, at 3 & Ex. 1. The district court denied Petitioner's post-conviction motion, and the Oklahoma Court of Criminal Appeals affirmed, relying on Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021). Id.
The undersigned takes judicial notice of the docket report in Petitioner's state-court proceeding. See United States v. Ahidley, 486 F.3d 1184, 1192 (10th Cir. 2007) (exercising jurisdiction “to take judicial notice of publicly-filed records in our 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 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. Att'y Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008).
Because the Court recommends dismissal of this petition as untimely, the Court will not reach the merits of Petitioner's two proposed grounds for habeas relief.
First, Petitioner claims the state of Oklahoma lacked jurisdiction to convict him under McGirt. Doc. 1, at 5-18. Relatedly, he argues his guilty plea, given to a court lacking jurisdiction, was invalid, meaning he is actually innocent of his crimes “until such time as he is subjected to a judicial process within provision of the lawful authority over the Creek (Muscogee) Nation.” Id. at 17. He also argues that he pleaded guilty “upon advisement of incompetent counsel”-whom he argues should have advised him of the state court's lack of jurisdiction-again meaning he is “actually innocent of the crimes he was convicted for by a state court that lacked legal authority to have done so.” Id. at 15. Second, Petitioner claims he “is being denied equal protection of the law as a result of race.” Id. at 19. He argues that “several American Indians have had their cases reversed and remanded to federal jurisdiction” while “[a]ny non-Indian from the same county as an Indian, on Indian territory, is denied any chance to be sentenced equally to their Indian counterpart” even though “the crime they are being prosecuted for did not take place” within state jurisdiction. Id. at 20.
III. Discussion.
A. Limitations period established by the Antiterrorism 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.
Under 28 U.S.C. § 2244(d)(1)(A), the Petitioner's deadline to file for habeas relief is based on the date his conviction was finalized. The Court will first explain why Petitioner cannot invoke McGirt to secure a later start date under either § 2244(d)(1)(C) or § 2244(d)(1)(D).The Court will then calculate Petitioner's deadline to file for habeas relief under § 2244(d)(1)(A), accounting for statutory tolling, and finally explaining why Petitioner is not entitled to an equitable exception based on actual innocence.
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).
1. Petitioner cannot invoke McGirt to secure a later start date under 28 U.S.C. § 2244(d)(1)(C) or § 2244(d)(1)(D).
Because of McGirt, Petitioner claims that the “[p]roper jurisdiction for [his] prosecution was and remains in federal court pursuant to the Major Crimes Act.” Doc. 1, at 10. McGirt held that Congress did not disestablish the Muscogee (Creek) Nation reservation, so the land within the boundaries of the reservation is “Indian country” and, for purposes of the Major Crimes Act, Native Americans who commit major crimes within the Muscogee (Creek) Nation Reservation are subject to prosecution in federal court rather than state court. 140 S.Ct. at 2459-60, 2474-78. Liberally construed, Petitioner's argument could invoke either § 2244(d)(1)(C) or § 2244(d)(1)(D).
Petitioner does not state whether he is Indian. Rather, Petitioner makes an equal protection claim alleging a disparity in sentencing between Indians and non-Indians in Indian country. The merits of this claim will not be addressed as these allegations do not affect the timeliness of the petition.
Under § 2244(d)(1)(C), the one-year limitation period runs from “the date on which [a] 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).
Petitioner may not invoke McGirt to secure a later start date under § 2244(d)(1)(C). For habeas purposes, this Court and those in neighboring districts have rejected the argument that the date of the McGirt decision may be used as the commencement date under § 2244(d)(1)(C) for challenges to state-court jurisdiction. E.g., 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); 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 v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021).
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, 497 P.3d at 689 (“[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.”).
Under § 2244(d)(1)(D), the one-year statutory limitations period runs from “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, 234 F.3d at 1120).
Here, the factual basis of Petitioner's claim is that the crime occurred on the Creek (Muscogee) Nation. Doc. 1, at 17. 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 . . . 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). Because he does not point to any newly discovered evidence, Petitioner cannot benefit from § 2244(d)(1)(D).
Petitioner also contends that the habeas petition is timely because “issues of subject matter jurisdiction are never waived and can therefore be raised on collateral appeal.” Doc. 1, at 7 (citing Murphy, 875 F.3d at 907 n.5). Although jurisdictional issues are never waived and can be raised on collateral attack after a conviction has become final, United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993), that remains true only for petitions filed within the relevant limitations period, accounting for statutory tolling, which is unavailable here, Doak v. Nunn, No. CIV-21-1032-D, 2022 WL 1228813, at *3 (W.D. Okla. Jan. 21, 2022) (“Petitioner cannot invoke either § 2244(d)(1)(C) or § 2244(d)(1)(D) to secure a later deadline based on McGirt.”), adopted, 2022 WL 987656 (W.D. Okla. Mar. 31, 2022). Cf. United States v. Cuch, 79 F.3d 987, 990 (10th Cir. 1996) (“The Supreme Court can and does limit the retroactive application of subject matter jurisdiction rulings.”). And a suspected “lack of jurisdiction in the trial court does not render the petition timely.” See Voyles v. Crow, No. CIV-22-71-F, 2022 WL 954993, at *4 (W.D. Okla. Mar. 14, 2022) (“[T]here is no exception in 28 U.S.C. § 2244(d)(1) for a habeas claim based on a trial court's alleged lack of subject matter jurisdiction.”).
2. Conviction finalized under 28 U.S.C. § 2244(d)(1)(A).
Unless a petitioner shows otherwise, the limitations period generally runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A); see also Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (“The limitations period generally runs from the date on which the state judgment became final after direct appeal ....”). To appeal from a conviction on a guilty plea, a defendant must first apply 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 pleaded guilty and was sentenced on April 17, 2015. Rackley, Docket Entry Dated Apr. 17, 2015. Petitioner did not move to withdraw his guilty plea within ten days of the district court's judgment and sentence, nor did he file a direct appeal. See id. His conviction therefore became final after the ten days to withdraw his plea had passed, on April 27, 2015. 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 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). Thus, Petitioner's statutory year to file a habeas petition began on April 28, 2015, and, absent tolling, would have expired one year later on April 27, 2016.
3. Statutory tolling.
The AEDPA allows for the tolling of a limitations period while a properly filed state post-conviction action is pending before the state court. 28 U.S.C. § 2244(d)(2). Petitioner was convicted on April 17, 2015. Before his statutory year had run, Petitioner filed a motion for sentence modification on March 24, 2016, Rackley, Docket Entry dated Mar. 24, 2016, and the trial court granted his motion nine days later, on April 1, 2016, Id., Docket Entry dated Apr. 1, 2016. Assuming without deciding that this motion statutorily tolled Petitioner's limitations period, the Court gives him the benefit of this properly filed motion. See Christensen v. Crow, No. CIV-21-782-J, 2022 WL 1214750, at *4 (W.D. Okla. Feb. 28, 2022) (“Assuming without deciding they are entitled to statutory tolling, the Court gives Petitioner the benefit of all his properly filed motions that challenged his conviction or sentence.”), adopted, 2022 WL 834964 (W.D. Okla. Mar. 21, 2022).
Given this assumption, Petitioner's statutory year to file his habeas petition was tolled for the nine days his motion for sentence modification was pending. See Doby v. Dowling, 632 Fed.Appx. 485, 488 (10th Cir. 2015) (“We can assume that [the petitioner's] limitation period was tolled while this motion [for judicial review and sentence modification] was pending . . . .”).As the postconviction action was pending for nine days, and the action was properly filed, Petitioner's statutory year to file a habeas petition is tolled nine days. Given this statutory tolling, Petitioner's deadline to file his habeas petition was May 6, 2016.
It remains an open question in the Tenth Circuit whether Petitioner's motion for a suspended or modified sentence or his later motion to set a judicial review hearing, both presumably filed under OKLA. STAT. tit. 22, § 982a, tolled the § 2244 limitations period. Randall v. Allbaugh, 662 Fed.Appx. 571, 573 n.3 (10th Cir. 2016) (“We will assume that a motion filed under OKLA. STAT. tit. 22, § 982a qualifies for tolling pursuant to § 2244(d)(2). This is an unresolved issue in our circuit.”). This Court need not decide that issue because Petitioner's habeas petition was untimely filed even if given the benefit of the time when this motion was pending.
4. Equitable exception based on actual innocence.
To prevent a miscarriage of justice, a “credible showing of actual innocence may allow a prisoner to pursue his constitutional claims.” See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). To establish actual innocence, a petitioner must allege that “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner's claims that the state court lacked jurisdiction and that he pleaded guilty on the bad advice of ineffective counsel-that is, claims of legal insufficiency unaccompanied by any new evidence-are inadequate to credibly show actual innocence. See Schlup, 513 U.S. at 324 (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 therefore finds no basis to grant an equitable exception to Petitioner's one-year limitations period on actual innocence grounds.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss Petitioner's habeas petition without prejudice.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before September 2, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff 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.