Opinion
CIV-22-268-G
07-26-2022
JAMES ISAAC SOUTH, Petitioner, v. SCOTT CROW, Director of the Oklahoma Department of Corrections,[1] Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner James Isaac South, 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 Charles B. Goodwin referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5. 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.
Petitioner's motion for an evidentiary hearing, Doc. 3, is now moot.
I. Petitioner's state-court procedural background and federal habeas claims.
Petitioner pled guilty to one count of first-degree murder, one count of first-degree robbery, one count of burglary, and one count of conspiracy to commit burglary. Doc. 1, at 1; see also State v. South, No. CF-2012-777A, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&n umber=CF-2012-00777A&cmid=22312 (last visited July 16, 2022). The state district court entered judgment and sentenced Petitioner to life without possibility of parole on November 7, 2013. Doc. 1, at 1; South, Docket Entry dated Nov. 7, 2013. On September 17, 2014, Petitioner filed a motion for review of sentence, which was denied the same day. South, Docket Entry dated Sept. 17, 2014. On November 2, 2020, Petitioner applied for state post-conviction relief. Id., Docket Entry dated Nov. 2, 2020. After an evidentiary hearing, the state court denied post-conviction relief. Id., Docket Entries dated April 6, 2021, and April 22, 2021. Petitioner appealed the state district court's denial, and the Oklahoma Court of Criminal Appeals affirmed. Id., Docket Entries dated June 21, 2021, and Oct. 18, 2021.
The undersigned takes judicial notice of the docket report in Plaintiff's state-court proceeding. United States v. Ahidley, 486 F.3d 1184, 1192 (10th Cir. 2007) (exercising discretion “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”).
Petitioner sought habeas relief in this Court on March 7, 2022. He claims Oklahoma lacked jurisdiction to prosecute him because “the crime happened in ‘Indian Country' and Petitioner is a[n] ‘Indian.'” Doc. 1, at 5; see McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) (holding that because the Muscogee (Creek) Nation remains Indian country within the meaning of the Major Crimes Act, the state of Oklahoma lacks jurisdiction to prosecute certain crimes committed within that reservation's boundaries). Relatedly, Petitioner claims he “received ineffective assistance of counsel” because his attorney “failed to challenge the state jurisdiction.” Id. at 7; see Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner attests that he placed this petition in prison mail system on this date. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (explaining prison mailbox rule); Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to a § 2254 petition). Because the question is not dispositive here, the Court assumes Petitioner is entitled to benefit from the prison mailbox rule. See Birch v. Crow, 2020 WL 437553, at *6 (N.D. Okla. Jan. 28, 2020) (in which the respondent state of Oklahoma acknowledged that the Davis Correctional Facility has a prison legal mail system), appeal dismissed, 2020 WL 5167197 (10th Cir. Apr. 10, 2020).
II. Screening.
Rule 4 requires this Court to promptly review habeas petitions and calls for dismissal “[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. And this Court may dismiss an action sua sponte if it determines that it lacks jurisdiction. Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”).
III. Petitioner did not timely file his petition.
A. An explanation of the Antiterrorism and Effective Death Penalty (AEDPA) limitations period.
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 post-conviction 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 to file for habeas relief is based on the date his conviction was finalized, under § 2244(d)(1)(A). The Court will first explain that Petitioner cannot invoke § 2244(d)(1)(D) to secure a later deadline based on McGirt. Then, the Court will calculate Petitioner's deadline to file for habeas relief under § 2244(d)(1)(A).
1. Petitioner improperly invokes 28 U.S.C. § 2244(d)(1)(D) because he knew or should have known the factual predicate of his claims before McGirt.
Petitioner argues his statutory year to file for habeas relief under the AEDPA began on October 15, 2021, the date on which the OCCA affirmed the denial of his post-conviction appeal. Doc. 1, at 13-14; see also South, Docket Entry dated Oct. 18, 2021 (Mandate). He argues that “[t]he state has just now recognized in McGirt that 18 U.S.C. § 1151(a) law[, The Major Crimes Act,] applies in Oklahoma,” and that the state's recognition was “newly discovered evidence” “when Petitioner received a[n] evidentiary hearing in his post conviction” application. Doc. 1, at 13-14.
Petitioner also cannot successfully invoke § 2244(d)(1)(D) based on McGirt. The AEDPA allows for a commencement date to begin on the “date on which the factual predicate of the claims 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 alleged factual bases of Petitioner's claim are that he is a tribal member and that the crimes occurred on the Citizen Pottawatomie Nation. Doc. 1, at 13-14; see also South, Docket Entry dated April 22, 2021 (state district court's order denying post-conviction relief and written findings). 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 though McGirt “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 v. Harding, No. CIV-21-183-PRW, 2021 WL 4714662, at *5 (W.D. Okla. Sept. 15, 2021), adopted, 2021 WL 4711680 (W.D. Okla. Oct. 8, 2021); see Seals, 2020 WL 6038760, at *4 (“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 cannot point to any newly discovered evidence, Petitioner cannot benefit from § 2244(d)(1)(D).
2. Petitioner's deadline to file for habeas relief under 28 U.S.C. § 2244(d)(1)(A).
a. Petitioner's conviction finalized under § 2244(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, 234 F.3d at 1120. “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.'” Collins v. Bear, 698 Fed.Appx. 946, 949 (10th Cir. 2017) (quoting Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)). In order to appeal from a conviction on a guilty plea, a defendant must first file an application 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 was convicted and sentenced on November 7, 2013, so his conviction became final on November 17, 2013. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding petitioner's convictions on guilty pleas were final ten days after entry of each judgment and sentence under OCCA Rule 4.2(A) because petitioner had failed to appeal).
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))). So Petitioner's statutory year to file a habeas petition began on November 18, 2013, and expired one year later on November 18, 2014. See Harris, 642 F.3d at 906 n.6 (10th Cir. 2011).
The AEDPA allows for tolling of the limitation period while a properly filed state 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). This provision only applies, though, to post-conviction applications filed within the statutory year to file for habeas relief. 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.”). Petitioner did not apply for post-conviction relief until November 2, 2020, almost six years after his statutory year had run. He therefore is not entitled to statutory tolling under § 2244(d)(2).
Petitioner's habeas petition was therefore untimely filed under § 2244 of the AEDPA.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of Petitioner's habeas petition as untimely filed under 28 U.S.C. § 2244(d).
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 August 16, 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.