Opinion
CIV-24-179-PRW
03-28-2024
WINSTON RAY WALTERS, Petitioner, v. DAVID COLE, Respondent.[1]
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF Nos. 1 & 4). United States District Judge Patrick R. Wyrick has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Court DISMISS the Petition as untimely.
I. SCREENING REQUIREMENT
District courts must review habeas petitions promptly and 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, Rules Governing Section 2254 Cases. Additionally, “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). However, “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present her position by filing an objection to the Report and Recommendation. Further, when raising the issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred.” Day, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a § 2254 habeas petition sua sponte only if the petition is clearly untimely on its face. Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
II. PROCEDURAL BACKGROUND
On February 25, 2015, in Stephens County District Court Case No. CF-2013-419A, a jury convicted Mr. Walters of: (1) conjoint robbery, (2) first-degree burglary, (3) assault and battery with a deadly weapon, and (4) kidnapping. See State Court Docket Sheet, State of Oklahoma v. Walters, Case No. CF-2013-419A (Stephens Co. Dist. Ct. Feb. 25, 2015); (ECF No. 1:1). The Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's conviction on October 12, 2016. See Summary Opinion, Walters v. State of Oklahoma, Case No. F-2015-503 (Okla. Ct. Crim. App. Oct. 12, 2016).
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”) (citation omitted).
On January 10, 2018, Mr. Walters filed an Application for Post-Conviction Relief in the Stephens County District Court, but that court denied relief on April 12, 2018. See Order of Summary Disposition, Walters v. State of Oklahoma, Case No. CF-2013-419A (Stephens Co. Dist. Ct. April 12, 2018). On July 10, 2018, the OCCA affirmed the district court's denial of post-conviction relief. See Order Affirming Denial of Post-Conviction Relief, Walters v. State of Oklahoma, Case No. PC-2018-592 (Okla. Ct. Crim. App. July 10, 2018).
On May 3, 2021, Mr. Walters filed a second Application for Post-Conviction Relief in the Stephens County District Court, but that court denied relief on August 31, 2021. See Order of Denial, Walters v. State of Oklahoma, Case No. CF-2013-419A (Stephens Co. Dist. Ct. Aug. 31, 2021); (ECF No. 1:3). On December 3, 2021, the OCCA affirmed the district court's denial of post-conviction relief. See Order Affirming Denial of PostConviction Relief, Walters v. State of Oklahoma, Case No. PC-2021-1177 (Okla. Ct. Crim. App. Dec. 3, 2021). On February 16, 2024, Mr. Walters filed the instant habeas Petition, alleging: (1) a lack of jurisdiction in the trial court based on the fact that the alleged crime occurred on “Indian Country” which is subject to exclusive jurisdiction in federal court; (2) judicial bias; (3) a violation of Brady v. Maryland; and (4) insufficient evidence to support the conviction. (ECF No. 1).
373 U.S. 83 (1963).
III. THE AEDPA LIMITATIONS PERIOD
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year 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.
28 U.S.C. § 2244(d)(1)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
IV. THE FINALITY OF THE CONVICTION- 28 U.S.C. § 2244(d)(1)(A)
Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Because Petitioner did not seek review in the United States Supreme Court, his conviction became final on January 11, 2017-90 days following the OCCA's October 12, 2016 affirmance of Mr. Walters' conviction. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, without tolling, Petitioner's statute of limitations to file a habeas petition expired on January 11, 2018. But Mr. Walters filed the Petition on February 16, 2024, over six years after the limitations period had expired. (ECF No. 1:1). Thus, under § 2244(d)(1)(A), this action is untimely, absent statutory or equitable tolling or another exception.
See ECF No. 1:3.
V. STATUTORY TOLLING
The AEDPA limitations period is tolled pending adjudication of a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim. See 28 U.S.C. § 2244(d)(2). Here, Mr. Walters filed the first of two Applications for Post-Conviction Relief in the Stephens County District Court on January 10, 2018-with one day remaining in the limitations period. See supra. When the OCCA affirmed the district court's denial of post-conviction relief on July 10, 2018, Petitioner had one more day to file a habeas petition, but he did not. Instead, Petitioner filed his second Application for Post-Conviction Relief on May 3, 2021, but he is not entitled to any period of tolling for that pleading, because it was filed after the AEDPA limitations period had already expired on July 11, 2018. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 Fed.Appx. 727, 729 (10th Cir. 2006) (“[A] petition for post-conviction relief filed in state court after the limitations period has expired no longer serves to toll it.”). Accordingly, unless another exception applies, the Court should conclude that the Petition is not rendered timely through application of 28 U.S.C. § 2244(d)(2).
VI. EQUITABLE TOLLING
The AEDPA limitations period may be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an extraordinary circumstance stood in the petitioner's way and prevented timely filing. See Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances are extraordinary, equitable tolling is only available when the petitioner has been diligent in the pursuit of his habeas claims. See Holland, 631 U.S. at 653. Under this standard, the petitioner bears a “'strong burden to show specific facts.'” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted). Here, Mr. Walters makes no argument that he is subject to equitable tolling. See ECF No. 1:13-14. Thus, the Court should conclude that equitable tolling does not apply to render the Petition timely.
VII. A NEW CONSTITUTIONAL RIGHT-28 U.S.C. § 2244(d)(1)(C)
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.” In Ground One, Mr. Walters alleges that because his crimes occurred in “Indian Country” and he is a member of the Comanche tribe, the state court lacked jurisdiction to prosecute him pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). See ECF No. 1:5. But because McGirt did not recognize a new constitutional right, the provision does not apply.
In McGirt, the United States Supreme Court held that Oklahoma lacked jurisdiction to prosecute the criminal defendant in that case because the defendant was Native American and he committed his crime within the boundaries of the Muscogee Creek Nation Reservation, a reservation that McGirt determined was "Indian country” for purposes of the Major Crimes Act, because Congress never disestablished the reservation. McGirt, 140 S.Ct. at 2459-60, 2474. In the habeas petition, Mr. Walters does not directly cite McGirt, but instead argues that his crime occurred in "Indian Country,” rendering exclusive jurisdiction in federal court. See ECF No. 1:5. It is clear from his position that his argument is inherently based on the holding of McGirt. See ECF No. 1.
McGirt revolved around a longstanding rule that "[s]tate courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.' ” McGirt, 140 S.Ct. at 2459 (citing Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993)). This is so because the Major Crimes Act "provides that, within 'the Indian country,' ‘[a]ny Indian who commits' certain enumerated offenses ‘against the person or property of another Indian or any other person' ‘shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.' ” Id. (quoting 18 U.S.C. § 1153(a)). "Indian Country” includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” 18 U.S.C. § 1151(a). Thus, the relevant question for the Supreme Court was "whether the land . . . treaties promised [the Creek Nation] remain[ed] an Indian reservation for purposes of federal criminal law.” McGrt, 140 S.Ct. at 2459.
To answer that question, the Court examined various treaties between the United States government and the Muscogee (Creek) Nation and statutes governing the Muscogee (Creek) Nation and its territory. See id. at 2460-68. Indeed, the Court only looked to Acts of Congress to answer that question because the Court previously held that" ‘only Congress can divest a reservation of its land and diminish its boundaries.' ” Id. at 2462 (quoting Solem v. Bartlett, 465 U.S. 463, 470 (1984)). The Court determined that the Muscogee (Creek) Nation's reservation continued to exist despite federal allotment policy in the early twentieth century because the "Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.” Id. at 2464 (citing Mattz v. Arnett, 412 U.S. 481, 497 (1973); Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356-58, (1962); Nebraska v. Parker, 577 U.S. 481, 489 (2016)). The Court determined that while the federal government engaged in other policy decisions negatively impacting the sovereignty of the Muscogee (Creek) Nation, "there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.” Id. at 2468.
Although Mr. Walters suggests otherwise, McGirt 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. Id. at 2459.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, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, No. 18-CV-477-CVE-JFJ, 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.'”); Sanders v. Pettigrew, No. CIV-20-350-RAW-KEW, 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”); accord with Berry v. Braggs, No. 19-CV-706-GKF-FHM, 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 Court should find that § 2244(d)(1)(C) does not apply in this case. See Donahue v. Harding, No. CIV-21-183, 2021 WL 4711680, at *1 (W.D. Okla. Sept. 8, 2021) (concluding that in a McGirt challenge, § 2244(d)(1)(C) would not apply to extend conviction finality date because McGirt did not recognize a new constitutional right).
(ECF No. 1:13).
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.
Relatedly, the Tenth Circuit has addressed McGirt in a different context and expressed doubt that the decision presented a new rule of constitutional law. See In re Morgan, No. 20-6123 (10th Cir. Sept. 18, 2020) (order denying authorization to file a second or successive § 2254 habeas petition). The Tenth Circuit went on to conclude that “even if McGirt did present a new rule of constitutional law,” “the Supreme Court has not held that McGirt is retroactive,” and "the only way the Supreme Court could make a rule retroactively applicable is through a holding to that effect.” Id. (alterations and internal quotation marks omitted) (citing 28 U.S.C. § 2244(b)(2)(A)). Jones, 2021 WL 3854755, at *3, n.1.
VIII. ACTUAL INNOCENCE/28 U.S.C. § 2244(d)(1)(D)
For Grounds Two and Three, Petitioner alleges that the bases for these claims “did not come to light until after [his] conviction.” (ECF No. 1:13-14). The undersigned liberally construes this argument to assert timeliness under 28 U.S.C. § 2244(d)(1)(D) and the “actual innocence” exception. Section 2244(d)(1)(D) starts the one-year limitations period 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). Likewise, “[A] credible showing of actual innocence” based on newly discovered evidence “may allow a prisoner to pursue his constitutional claims” as to his conviction, under an exception to 28 U.S.C. § 2244(d)(1)-established for the purpose of preventing a miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013) (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)).
For Ground Two, Mr. Walters simply states the factual predicate of the claim “c[a]me to light” “years” after his conviction. (ECF No. 1:7). Petitioner contends that prior to trial, his trial judge, Ken Graham, “suffered a horrendous family loss” in the form of a robbery and assault on his father-in-law. (ECF No. 1:7). According to Petitioner, he did not discover this information until “years” after his conviction and Judge Graham was biased against Mr. Walters in his trial, because of the similarity in nature of the crimes perpetrated on his family member. (ECF No. 1:7).
Section § 2244(d)(1)(D) allows the statute of limitations 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.” But the limitation period under § 2244(d)(1)(D) begins on the date that a reasonably diligent petitioner could have discovered the factual basis of his or her claims, not the date that a particular petitioner first discovers the legal basis of his or her claims. Stiltner v. Nunn, Case No. 21-CV-0374-GKF-CDL, 2022 WL 951997, at *5 (N.D. Okla. Mar. 29, 2022). Through due diligence, Mr. Walters could have discovered the factual basis for his claim (that Judge Graham had suffered a personal family trauma involving crimes similar to those alleged against Mr. Walters) well before trial. “If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.” Worthen v. Kaiser, 952 F.2d 1266, 1269 (10th Cir. 1992) (emphasis added). Under this theory, the Court should reject any argument that Section 2244(d)(1)(D) or the “actual innocence” exception applies to salvage the filing of the habeas Petition.
For Ground Three, Petitioner alleges that “after [his] conviction,” he discovered Brady evidence in the form of the State refusing to prosecute “the correct [guilty party]”- the victim's nephew. (ECF No. 1:8). But Mr. Walters does not state when, exactly, this “evidence” came to light, and he does not further elaborate on his theory other than to state his belief that the nephew had motive to commit the crimes. (ECF No. 1:8-9). The Court should find these allegations conclusory and insufficient to invoke Section 2244(d)(1)(D) or the actual innocence exception. See Dilley v. Stevenson, No. 22-cv-935-DHU-JHR, 2024 WL 218413, at *3 (D.N.M. Jan. 19, 2024) (“[petitioner's] conclusory recitation of the language of § 2244(d)(1)(D) is ineffective to overcome the untimeliness of the Petition.”); Campbell v. Milyard, No. 09-cv-00375-BNB, 2009 WL 1916273, at *4 (D. Colo. June 30, 2009) (rejecting habeas petitioner's conclusory allegations regarding exculpatory evidence as a basis for invoking Section 2244(d)(1)(D)); Tafoya v. Janecka, 242 Fed.Appx. 509, 512, 2007 WL 2039119, at *2 (10th Cir. 2007) (“conclusory allegations are insufficient to support a claim of actual innocence.”)
IX. SUMMARY
Under § 2244(d)(1)(A), Petitioner's conviction became final on January 11, 2017 and the one-year habeas limitations expired on January 11, 2018. With statutory tolling under Section § 2244(d)(2), the habeas limitations period would expire July 11, 2018. See supra. Sections 2244(d)(1)(C) & (D) would not apply, see supra, and Mr. Walters is not entitled to any period of tolling under the “actual innocence” exception. Because Petitioner waited until February 16, 2024 to file his habeas Petition, the Court should dismiss it as untimely.
X. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court DISMISS the Petition as untimely. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 15, 2024, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
XI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.