Opinion
CIV-21-237-G
04-28-2021
DAVID DEAN WOODS, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL MAGISTRATE JUDGE.
Petitioner, a state prisoner appearing pro se and in forma pauperis, filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The undersigned has undertaken a review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed.
I. Background
On January 18, 2018, Petitioner entered pleas of nolo contendere and was convicted of Trafficking in Illegal Drugs, Harboring a Fugitive from Justice, Possession of a Firearm After Former Conviction of a Felony, and Possession of a Controlled Dangerous Substance. Doc. No. 1 at 1; Oklahoma State Courts Network, State v. Woods, No. CF-2017-7, District Court of Johnston County. The state court sentenced Petitioner to 20 years, 5 years, 10 years, and 10 years, respectively, with each sentence to run concurrently. Id.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=johnstonνmber=CF-2017-7
On August 31, 2020, Petitioner filed an application for post-conviction relief in the state district court. Doc. No. 1 at 3. Relying on the Supreme Court's recent decision in McGirt v. State of Oklahoma, ___ U.S. ___, 140 S.Ct. 2452 (2020), Petitioner argued the State of Oklahoma did not have jurisdiction over his criminal case because the underlying crimes were committed on Indian land and therefore, lies within the exclusive jurisdiction of the federal government. Id.; Doc. No. 1-1. The state district court denied Petitioner's application on September 14, 2020, explaining that Petitioner had “failed to prove or even allege that he is a member of any recognized Indian tribe. His reliance on McGirt is misplaced.” Doc. No. 1-1.
Petitioner appealed this denial to the Oklahoma Court of Criminal Appeals (“OCCA”) on November 9, 2020. Doc. No. 1 at 6; Oklahoma State Courts Network, Woods v. State, No. PC-2020-814, Oklahoma Court of Criminal Appeals. On January 25, 2021, the OCCA affirmed the lower court's decision, noting that “Petitioner's application filed in the District Court states that he is not a member of any Indian tribe.” Doc. No. 1-2 at 2.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=PC-2020-814
Petitioner filed the instant action on March 19, 2021. Doc. No. 1. As his sole basis for habeas relief, Petitioner again asserts the state court lacked jurisdiction over his criminal proceedings because the underlying crimes occurred “within the boundaries of the Chickasaw Nation where the Chickasaw Nation has exclusive jurisdiction.” Id. at 5. Petitioner requests this Court vacate his underlying convictions and order the dismissal of his criminal case. Id. at 14.
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing § 2254 Cases. “[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). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive 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 . . . .” Id. (quotations omitted); Smith v. Dorsey, No. 93-2229, 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).
III. Analysis
Petitioner alleges the state court lacked jurisdiction over his criminal proceedings, essentially rendering the convictions void. According to Petitioner, his crime was committed “within the boundaries of the Chickasaw Nation, ” and falls under the exclusive jurisdiction of a federal court. Liberally construing the Petition, Petitioner argues he is entitled to relief pursuant to the United States Supreme Court's recent holding in McGirt.
In McGirt, the petitioner, an enrolled member of the Seminole Nation, was convicted in Oklahoma state court of three serious sexual offenses which occurred on the Creek Reservation. McGirt, 140 S.Ct. at 2459. Relying on the Major Crimes Act (“MCA”), 18 U.S.C. § 1153, the petitioner argued the State lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. Id. The petitioner argued that he was therefore entitled to a new trial in federal court. Id.
The key question before the Supreme Court was whether the Creek Reservation qualified as “Indian country” for purposes of the MCA. Id. Following a lengthy opinion outlining the history and the evolution of the land given to the Creek Nation as a reservation via a treaty with the federal government in 1833, the Supreme Court answered this question affirmatively. Id. at 2460-82.
In a recent decision, the OCCA explained McGirt's holding as dictating that “the federal and tribal governments, not the State of Oklahoma, have jurisdiction to prosecute crimes committed by or against Indians” on Indian land. Bosse v. State, ___ P.3d ___, 2021 WL 958372, at *1 (Okla. Crim. App. March 11, 2021) (citing 18 U.S.C. §§ 1152, 1153). See, cf., United States v. Houser, 130 F.3d 867, 872 (9th Cir. 1997) (“Section 1152 is commonly employed when a non-Indian commits a crime against an Indian.”). Thus, the questions presented here are: (1) were Petitioner's crimes committed on Indian land and (2) were the crimes committed by or against Indians. Id. It is unnecessary to address the first question because the record clearly establishes the second question is answered in the negative.
The state court record indicates Petitioner has acknowledged that he is not a member of an Indian tribe. Doc. No. 1-2 at 2. Additionally, Petitioner's criminal acts were victimless and therefore, not committed against an Indian. U.S. v. Langford, 641 F.3d 1195, 1196 (10th Cir. 2011) (vacating conviction for being a spectator at a cockfight based on lack of federal jurisdiction, holding, “We conclude that federal courts do not have authority over victimless crimes committed by non-Indians in Indian country.”); see also Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984) (noting that within Indian country, state jurisdiction is limited to crimes by non-Indians against non-Indians and victimless crimes by non-Indians); Riggle v. State, 151 N.E.3d 766, 771-72 (Ind.Ct.App. 2020) (analyzing 18 U.S.C. §§ 1152, 1153 and upholding the state court's jurisdiction to try the defendant for the crime of unlawful possession of a syringe, noting, “[C]aselaw dictates that state law applies to a criminal offense that is committed by a non-Indian on tribal land and either is committed against a non-Indian victim or is victimless.”); State v. Thompson, 929 N.W.2d 21, 31-32 (Minn.Ct.App. 2019) (“Because there is no particular victim of [a non-Indian defendant's] DWI offense [committed on Indian land], the state has jurisdiction to prosecute [the defendant] in this case. . . . ‘[S]tate police or county sheriffs and similar state personnel have authority to arrest non-Indians committing crimes against non-Indians or victimless crimes.'” (quoting William C. Canby, Jr., American Indian Law 203-04 (6th ed. 2015)); People v. Collins, 826 N.W.2d 175, 177 (Mich. Ct. App. 2012) (holding that state court had jurisdiction over non-Indian defendants charged with Delivery of a Controlled Substance and Possession with Intent to Deliver committed on Indian land, stating, “[W]e hold that state courts . . . have jurisdiction relative to a criminal prosecution in which a non-Indian defendant committed a ‘victimless' offense on Indian lands or in Indian country.” (footnote omitted)).
In Collins, the Michigan Court of Appeals noted its hesitancy “to describe any drug offense as a ‘victimless' crime, [but] the terminology is well-suited for purposes of discussing the jurisdictional issue posed to us . . . .” Id. at 177 n.2.
Based on the above analysis, it is clear Oklahoma state courts possessed jurisdiction to try Petitioner on the crimes for which he was ultimately convicted. His reliance on McGirt and/or related statutory law is misplaced. Accordingly, Petitioner's request for habeas relief should be dismissed.
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed based on Petitioner's failure to state a claim for habeas relief. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 18 th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.