Opinion
CIV-22-451-F
07-26-2022
ROBERT D. DUNN, Petitioner, v. CARRIE BRIDGES, Warden,[1] Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner Robert D. Dunn, 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 Stephen P. Friot referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. 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 has paid the $5.00 filing fee required for this action. See 28 U.S.C. § 1914(a). His motion to proceed in forma pauperis, Doc. 6, is therefore moot. Because the undersigned finds Petitioner's motion was untimely filed, the Court also finds moot his motion outlining additional arguments, Doc. 7.
I. Petitioner's state-court procedural background and federal habeas claims.
Petitioner pled guilty to assault. Doc. 1; see also State v. Dunn, No. CRF-1991-27, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=harper&number= CRF-1991-00027&cmid=3397 (last visited July 14, 2022). The state trial court sentenced Petitioner to life in prison in 1992. Doc. 1. Petitioner did not appeal his conviction and sentence, and he did not apply for post-conviction relief in state court. Doc. 1, at 2-3.
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 May 24, 2022. Doc. 1, at 17. Petitioner claims Oklahoma lacked jurisdiction to prosecute him, as he “ha[s] some Indian Blood” and his “alleged crime was [covered by] 18 U.S.C. § 1153[,] Major Crimes Act” and occurred within Indian country. Id. at 5; see also 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 argues that because the state court did not establish its jurisdiction over “the Indian defendant or victim,” the court engaged in racial profiling, violating Petitioner's Fourteenth Amendment equal protection rights and his Sixth Amendment right to a fair trial. Doc. 1, at 7. He also claims he received ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668 (1984), because his “defense attorney did not raise” this jurisdictional issue. Doc. 1, at 7. Finally, Petitioner suggests that by declining to entertain McGirt claims raised in untimely post-conviction or habeas petitions, state and federal courts are violating his Sixth Amendment right to a speedy trial and the “Speedy Trial Act, 18 U.S.C. §§ 3161-74.” Id. at 8, 12-16.
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 Gentry v. Parker, 2012 WL 6681836, at *3 (N.D. Okla. Dec. 21, 2012) (explaining that the petitioner's records, “including the prison's outgoing legal mail logs,” demonstrated “that Petitioner's facility, the James Crabtree Correctional Center (JCCC), maintains a legal mail system”).
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 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 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.
Unless a petitioner shows otherwise, the limitations period generally 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). “[A] judgment becomes final when the defendant has exhausted all direct appeals in state court and the time to petition for a writ of certiorari from the United States Supreme Court has expired ....” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012). 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 attests he was sentenced in 1992. Doc. 1, at 1. Because Petitioner has not provided the Court with a specific sentencing date and because the Oklahoma State Court Network (OSCN) docket sheet also does not contain more specific information, the Court will give Petitioner the benefit of that entire year and consider the date of his judgment and sentence to be December 31, 1992. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (explaining that the Court holds “allegations of the pro se complaint” “to less stringent standards than formal pleadings drafted by lawyers”); Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). Therefore, for purposes of this analysis, Petitioner's conviction was final on January 10, 1993. 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 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 January 11, 1993, and expired one year later on January 11, 1994. Harris, 642 F.3d at 906 n.6 (10th Cir. 2011). Petitioner did not file the instant habeas petition until almost thirty years later.
Although 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), Petitioner filed no such post-conviction motion and is not entitled to statutory tolling under § 2244(d)(2). See Doc. 1; see also Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000).
Petitioner's habeas petition was therefore untimely filed under § 2244 of the AEDPA.
Petitioner suggests he has “surmounted” the AEDPA limitation period because Oklahoma lacked jurisdiction to prosecute him under McGirt. See Doc. 1, at 11. Petitioner misses the mark. 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, absent statutory tolling that is not available here, see 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.”).
IV. Petitioner's exhaustion arguments are not relevant to the Court's timeliness determination.
Petitioner alleges that “because Oklahoma lacked jurisdiction” to prosecute him under McGirt, the state lacks an “available corrective process” for his claims. See Doc. 1, at 5-7. The Court construes this as an argument that Petitioner could not have exhausted his claims in state court before filing the present habeas corpus action, as required by 28 U.S.C. § 2254(c), because the state lacks jurisdiction over his case.
A state prisoner must exhaust all available state-court remedies before seeking a federal writ of habeas corpus unless exhaustion would be futile- that is, unless “there is an absence of available State corrective process” or the state-court process would be ineffective to protect the prisoner's rights, under the circumstances. See 28 U.S.C. § 2254(b)(1); see also Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011). “To exhaust a claim, a state prisoner must pursue it through ‘one complete round of the State's established appellate review process,' giving the state courts a ‘full and fair opportunity' to correct alleged constitutional errors.” Selsor, 644 F.3d at 1026 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
As an initial matter, the Court rejects Petitioner's contention that Oklahoma lacks a corrective process adequate to address his McGirt claims. “Oklahoma's post-conviction procedures provide a path for Petitioner to raise a jurisdictional challenge.” Largent v. Nunn, No. CIV-20-683-J, 2020 WL 6734673, at *3 (W.D. Okla. Oct. 20, 2020) (citing Okla. Stat. tit. 22, § 1080(b)), adopted, 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020). And “[t]he § 2254 exhaustion requirement contains no exception for jurisdictional claims,” Phillips v. Crow, No. CIV-22-99-R, 2022 WL 851774, at *2 (W.D. Okla. Feb. 18, 2022), adopted, 2022 WL 844202 (W.D. Okla. Mar. 21, 2022), including those based on the state's lack of jurisdiction over certain crimes committed in Indian country, e.g. Morgan v. Bureau of Indian Affs., No. CIV-18-290-G, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (explaining “this and other courts have dismissed habeas petitions asserting unexhausted [] claims” based on Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), in which the Tenth Circuit held Oklahoma lacked jurisdiction over the defendant, an Indian, because the crime occurred in Indian country) (collecting cases).
But even if Petitioner had properly exhausted his claims, the Court still could not grant habeas relief because, as explained supra § III., Petitioner filed his petition out of time.
V. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of this habeas petition without prejudice to refiling.
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.