Opinion
21-7032
07-12-2021
In re: BRIAN TYRONE SCOTT, Movant.
(D.C. No. 6:08-CV-00287-RAW-KEW) (E.D. Okla.)
Before TYMKOVICH, Chief Judge, PHILLIPS and CARSON, Circuit Judges.
ORDER
Brian Tyrone Scott, a state prisoner proceeding pro se, has filed a motion for authorization to file a second or successive 28 U.S.C. § 2254 habeas petition. For the reasons below, we deny authorization.
Mr. Scott was convicted in Oklahoma state court of first-degree burglary (Count I), forcible sodomy (Count II), assault and battery with a dangerous weapon (Count III), unauthorized use of a motor vehicle (Count IV), assault and battery on a police officer (Count V), malicious injury to property (Count VI), and kidnapping (Count IX). The Oklahoma Court of Criminal Appeals (OCCA) affirmed the judgments and sentences on Counts I, II, V, and VI. It found, however, that the judgment and sentence incorrectly stated the crimes for which Mr. Scott was convicted in Counts III and IV, and so it remanded to the district court with instructions to vacate the judgments and sentences on those counts and enter an Order nunc pro tunc reflecting the correct crimes for the convictions in those counts. The OCCA also dismissed Count IX.
Mr. Scott later filed a § 2254 habeas petition. The district court dismissed the petition as untimely, and this court denied his request for a certificate of appealability.
Mr. Scott now seeks authorization to file a second or successive § 2254 habeas petition. He contends he is entitled to authorization based on a new rule of constitutional law, citing McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). In McGirt, the Supreme Court determined that the territory in Oklahoma reserved for the Creek Nation since the 19th century remains "'Indian country'" for purposes of exclusive federal jurisdiction over certain enumerated offenses committed "within 'the Indian country'" by an "'Indian.'" Id. at 2459 (quoting 18 U.S.C. § 1153(a)). Mr. Scott therefore asserts that the State did not have jurisdiction to try him because his alleged crimes took place within the Muscogee (Creek) Nation reservation.
We may grant authorization if Mr. Scott shows that his "claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). He has not made this showing. McGirt did not announce a new rule of constitutional law; instead, it interpreted various statutes and treaties and concluded that because Congress never disestablished the Creek Reservation it remains Indian Country today. See 140 S.Ct. at 2462-70, 2474-76, 2481-82. Because Mr. Scott cannot meet the standard for authorization in § 2244(b)(2)(A), we deny his motion. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).