Opinion
21-7062
12-13-2021
In re: RICKEY WHITE, Movant.
(D.C. No. 6:21-CV-00281-RAW-KEW) (E.D. Okla.)
Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
ORDER
Rickey White, an Oklahoma prisoner proceeding pro se, seeks authorization to file a second or successive habeas application under 28 U.S.C. § 2254. Because he has not met the requisite conditions for authorization under 28 U.S.C. § 2244(b), we deny authorization.
In 1983, White was convicted in Oklahoma state court of first-degree murder and sentenced to life imprisonment. The Oklahoma Court of Criminal Appeals (OCCA) affirmed. The district court denied White's first § 2254 motion as time-barred, and we denied a certificate of appealability.
White's second or successive habeas application cannot proceed in the district court without first being authorized by this court. See § 2244(b)(3). We may authorize a claim only if the prisoner has not raised it in a previous § 2254 application. See id. § 2244(b)(1). We may not authorize a new claim unless it satisfies one or both of the requirements specified in § 2244(b)(2). White must make a prima facie showing that he can satisfy these gate keeping requirements. See § 2244(b)(3)(C); Case v. Hatch, 731 F.3d 1015, 1028-29 (10th Cir. 2013).
White seeks authorization to assert a claim that the Oklahoma state court lacked jurisdiction to prosecute him because the charged offense occurred in Indian Country. He bases this claim on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). White contends that this claim satisfies the requirements for authorization because it "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," § 2244(b)(2)(A).
White also argues this claim is based on newly discovered evidence, but the Supreme Court's decision in McGirt is not a newly discovered "factual predicate" underlying his proposed claim, as required by § 2244(b)(2)(B)(i), and he points to no newly discovered facts establishing his innocence, see id. § 2244(b)(2)(B)(ii).
In McGirt, the Supreme Court held 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.'" 140 S.Ct. at 2459 (quoting 18 U.S.C. § 1153(a)); see id. at 2459-60. In light of this holding, the Court reversed a decision by the OCCA upholding the state-court conviction of an enrolled member of an Indian tribe for crimes committed on the Creek Reservation. See id. at 2459-60, 2482.
In his motion for authorization, White does not indicate whether he is an "Indian" for purposes of federal jurisdiction. But we take judicial notice of his district court brief in support of a recent § 2254 habeas application he filed, in which he asserted the same claim and stated that "he is a Choctaw Nation Black Indian." Brief of Petitioner at 2, White v. Farris, No. 6:21-cv-00281-RAW-KEW (E.D. Okla. Sept. 16, 2021). The district court dismissed that application for lack of jurisdiction, concluding it was second or successive and not authorized by this court.
The authorization standard in § 2244(b)(2)(A) requires the movant to show both the existence of a "new rule of constitutional law" and that the new rule has been "made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2244(b)(2)(A) (emphasis added). White has not made the required showing. First, McGirt did not announce a new rule of constitutional law; instead, it interpreted various statutes, treaties, and agreements and concluded that because Congress never disestablished the Creek Reservation it remains Indian Country today. See 140 S.Ct. at 2459, 2462-71, 2474-78, 2482. Nor does White show that the Supreme Court has made McGirt retroactive to cases on collateral review. See In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013) ("The Supreme Court has concluded that 'made' means 'held' and thus, the requirement [in § 2244(b)(2)(A)] is satisfied only if the Court has held that the new rule is retroactively applicable to cases on collateral review." (brackets and internal quotation marks omitted)).
Accordingly, the motion for authorization is denied. 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).