Opinion
CIV-22-845-JD
10-24-2022
DEXTER TYRONE MCDADE, Petitioner, v. LUKE PETTIGREW, Respondent.
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 No. 1). United States District Judge Jodi W. Dishman 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. PROCEDURAL BACKGROUND
On August 3, 1988, in Oklahoma County District Court Case No. CF-1987-6621, Petitioner pled guilty to first-degree murder. See ECF No. 1:1. Mr. McDade did not seek withdraw his plea or otherwise appeal the conviction. On November 13, 2018, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court. See State Court Docket Sheet, State of Oklahoma v. McDade, Case No. CF-1988-6621 (Okla. Co. Dist. Ct. Nov. 13, 2018). On April 27, 2020, the Oklahoma County District Court denied relief. See State Court Docket Sheet, State of Oklahoma v. McDade, Case No. CF-1988-6621 (Okla. Co. Dist. Ct. Apr. 27, 2020). In December 2020, Petitioner filed several briefs in an attempt to file a second Application for Post-Conviction Relief. See ECF No. 15-17-21, McDade v. Pettigrew, Case No. CIV-2020-1006 (W.D. Okla. Jan. 27, 2021). Ultimately, however, the Oklahoma County District Court dismissed the attempt at a second post-conviction application, as the pleadings had not been verified. See ECF No. 15-23, McDade v. Pettigrew, Case No. CIV-2020-1006 (W.D. Okla. Jan. 27, 2021).
Mr. McDade checked the “yes” box on the form petition regarding an appeal of his conviction. See ECF No. 1:2. But thereafter, Petitioner cites the post-conviction appeal, which is distinct from a direct appeal of the conviction. A review of the state court docket sheets reveal that Mr. McDade did not seek to withdraw his guilty plea-the first step in filing a direct appeal. See State Court Docket Sheet, State of Oklahoma v. McDade, Case No. CF-1988-6621 (Okla. Co. Dist. Ct.); see also 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); Clayton v. Jones, 700 F.3d 435, 441 (10th Cir. 2012) (“In Oklahoma, if a defendant's conviction is based on a guilty plea, he may pursue an appeal to the OCCA only by a petition for a writ of certiorari. . . First, however, the defendant must file an application in the trial court to withdraw his plea within ten days of the judgment and sentence, with a request for an evidentiary hearing.”).
On January 13, 2021, Petitioner filed a third Application for Post-Conviction Relief and Brief in Support in the Oklahoma County District Court. (ECF No. 1-1:1020). In the application, Petitioner argued that the Oklahoma County District Court lacked jurisdiction over his case. See id. On February 23, 2021, the Oklahoma County District Court denied the application. See ECF No. 1-1:29-31. On March 9, 2021, Mr. McDade appealed the denial in the Oklahoma Court of Criminal Appeals (OCCA). (ECF No. 1-1:3-4). On October 1, 2021, the OCCA affirmed the district court's denial of post-conviction relief. (ECF No. 1-1:1-2). On September 22, 2022, Mr. McDade filed a habeas petition in this Court.
Previously, Mr. McDade field a habeas petition in this Court alleging a lack of jurisdiction in the trial court. SeeECF No. 1, McDade v Pettigrew, Case No. CIV-2020-1006 (W.D. Okla. Oct. 5, 2020). The Court dismissed the Petition under Younger v. Harris, 401 U.S. 37 (1971), because the appeal of his third Application fort Post-Conviction relief was pending. See ECF Nos. 17, 18, & 19, McDade v. Pettigrew, Case No. CIV-2020-1006 (W.D. Okla. Apr. 13, 2021 & May 28, 2021).
II. 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).
III. DISMISSAL OF THE PETITION
In his two grounds for relief, Mr. McDade alleges: (1) a lack of jurisdiction in the trial court pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) and (2) ineffective assistance of trial counsel for failing to explain to Mr. McDade the alleged lack of jurisdiction. (ECF No. 1). The Court should dismiss the Petition, with prejudice, as untimely.
A. 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). Petitioner has suggested facts which would implicate subsection (C), impliedly arguing that he was prevented from pursuing a McGirt challenge until the issue had been decided. See ECF No. 1:5 (stating that the case “rest[ed] until Jurisdiction became promenent [sic] within the legal challenges.”). The Court should conclude: (1) that the Petition is untimely based on the date the conviction became final under § 2244(d)(1)(A) and (2) § 2244(d)(1)(C) does not apply to extend the conviction's finality date.
1. The Petition is Untimely Under 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). If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing. See Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015). Because Mr. McDade did not appeal from his plea, his conviction became final ten days following sentencing, on August 15, 1988. See supra. As a result, Mr. McDade's one-year habeas statute of limitations expired on August 15, 1989. Petitioner filed the habeas petition on September 22, 2022, over thirty-three years after the limitations period had expired. Thus, under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
Because the tenth day following sentencing fell on Saturday, August 13, 1988, Petitioner had until the following Monday, August 15, 1988, to file a motion to withdraw his plea. See 12 O.S. § 2006.
See ECF No. 1.
2. 28 U.S.C. § 2244(d)(1)(C) is not Applicable
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.” But because McGirt did not recognize a new constitutional right, the provision does not apply.
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.” McGirt, 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. McDade 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, the Tenth Circuit has stated: "McGirt announced no new constitutional right.” Pacheco v. El Habti, 48 F.4th 1179 (10th Cir. 2022). See Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (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 statecourt jurisdiction.”); 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 Pacheco v. El Habti, supra, (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).
See ECF No. 1:5.
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.
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)); see also Jones, 2021 WL 3854755, at *3, n.1. Relatedly, the Supreme Court recently denied Petitions for Writ of Certiorari in three cases in which the petitioners were challenging state court rulings that McGirt was not retroactive. State ex rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021), cert. denied, Parish v. Okla., ___ U.S. ___, 142 S.Ct. 757, ___ L.Ed.2d ___ (2022); Davis v. Okla., ___ U.S. ___, 142 S.Ct. 793, ___ L.Ed.2d ___ (2022); Compelleebee v. Okla., ___ U.S. ___, 142 S.Ct. 792 ___ L.Ed.2d ___ (2022).
B. 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). As discussed, Mr. McDade filed multiple post-conviction applications, the earliest of which was November 13, 2018. See supra. But because the one-year limitations period had already expired at the time of the earliest filing, the Applications for Post-Conviction Relief did not provide tolling under § 2244(d)(2). See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) ('“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) ('“[Petitioner's] state application [for postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”). Thus, the Court should conclude that the Petition is not rendered timely through application of 28 U.S.C. § 2244(d)(2).
C. 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. McDade makes no argument that he is subject to equitable tolling. See ECF No. 1. Thus, the Court should conclude that equitable tolling does not apply to render the Petition timely.
D. Actual Innocence Exception
“[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). Successful actual-innocence claims are rare due to the demanding evidentiary requirements for such claims. See id. at 383, 392, 401; House v. Bell, 547 U.S. 518, 538 (2006). "[Prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.' ” House v. Bel 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accordMcQuiggin v. Perkins, 569 U.S. at 399 (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims must be based on “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Here, Mr. McDade has made no allegation that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to the same. As discussed, Petitioner's reliance on “new” law-i.e.-McGirt-is not considered a “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See supra. As a result, the Court should conclude that the “actual innocence” exception does not apply.
E. Summary
Under § 2244(d)(1)(A), Petitioner's conviction became final on August 15, 1988, and the one-year habeas limitations expired on August 15, 1989. Section 2244(d)(1)(C) would not apply and Mr. McDade is not entitled to any statutory or equitable tolling because he has failed to demonstrate, with specificity, why he was prevented from filing a timely petition. Finally, Petitioner is not entitled to any period of tolling under the “actual innocence” exception. Because Petitioner waited until September 22, 2022 to file his Petition, the Court should dismiss it as untimely.
IV. 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 November 10, 2022, 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).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.