Opinion
CIV-22-395-JD
06-28-2022
HASKELL ARMOND WILLIAMSON, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Haskell Armond Williamson (“Petitioner”), a state prisoner appearing pro se,has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1).United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DISMISSED with prejudice.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions 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 § 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). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 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).
II. Procedural History
A. Petitioner's Tulsa County Sentence
Petitioner is a state inmate currently incarcerated at the James Crabtree Correctional Center in Helena, Oklahoma. (Doc. 1, at 1); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 462859). On June 11, 2012, Petitioner entered pleas of guilty to one count of kidnapping (Count One); two counts of rape in the first degree by instrumentation (Counts Two and Three); one count of forcible oral sodomy (Count Four); and one count of robbery in the second degree (Count Five). Tulsa County District Court, Case No. CF-2011-2125.(See also Doc. 1, at 1). The court sentenced Petitioner to 20 years of imprisonment on each count, each sentence running concurrently. (Id.) Petitioner neither sought to withdraw his guilty plea nor appealed his judgment or sentence. (Id. at 1-2).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2011-2125 (Docket Sheet) (last visited June 28, 2022). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. See 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).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On August 3, 2020, Petitioner filed an Application for Post-Conviction Relief before the Tulsa County District Court, arguing that the “trial court lacked jurisdiction due to Petitioner's Indian status and the crime occurring on a reservation.” (Doc. 1, at 3); see also Tulsa County District Court, Case No. CF-2011-2125 (see footnote 3). The state district court denied Petitioner's Application on December 14, 2021. (Id.) Petitioner appealed, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the denial of Petitioner's Application on April 1, 2022. OCCA, Case No. PC-2022-147.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC2022-147 (Docket Sheet) (last visited June 28, 2022).
C. The Petition
On May 10, 2022,Petitioner filed the instant action, asserting three grounds for relief. (Doc. 1, at 5-9). In Ground One, Petitioner alleges that “[t]he trial court lacked jurisdiction because Petitioner is an Indian and the alleged crime occurred in Indian country.” (Id. at 5). Petitioner complains in Ground Two that “[t]he trial court lacked jurisdiction because treaty provisions between the U.S. and Choctaw Nation excludes state criminal jurisdiction.” (Id. at 6-7). In Ground Three, Petitioner challenges the constitutionality of the OCCA's holding in State ex rel. Matloff v. Wallace, 497 P.3d 686, cert. denied sub nom. Parish v. Oklahoma, 142 S.Ct. 757 (2022). (Id. at 8).
Petitioner certified that he placed his habeas petition in the mail to the court on May 10, 2022 (Doc. 1, at 14), which is the date the court deems it filed. See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
Petitioner claims he exhausted Grounds One, Two, and Three in state court through his Application for Post-Conviction Relief. (Id. at 6-9). Petitioner asserts that he did not address these grounds on direct appeal because the “issue did not ripen until McGirt v. Oklahoma, 140 S.Ct 2452 (2020)” on Grounds One and Two and, additionally, that “counsel failed to raise [the] issue” on Ground Two. (Id. at 5, 7). Likewise, Petitioner claims that he did not address Ground Three on direct appeal because the “issue did not ripen until Matloff was decided on August 12, 2021.” (Id. at 8).
III. Analysis
A. Petitioner Did Not Timely File His Petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.Id. AEDPA 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. at § 2244(d)(2).
1. The Petition is Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[,] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Because Petitioner did not file a direct appeal, his conviction became final ten days after the trial court entered final judgment, so, on June 21, 2012. OCCA Rule 2.1(B). See also Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“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.”). The one-year statute of limitations began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until June 22, 2013, to file his habeas petition, absent any tolling event. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Because Petitioner did not attempt to file any form of state post-conviction relief until August 3, 2020 - after the limitations period had already expired - those efforts did not result in 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, Petitioner's habeas action is untimely under § 2244(d)(1)(A).
2. Section 2244(d)(1)(C) Is Not Applicable Because McGirt Did Not Recognize a New Constitutional Right.
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.” The McGirt decision 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,” McGirt, 140 S.Ct. at 2459, a non-constitutional issue.
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.
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 state-court jurisdiction.” Jones v. Pettigrew, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, 2021 WL 3074171, at *5 (N.D. Okla. July 20, 2021) (“But [28 U.S.C. § 2244(d)(1)(C)] does not apply because the Supreme Court did not recognize any constitutional rights in McGirt.”)), see further Jones v. Pettigrew, 2022 WL 176139, at *1 (10th Cir. Jan. 20, 2022) (denying certificate of appealability and holding that “upon review of the district court's thorough and well-reasoned order, we conclude that reasonable jurists wouldn't debate the correctness of the district court's decision that Jones's petition was untimely.”); Shields v. Crow, 2022 WL 291723, at *3 (W.D. Okla. Jan. 13, 2022), report and recommendation adopted by 2022 WL 291622 (W.D. Okla. Jan. 31, 2022); Sanders v. Pettigrew, 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”); citing accord with Berry v. Braggs, 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, § 2244(d)(1)(C) does not apply in this case, and Petitioner's action is untimely.
In Ground Three, Petitioner challenges the OCCA's “holding [that] McGirt may not be applied on collateral review” as “unconstitutional.” (Doc. 1, at 8) (citing State ex rel. Matloff v. Wallace, 497 P.3d 686, cert. denied sub nom. Parish v. Oklahoma, 142 S.Ct.
B. Petitioner Is Not Entitled to Equitable Tolling or The Actual Innocence Exception.
Petitioner does not allege and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding a habeas petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing”) (citation omitted). Nor does Petitioner argue he is actually innocent of the crimes at issue. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding that to present a credible claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”).
IV. Recommended Ruling and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
The court advises Petitioner of his right to object to this Report and Recommendation by July 19, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court further advises Petitioner that failure to make timely objection to this report and recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.