Opinion
CIV-22-340-JD
06-23-2022
JIMMY CALDWELL, Petitioner, v. JANET DOWLING, Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.
Petitioner Jimmy Caldwell, proceeding pro se, seeks habeas corpus relief from his state conviction and sentence under 28 U.S.C. § 2254. Doc. 1. United States District Judge Jodi W. Dishman referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Petitioner pleaded no contest to one count of child sexual abuse before Pottawatomie County District Court. State v. Caldwell, No. CF-2003-411, Docket Entry dated July 14, 2004, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&n umber=CF-2003-00411&cmid=15709 (last visited June 8, 2022) (Caldwell). The state district court entered a judgment of conviction on July 14, 2004, and Petitioner was sentenced to fifty years' imprisonment. Doc. 1, at 1. Petitioner did not appeal his conviction and sentence. Id. at 1-2. On September 8, 2020, he applied for post-conviction relief from the Pottawatomie County District Court. Id. at 3. The state district court denied post-conviction relief on November 2, 2020, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed on September 14, 2021. Doc. 1, Atts. 1 (district court order), 2 (OCCA order). He then filed the present motion for habeas corpus relief on March 31, 2022. For the reasons below, the undersigned recommends dismissal of the petition in its entirety.
The undersigned takes judicial notice of the docket report in Petitioner's state-court proceeding. See United States v. Ahidley, 486 F.3d 1184, 1192 n. (10th Cir. 2007) (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”).
Petitioner certified that he placed his petition in the prison mail system on March 31, 2022. Doc. 1, at 15; see also 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 prison mailbox rule to a § 2254 petition); Jones v. Dinwiddie, 2006 WL 3762092, at *2 (N.D. Okla. Dec. 20, 2006) (applying prison mailbox rule to a habeas petition mailed from Petitioner's facility).
I. Discussion.
Petitioner brings two related grounds for relief. He first claims the OCCA unreasonably denied his post-conviction claim that the state lacked subject matter jurisdiction to convict him because he established before the OCCA “that he was Native American, charged with an offense within Indian Country, and charged with an offense that falls under the federal Major Crimes Act, 18 U.S.C. § 1153(A).” Doc. 1, at 5. Petitioner next claims that the OCCA unreasonably denied his jurisdictional claim on the ground that the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), does not apply retroactively to finalized convictions. Id. at 8; see also Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021). He argues the OCCA “was required to . . . refer Petitioner's legal proceedings to tribal or federal court” because McGirt merely explained existing jurisdictional doctrine, under which “Petitioner's conviction was never finalized because the State of Oklahoma never had subject matter jurisdiction” over “Natives committing major crimes in Indian Country.” Id. at 10-11. The undersigned will not reach the merits of these claims because, as explained below, Petitioner's habeas petition was filed out of time and Petitioner is not entitled to equitable tolling.
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
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) (holding that “§ 2244(d) is subject to equitable tolling in appropriate cases”).
B. Petitioner's deadline to file for habeas relief.
Petitioner argues he is “within his one-year time-limit.” Doc. 1, at 14. Petitioner styles his claims as challenges of the OCCA's September 14, 2021 order affirming the state trial court's denial of post-conviction relief. However, as explained more thoroughly below, Petitioner's AEDPA limitations period started when his conviction was finalized, see 28 U.S.C. § 2244(d)(1), not the date that post-conviction relief was denied. Petitioner's deadline to file his habeas petition was July 25, 2005.
1. Conviction finalized under 28 U.S.C. § 2244(d)(1)(A).
Unless a petitioner shows otherwise, the limitations period typically 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). The state court entered a judgment and sentence against Petitioner on July 14, 2004, and Petitioner did not appeal. Doc. 1, at 1-2. Under Oklahoma law, a conviction arising from a plea of no contest that is not appealed becomes final ten days after entry of judgment and sentence. See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, OKLA. STAT. tit. 22, ch. 18, App. (ten days from entry of judgment and sentence to appeal conviction arising from plea of no contest); see also Canady v. Bryant, 779 Fed.Appx. 528, 529 (10th Cir. 2019). Petitioner's conviction was therefore finalized on July 24, 2004.
Petitioner argues his conviction never became final because “the State of Oklahoma never had subject matter jurisdiction and is NOT a court of competent jurisdiction to finalize convictions regarding Natives committing major crimes within Indian Country.” Doc. 1, at 11. Petitioner's argument misses the mark. A defendant's conviction, once finalized, may remain final even if courts later recognize that the court of conviction lacked subject matter jurisdiction. Cf. United States v. Cuch, 79 F.3d 987, 991-92 (10th Cir. 1996) (holding that the Supreme Court's declaration in Hagen v. Utah, 510 U.S. 399 (1994), that “the state of Utah, not the federal government, had jurisdiction over crimes committed in the disputed area” did not “provide the basis for a collateral attack” after the defendants' convictions were finalized). What is necessary for a defendant's conviction to become finalized is that “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). The question is not whether his conviction was finalized, but whether McGirt should apply retroactively to already-finalized convictions. 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), “[t]he Supreme Court can and does limit the retroactive application of subject matter jurisdiction rulings,” Cuch, 79 F.3d at 990. See generally Teague v. Lane, 489 U.S. 288, 309 (1989) (“[T]he principle of finality [] is essential to the operation of our criminal justice system.”). This Court does not decide whether McGirt should apply retroactively if a claim challenging the convicting court's subject matter jurisdiction were raised in a timely-filed habeas petition. The Court only rejects Petitioner's argument that a jurisdictional defect like the one alleged by Petitioner, if proven, would necessarily mean his conviction never became final.
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” wherein “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))). Therefore, Petitioner's statutory year to file a habeas petition began on July 25, 2004, and expired on July 25, 2005.
2. Petitioner is not entitled to statutory tolling under § 2244(d)(2).
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); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). An application for post-conviction relief in state court “‘remains pending' ‘until the application has achieved final resolution through the State's postconviction procedures,'” that is, when the “State's highest court has issued its mandate or denied review.” Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).
Petitioner filed his application for post-conviction relief in Pottawatomie County District Court on September 8, 2020, fifteen years after his statutory year expired. Doc. 1, at 3. Because Petitioner applied for post-conviction relief after his statutory year to file for habeas relief had already expired, that application did not toll the AEDPA limitations period. 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.”).
C. Petitioner cannot invoke McGirt to obtain a later start date for his statutory year under § 2244(d)(1)(C) or § 2244(d)(1)(D).
The Supreme Court's McGirt decision did not trigger a later start date for Petitioner's statutory year under either § 2244(d)(1)(C) or § 2244(d)(1)(D), and the OCCA reasonably denied Petitioner's claim on that basis.
Under § 2244(d)(1)(C), the one-year limitation period begins to run on “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if [1] the right has been newly recognized by the Supreme Court and [2] made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). The McGirt Court determined that because Congress did not disestablish the Muscogee (Creek) Nation Reservation, the land within the boundaries of that reservation is “Indian country,” as defined in 18 U.S.C. § 1151(a), and Native Americans who commit major crimes, as defined in 18 U.S.C. § 1153(a), within the boundaries of the Muscogee (Creek) Nation Reservation are subject to prosecution in federal court rather than state court. 140 S.Ct. at 2459-60, 2474-78.
Petitioner argues the OCCA unreasonably determined that McGirt does not apply retroactively to already-finalized convictions because “[t]he State of Oklahoma was fully aware that the Supreme Court was not telling the State anything new in McGirt.” Doc. 1, at 10. But for habeas purposes, this Court and those in neighboring districts have rejected the proposition that the date of the McGirt decision should be used as the commencement date under § 2244(d)(1)(C) for challenges to state-court jurisdiction. Donahue v. Harding, No. CIV-21-183-PRW, 2021 WL 4714662, at *5 (W.D. Okla. Sept. 15, 2021) (“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,' a non-constitutional issue.”) (quoting McGirt, 140 S.Ct. at 2459), adopted, 2021 WL 4711680 (W.D. Okla. Oct. 8, 2021); 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 newly recognize any constitutional rights in McGirt.”), cert. of appealability denied, No. 21-5060, 2021 WL 5072980 (10th Cir. Nov. 2, 2021). This Court “finds no basis for application of 28 U.S.C. § 2244(d)(1)(C) or for reliance upon a later commencement date of the limitations period pursuant to that subsection.” Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (analyzing timeliness of claim for habeas relief based on McGirt), cert. of appealability denied, No. 21-6106, 2022 WL 176139 (10th Cir. Jan. 20, 2022).
The OCCA held that, for purposes of post-conviction review, McGirt does not apply retroactively to convictions that were final when the decision was handed down. Matloff, 497 P.3d at 689 (“[W]e now hold that McGirt and our postMcGirt decisions recognizing these reservations shall not apply retroactively to void a conviction that was final when McGirt was decided.”).
Under § 2244(d)(1)(D), the one-year limitation period begins on 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)(D). “[T]he limitations period begins to run when the petitioner knows of the facts giving rise to the habeas claim; it is not required that he or she understand the legal significance of those facts.” Klein v. Franklin, 437 Fed.Appx. 681, 684 (10th Cir. 2011) (applying § 2244(d)(1)(D) and citing Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000)).
Here, the alleged factual bases of Petitioner's claim are that “he is Native American, he was charged with an offense within the boundaries of Indian Country inside the Citizen Potawatomie Nation, and his charged offense fall[s] under the [Major Crimes Act].” Doc. 1, at 7. The undersigned finds that Petitioner would have either known these facts or could have discovered them through the exercise of due diligence at the time of his conviction. See Seals v. Smith, 2020 WL 6038760, at *4 (W.D. Okla. June 4, 2020) (“Petitioner, however, knew the factual predicate for his jurisdictional claim-i.e., the location of his crimes and his status as a tribal member-when he entered his plea.”) (internal quotation marks omitted), adopted, 2020 WL 3605027 (W.D. Okla. July 2, 2020). Thus, even though McGirt “alerted Petitioner to the legal significance of his tribal membership and the location of the crimes, it does not trigger a new start date under § 2244(d)(1)(D).” Donahue, 2021 WL 4714662, at *5; see Seals, 2020 WL 6038760, at *4 (“Thus, even if he did not understand the legal significance of those facts until he learned of the Murphy [v. Royal, 875 F.3d 896 (10th Cir. 2017)] decision, Petitioner cannot rely on § 2244(d)(1)(D) to alter the start date here.”) (internal quotation marks omitted); Barbre v. Whitten, 2019 WL 3976518, at *2 (E.D. Okla. Aug. 22, 2019) (“Petitioner clearly was aware of his status as a Native American and that his crime allegedly occurred on Indian land at the time he entered his plea. Nothing in the Murphy case added anything to the factual basis of Petitioner's claim. At best, Murphy explained the potential legal significance of those facts.”). Because he cannot point to any newly discovered evidence, Petitioner cannot benefit from § 2244(d)(1)(D).
II. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends the Court dismiss Petitioner's habeas petition in its entirety.
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 July 14, 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 and terminates the referral to the undersigned Magistrate Judge in this matter.