Opinion
CIV-22-367-G
05-10-2023
GEORGE E. HELT, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL, 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 state court convictions. United States District Judge Charles Goodwin has referred this matter for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). Based on the reasons set forth herein, the undersigned recommends the Petition be dismissed as untimely and/or procedurally barred.
I. Background Information
Petitioner was convicted in state court, following guilty pleas, of two counts of Shooting with Intent to Kill and one count of Robbery with a Firearm and was sentenced on October 21, 2005. Doc. No. 1 at 1; see also Oklahoma State Court Network, State v. Helt, District Court of Oklahoma County, Case No. CF-2004-660. Petitioner filed an application for post-conviction relief in the state district court on July 1, 2019, relying on Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), to assert the state court did not have subject matter jurisdiction over his criminal proceedings. See Oklahoma State Court Network, State v. Helt, District Court of Oklahoma County, Case No. CF-2004-660. The trial court denied his application on August 6, 2019. Id. Petitioner filed an appeal with the Oklahoma Court of Criminal Appeals (“OCCA”) on August 21, 2019. See Oklahoma State Court Network, Helt v. State, Oklahoma Court of Criminal Appeals, Case No. PC-2019-616. On January 3, 2020, the OCCA affirmed the district court's ruling. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahoma&number=CF- 2004-660
In Murphy, the petitioner, relying on the federal Major Crimes Act, argued that because he was an Indian and the crimes underlying his criminal charges were committed on what he purported was Indian land, subject matter jurisdiction lay exclusively in the federal, rather than the state, courts. Id. at 903, 915. The Major Crimes Act “applies to enumerated crimes committed by Indians in ‘Indian country.' When the Major Crimes Act applies, jurisdiction is exclusively federal.” Id. at 915 (citing Negonsott v. Samuels, 507 U.S. 99, 103 (1993) (“[F]ederal jurisdiction over the offenses covered by the Indian Major Crimes Act is exclusive of state jurisdiction.” (quotations omitted)); Cravatt v. State, 825 P.2d 277, 279 (Okla. Crim. App. 1992) (“[Q]uite simply the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.” (quotations omitted)). In Murphy, the Tenth Circuit agreed with the petitioner regarding the land at issue, and the State appealed the court's decision to the United States Supreme Court, discussed in more detail below.
https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahoma&number=CF- 2004-660
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC 2019-616&cmid=126782.
Petitioner filed the instant action on May 3, 2022, raising three grounds for relief. Doc. No. 1. In his first ground, Petitioner again argues that the state court did not have jurisdiction over his criminal proceedings. Id. at 5-6. Second, he asserts that his trial counsel was not licensed to practice in Indian country. Id. at 6-7. In his final ground for relief, Petitioner contends the state court violated the Speedy Trial Act. Id. at 7.
II. Screening Requirement
Under the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[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. “[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). Petitioner has such notice by this Report and Recommendation, and has an opportunity to present his position by filing an objection to the same. Further, when raising a dispositive 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 ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 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).
III. Petitioner's Second and Third Grounds for Relief
In order to be heard in federal court on a petition for writ of habeas corpus, a state prisoner generally must have “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). As explained by the Tenth Circuit,
To exhaust a claim, a state prisoner must pursue it through “one complete round of the State's established appellate review process,” giving the state courts a “full and fair opportunity” to correct alleged constitutional errors. O'Sullivan v. Boerckel, 526 U.S. 838, 845 [] (1999). If a state prisoner has not properly exhausted state remedies, the federal courts ordinarily will not entertain an application for a writ of habeas corpus unless exhaustion would have been futile because either “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii).Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011).
In his second and third grounds for habeas relief, respectively, Petitioner asserts that his trial counsel was not licensed to practice law in Indian country and that the state court violated his right to a speedy trial. Petitioner did not raise either of these challenges in his state post-conviction application, nor in his appeal of the same. See, supra. Accordingly, neither claim is exhausted.
Based on Petitioner's failure to properly present these challenges to the OCCA, the Court would generally dismiss them, and Petitioner would be provided an opportunity to return to state court. However, because the bases for these claims were known to Petitioner at the time of his post-conviction appeal, Oklahoma would deem the same claims waived and procedurally barred. King v. State, 29 P.3d 1089, 1090 (Okla. Crim. App. 2001) (“All claims which could have previously been raised [in the direct appeal or in a previous post-conviction proceeding] but were not are waived ....”). Accordingly, Petitioner has no prospect of obtaining relief in state court.
In this circumstance, Petitioner's grounds for relief are barred from federal habeas review based on procedural default. More specifically, if a petitioner fails to present his federal claim to a state court and that claim would now be procedurally barred from review at the state level, the claim is considered procedurally defaulted and not subject to federal habeas review. See Ellis v. Raemisch, 872 F.3d 1064, 109094 (10th Cir. 2017) (finding that the district court erred in considering the petitioner's ineffective assistance claims that were not raised in his state court proceedings, were now procedurally barred in state court, and therefore, were procedurally defaulted for purposes of habeas review) (citing O'Sullivan, 526 U.S. at 848 (“There is no dispute that this state court remedy-a petition for leave to appeal to the Illinois Supreme Court-is no longer available to Boerckel; the time for filing such a petition has long passed.... Thus, Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims.”)); see also Coleman v. Thompson, 501 U.S. 722, 735 n.1 [] (1991) (“This rule [allowing a federal habeas court's consideration of fairly presented federal claims] does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims.”), qualified by Martinez v. Ryan, 566 U.S. 1, 15 [] (2012); Welch v. Milyard, 436 Fed.Appx. 861, 869 (10th Cir. 2011) (“[W]ere Mr. Welch to attempt to raise this claim in the state trial court at this juncture, it would be dismissed ....Thus, Mr. Welch has procedurally defaulted his claim ....”).
Petitioner's second and third grounds for relief are therefore procedurally barred unless he can demonstrate cause and prejudice or that a miscarriage of justice will occur if the Court does not review them. Coleman, 501 U.S. at 750. The Court anticipates Petitioner will attempt to establish cause and prejudice based on an assertion that he could not have been aware of the jurisdictional argument until recent judicial decisions regarding exclusive federal jurisdiction over crimes committed by Indians on Indian land. He may also attempt to establish cause and prejudice by arguing that he could not exhaust these claims in state court because the court lacked jurisdiction over his proceedings. Id. As explained in more detail below, however, such arguments are unavailing.
IV. First Ground for Relief
A. Applicable Statute of Limitations Period
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year limitation period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitation 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 limitation period begins to run from the date on which the conviction becomes final. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner asserts facts that would implicate subsection (C). According to
Petitioner, the State of Oklahoma did not have jurisdiction over his criminal proceedings. The recent court decisions upon which Petitioner must inherently rely in asserting this argument, however, do not trigger § 2244(d)(1)(C) and do not change the date Petitioner's convictions became “final” under the AEDPA.
Contrary to the premise of Petitioner's argument, 28 U.S.C. § 2244(d)(1)(A) is applicable to his case. Under this section, a petitioner must seek habeas relief within the one-year limitation period that begins to run from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]” After pleading guilty, Petitioner was sentenced on October 21, 2005. See, supra at 1. Petitioner did not move to withdraw his guilty pleas, nor did he file a direct appeal. Petitioner's convictions became final, therefore, on October 31, 2005, upon expiration of the ten-day period during which Petitioner could have filed a timely application to withdraw his guilty pleas. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.; Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (noting the petitioner's Oklahoma convictions became “final ten days after entry of Judgment and Sentence.”). Application of the one-year limitation period under § 2244(d)(1)(A) means that, absent statutory or equitable tolling, Petitioner's one-year limitation period for filing a federal habeas petition expired on November 1, 2006.
Petitioner relied on Murphy, supra, to assert his claim in his post-conviction application that the state court lacked jurisdiction over his criminal proceedings. Murphy presented the same jurisdictional challenge at issue in McGirt v. Oklahoma, ___ U.S. ___, 140 S.Ct. 2452 [] (2020). Liberally construing the Petition, the Court interprets Petitioner's claim as relying on the Supreme Court's decision in McGirt to argue that his first ground for relief was not available until July 9, 2020, the date the Supreme Court issued the McGirt decision. This argument necessarily relies, however, on the premise that McGirt recognized a new constitutional right. It did not.
On the same date the Supreme Court issued McGirt, it summarily affirmed Murphy “for the reasons stated in McGirt ....” Murphy, 140 S.Ct. 2412. See Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted, 138 S.Ct. 2026 (2018), and aff'd sub nom. Sharp v. Murphy, 140 S.Ct. 2412 (2020).
Section 2244(d)(1)(C) provides that the AEDPA's statute of limitations may run from “the date on which the constitutional right asserted was initially recognized by the Supreme Court,” if the right is newly recognized and “made retroactively applicable to cases on collateral review[.]” Because McGirt did not recognize a new constitutional right, however, this provision does not apply. Rather, the Supreme Court merely applied the Major Crimes Act to the case. The Major Crimes Act is longstanding federal law that generally divests state courts of jurisdiction “to try Indians for conduct committed in ‘Indian country.'” McGirt, 140 S.Ct. at 2459 (citing Negonsott, 507 U.S. at 102-03). 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). After explaining that certain land, now in the State of Oklahoma, was promised by treaty to the Creek nation in return for ceding all their lands east of the Mississippi River to the United States Government, the Court addressed a narrow question: “[W]hether the land these treaties promised remains an Indian reservation for purposes of federal criminal law.” McGirt, 140 S.Ct. at 2459. The Court succinctly answered the question holding that “[b]ecause Congress has not said otherwise, we hold the government to its word.” Id.
To arrive at its narrow holding, 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. Id. at 2460-68. Indeed, the Court looked only to Acts of Congress to answer the question before it, based on the Court's previous holding that “[o]nly 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 initiating the federal allotment policy in the early twentieth century citing established law. “[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 Nebraska v. Parker, 577 U.S. 481, 489 (2016); Mattz v. Arnett, 412 U.S. 481, 497 (1973); Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356-58 (1962)). The Court determined that, even though the federal government engaged in 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.
In sum, McGirt does not make 28 U.S.C. § 2244(d)(1)(C) applicable to Petitioner's case because the Court did not recognize a new rule of constitutional law. Rather, the Court answered the narrow question before it, determining that the Muscogee (Creek) Nation “remain[ed] an Indian reservation for purposes of federal criminal law.” Clearly, the Court's holding did not involve a constitutional issue. Id. at 2459. Indeed, this Court and other “[c]ourts in this Circuit . . . have rejected the proposition that the date of the McGirt decision should be used as the commencement date [of the limitation period] under § 2244(d)(1)(C) for habeas challenges to state-court jurisdiction.” Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, No. 18-CV-477-CVE-JFJ, 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)); 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.”)).
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. Wyo. Att'y 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.”). This due-process right was, however, recognized prior to the Court's decision in McGirt, and was, therefore, available to Petitioner when he was convicted.
In a different context, the Tenth Circuit Court of Appeals expressed doubt that McGirt presented a new rule of constitutional law. See Order, In re Morgan, No. 206123 (10th Cir. Sept. 18, 2020) (denying authorization to file a second or successive § 2254 habeas petition where the petitioner relied on McGirt). 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 quotations omitted) (citing 28 U.S.C. §2244(b)(2)(A)); see also Jones, 2021 WL 3854755, at *3, n.1 (same). What is more, the Supreme Court recently denied Petitions for Writ of Certiorari in three cases in which the petitioners were challenging state court rulings that McGirt did not apply retroactively. Parish v. Oklahoma, 142 S.Ct. 757 (2022); Davis v. Oklahoma, 142 S.Ct. 793 (2022); Compelleebee v. Oklahoma, 142 S.Ct. 792 (2022). For these reasons, the Court should find that § 2244(d)(1)(C) does not apply in this case and thus, absent statutory or equitable tolling, Petitioner's action is untimely.
For these reasons, to the extent Petitioner may attempt to rely on McGirt and related case law to establish cause and prejudice in order to avoid the application of anticipatory procedural bar to his second and third grounds for relief, such an argument fails.
B. Alleged Lack of Jurisdiction
Petitioner contends this action is timely because he has “unlimited time to file a jurisdictional challenge.” Doc. No. 1 at 13. While it is true that under Oklahoma law, a jurisdictional challenge cannot be waived, there is no exception in 28 U.S.C. § 2244(d)(1) for a habeas claim based on a trial court's alleged lack of subject matter jurisdiction.
See Triplet v. Franklin, 365 Fed.Appx. 86, 95 (10th Cir. 2010) (“In Oklahoma, issues of subject-matter jurisdiction.”). Thus, the Court should conclude: (1) that a claim alleging a lack of jurisdiction in the trial subject matter jurisdiction cannot be waived and can be raised for the first time on collateral review.” (citing Wallace v. State, 935 P.2d 366, 372 (Okla. Crim. App.1997) (“[E]ven though not raised on direct appeal, issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.”)).
In Morales v. Jones, 417 Fed.Appx. 746 (10th Cir. 2011), the Tenth Circuit held that although the “[a]bsence of jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief cognizable under the due process clause[,]” as with any due process claim, a lack of jurisdiction claim raised in a federal habeas action is “subject to dismissal for untimeliness.” Id. at 749 (citing United States v. Patrick, 264 Fed.Appx. 693, 694-95 (10th Cir. 2008) (affirming district court's dismissal of untimely habeas petition challenging convicting court's jurisdiction); Yellowbear, 525 F.3d at 924); see also Ross v. Pettigrew, No. 20-CV-0396-JED-CDL, 2021 WL 1535365, at *3 n.5 (N.D. Okla. Apr. 19, 2021) (rejecting the petitioner's assertion that a challenge to the state court's subject-matter jurisdiction can be raised at any time and thus is not subject to § 2244(d)(1)'s one-year statute of limitations, stating: “The flaw in that argument is that the plain language of § 2244(d)(1) provides no exception for due-process claims challenging court is subject to the AEDPA's one-year statute of limitation and (2) under §2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
C. Statutory Tolling
The AEDPA's limitation 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. 28 U.S.C. § 2244(d)(2). On July 1, 2019, Petitioner filed an application for post-conviction relief. See, supra. Because the one-year limitation period had already expired when he filed this application, however, it did not toll the one-year limitation period 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 the Petition is not rendered timely through application of 28 U.S.C. § 2244(d)(2).
D. Equitable Tolling
The Tenth Circuit has determined that 28 U.S.C. § 2244(d) is not jurisdictional and “may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Generally, equitable tolling is warranted only in situations where the petitioner was actively misled or is prevented in some extraordinary way from asserting her rights. Id. at 418-19. Here, Petitioner makes no argument that he is entitled to equitable tolling.
The Supreme Court has also held that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, such tolling of the limitation period for actual innocence is appropriate only in rare instances in which the petitioner shows that “in light of the new evidence [presented by the petitioner], no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Petitioner has made no claim that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to such a claim. Thus, the “actual innocence” exception to procedural bar cannot be applied to excuse Petitioner's untimely filing of his Petition.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for Writ of Habeas Corpus be dismissed without prejudice as untimely and/or procedurally barred. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 30th . 2022. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.