Opinion
21-5083
12-03-2021
In re: GREGORY JOHN BUSHYHEAD, Movant.
(D.C. No. 4:10-CV-00797-CVE-FHM) (N.D. Okla.)
Before TYMKOVICH, Chief Judge, PHILLIPS, and CARSON, Circuit Judges.
ORDER
Gregory John Bushyhead, 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 2008, Bushyhead was convicted in Oklahoma state court of first-degree manslaughter and leaving the scene of an injury accident. The trial court imposed consecutive sentences of fourteen and nine years' imprisonment on the two counts. The Oklahoma Court of Criminal Appeals (OCCA) affirmed. The trial court later modified Bushyhead's sentence for leaving the scene to a nine-year suspended sentence. The district court denied his first § 2254 motion, and we denied a certificate of appealability.
Bushyhead'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). Bushyhead 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).
Bushyhead seeks authorization to assert a claim that the Oklahoma state court lacked jurisdiction to prosecute him because he is a Native American-an enrolled member of the Cherokee Nation-and the charged offenses occurred in Indian Country. He bases this claim on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Bushyhead 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).
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.
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). Bushyhead 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 Bushyhead 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).