Opinion
22-6002
01-19-2022
In re: JOHNNY MALONE, Movant.
D.C. No. 5:03-CV-00096-C (W.D. Okla.)
Before HOLMES, BRISCOE, and PHILLIPS, Circuit Judges.
ORDER
Johnny Malone, 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 1998, Malone was convicted in Oklahoma state court of first-degree murder and sentenced to life imprisonment. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction in 1999. Malone filed his first § 2254 application in 2003. The district court dismissed it as untimely, and after granting Malone a certificate of appealability, we affirmed.
Malone'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). Malone 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 (10th Cir. 2013).
Malone seeks authorization to assert a claim that the Oklahoma state court lacked jurisdiction to prosecute him because he is an "Indian" for purposes of federal jurisdiction, and the charged offense occurred in Indian country. He bases this claim on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Malone 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). Malone 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 Malone show that the Supreme Court has made McGirt retroactive to cases on collateral review. See In re Jones, 847 F.3d 1293, 1295 (10th Cir. 2017) ("The only way the Supreme Court could make a rule retroactively applicable is through a holding to that effect." (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).