Opinion
CIV-21-1003-D
01-31-2022
MARK SHIELDS, 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 a state court conviction. Before the Court is Respondent's Motion to Dismiss (Doc. No. 17), to which Petitioner has filed a Response. Doc. No. 20. United States District Judge Timothy D. DeGiusti 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 Respondent's Motion to Dismiss be granted. 1
I. Background Information
Petitioner was convicted of Murder in the First Degree, following a guilty plea, on February 1, 1984. Doc. No. 1 at 1; Doc. No. 18-1 at 16. On May 10, 2021, Petitioner filed an application for post-conviction relief. Doc. No. 18-2. Therein, Petitioner argued, inter alia, that the state court lacked jurisdiction over his criminal trial based on McGirt v. Oklahoma, U.S., 140 S.Ct. 2452 (2020). The state district court denied Petitioner's application on July 6, 2021. Doc. No. 18-3. Petitioner appealed this decision to the Oklahoma Court of Criminal Appeals, which affirmed the state district court's decision on October 1, 2021. Doc. Nos. 18-4, 18-5.
Petitioner filed the instant action on October 13, 2021. Doc. No. 1. Herein, he again argues, based on McGirt, that the state district court did not have jurisdiction over his criminal proceedings. Doc. No. 1 at 2-5. Petitioner requests that his criminal record be expunged. Id. at 6. Respondent has filed a Motion to Dismiss. Doc. No. 17. He contends Petitioner's request for habeas relief is untimely and should, therefore, be dismissed.
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it 2 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). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. 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. Statute of Limitations
A. Applicable Limitations Period
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period 3 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 limitations period generally begins to run from the date on which the conviction becomes final. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner has suggested facts that would implicate subsection (C), indicating that McGirt revealed that the State of Oklahoma did not have jurisdiction over his criminal proceedings. Doc. No. 20 at 3-4. However, the McGirt decision does not trigger § 2244(d)(1)(C) to extend his conviction's finality date.
Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must seek habeas relief within 4 one-year and said limitations period generally 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[.]” Petitioner was sentenced, following a guilty plea, on February 1, 1984. See supra. Petitioner did not move to withdraw his plea or file a direct appeal. Thus, Petitioner's conviction became “final” under 28 U.S.C. § 2244(d)(1)(A) on Monday, February 13, 1984, when the ten-day time period for Petitioner to file an application to withdraw his guilty plea expired. 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.”).
However, because Petitioner's conviction became final prior to the passage of the AEDPA, “the one year limitation period for a federal habeas petition start[ed] on [the] AEDPA's effective date, April 24, 1996.” Id. Thus, Petitioner had one year beginning on April 24, 1996, to file his federal habeas petition commensurate with 28 U.S.C. § 2244(d)(1)(A). Absent statutory or equitable tolling, his one-year filing period expired on April 24, 1997. Petitioner did not file this action until October 13, 2021. 5
Petitioner implies that his basis for seeking habeas relief did not ripen until July 2020 when the Supreme Court issued the McGirt decision. Such an argument inherently relies on the premise that McGirt recognized 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[.]” However, because McGirt did not recognize a new constitutional right, the provision does not apply.
McGirt revolved around a longstanding rule that “[s]tate courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.'” McGirt, 140 S.Ct. at 2459 (citing Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993)). This is so because 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 6 jurisdiction of the United States Government[.]” 18 U.S.C. § 1151(a). Thus, the relevant question for the Supreme Court was “whether the land [] treaties promised [the Creek Nation] remain[ed] an Indian reservation for purposes of federal criminal law.” McGirt, 140 S.Ct. at 2459.
To answer that question, 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 only looked to Acts of Congress to answer that question 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 federal allotment policy in the early twentieth century because 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 while the federal government engaged in other policy decisions negatively impacting the sovereignty of the Muscogee (Creek) Nation, “there simply arrived no moment when 7 any Act of Congress dissolved the Creek Tribe or disestablished its reservation.” Id. at 2468.
McGirt 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. 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 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 8 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.”). However, this due-process right was recognized prior to McGirt.
The Tenth Circuit has addressed McGirt in a different context and expressed doubt that the decision presented a new rule of constitutional law. See Order, In re Morgan, No. 20-6123 (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). Relatedly, the Supreme Court recently denied Petitions for Writ of Certiorari in three cases in which the petitioners were challenging state court rulings that McGirt was not retroactive. State ex. rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021), cert. denied, Parish v. Okla., __ S.Ct. __, 2022 WL 89297 (Jan. 10, 2022); Davis v. Okla., __ S.Ct. __, 2022 WL 89459 (Jan. 10, 2022); Compelleebee v. Okla., 9 __ S.Ct. __, 2022 WL 89454 (Jan. 10, 2022). Therefore, the Court should find that § 2244(d)(1)(C) does not apply in this case and thus, Petitioner's action is untimely.
B. Statutory Tolling
The AEDPA limitations 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 May 10, 2021, Petitioner filed his first application for post-conviction relief. See supra. However, because the one-year limitations period had already expired at that time, the application did not provide 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, the Court should conclude the Petition is not rendered timely through application of 28 U.S.C. § 2244(d)(2).
C. Equitable Tolling
28 U.S.C. “§ 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). “Generally, 10 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 his 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 limitations 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)). 11
Petitioner has made no allegation that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to the same. As a result, the Court should conclude that the “actual innocence” exception does not apply.
To the extent Petitioner intended to assert alleged deficiencies in his post-conviction process as a basis for habeas relief, see Doc. No. 1 at 4, the Tenth Circuit has held that challenges to procedural aspects of a postconviction action in state court are not cognizable under § 2254. Benshoof v. Tavanello, 398 Fed.Appx. 365, 368 (10th Cir. 2010) (“Finally, Mr. Benshoof's remaining four claims-those challenging certain procedural aspects of his postconviction action in state court-are not cognizable under § 2254.” (citing Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.1993) (defendant's claim challenging Oklahoma's postconviction procedures “fail[s] to state a federal constitutional claim cognizable in a federal habeas proceeding”)).
RECOMMENDATION
Based on the foregoing findings, it is recommended Respondent's Motion to Dismiss (Doc. No. 17) be GRANTED and the Petition for a Writ of Habeas Corpus be dismissed without prejudice as untimely. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by February 2 nd, 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.”). 12
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. 13