Opinion
CIV-22-218-G
06-29-2022
CHAD STAR TAYLOR, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Chad Star Taylor (“Petitioner”), a state prisoner appearing pro se,has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Charles Goodwin referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). For the reasons set forth below, the undersigned recommends that Petitioner's petition for habeas relief be DISMISSED with prejudice.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions and summarily dismiss a petition “[i]f it 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). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 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).
II. Procedural History
A. Petitioner's Oklahoma County Sentences
Petitioner is a state inmate currently incarcerated at the Davis Correctional Facility in Holdenville, Oklahoma. (Doc. 1, at 1); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 823253). On September 7, 2018, Petitioner entered pleas of guilty in Oklahoma County District Court to one count of possession of a controlled substance with intent to distribute (Count One); one count of possession of an offensive weapon while committing a felony (Count Two); one count of assault and battery with a deadly weapon (Count Three); and one count of accessory to a felony, to wit: manslaughter in the first degree (Count Four). Oklahoma County District Court, Case Nos. CF-2015-5477 (Counts One and Two); CF-2015-6556 (Count Three);
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF -2015-5477 (Docket Sheet) (last visited June 29, 2022). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (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”) (citation omitted).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF - 2015-6556 (Docket Sheet) (last visited June 29, 2022).
CF-2018-59 (Count Four). (See also Doc. 1, at 1). On November 15, 2018, the court sentenced Petitioner to 20 years of imprisonment on Count One, 10 years of imprisonment on Count Two, 35 years of imprisonment on Count Three, and 35 years of imprisonment on Count Four, each sentence to run concurrently. (Id.) Petitioner neither sought to withdraw his guilty plea nor appealed his judgment or sentence. (Id. at 1-2).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF -2018-59 (Docket Sheet) (last visited June 29, 2022).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On June 22, 2021, Petitioner filed an Application for Post-Conviction Relief before the Oklahoma County District Court, arguing that “Oklahoma lacked jurisdiction to convict Petitioner, an American, for crime(s) occurring on tribal land (reservation)[;] the offense(s) he is convicted for are within exclusive jurisdiction of the United States.” (Doc. 1, at 3); (see also id. at Ex. 1, at 2). On July 26, 2021, the state court denied Petitioner's Application. (Id.) Petitioner appealed, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the denial of Petitioner's Application on November 30, 2021. OCCA, Case No. PC-2021-858.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC- 2021-858 (Docket Sheet) (last visited June 29, 2022).
C. The Petition
On January 31, 2022,Petitioner filed the instant action, asserting one ground for relief, that “[t]he state does not have right of jurisdiction for crimes that occurred on tribal land by fact Petitioner is Indian.” (Doc. 1, at 5). Petitioner claims he exhausted this ground for habeas relief in state court through his Application for Post-Conviction Relief. (Id. at 5, 12). Petitioner argues that his Petition is timely because it was filed within one year of the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), and that “[t]he impediment preventing Petitioner from filing was lifted by the Supreme Court” on the date of the McGirt decision. (Id. at 19).
Petitioner certified that he placed his habeas petition in the mail to the court on January 31, 2022 (Doc. 1, at 20), which is the date the court deems it filed. See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
Petitioner specifically states that the impediment “was lifted by the Supreme Court on a specific day of July, 2020;” McGirt was decided on July 9, 2020.
III. Analysis
A. Petitioner Did Not Timely File His Petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The limitations 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.Id. AEDPA 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. at § 2244(d)(2).
1. The Petition is Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[,] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Because Petitioner did not file a direct appeal, his conviction became final the next business day following the ten days after the trial court entered final judgment, so, on November 26, 2018. OCCA Rules 1.5, 2.1(B). See also Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing.”). The one-year statute of limitations began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until November 27, 2019, to file his habeas petition, absent any tolling event. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Because Petitioner did not attempt to file any form of state post-conviction relief until June 22, 2021 - after the limitations period had already expired - those efforts did not result in 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, Petitioner's habeas action, filed on January 31, 2022, is untimely under § 2244(d)(1)(A).
2. The Statute of Limitations is not Extended by § 2244(d)(1)(B).
Petitioner contends that “[t]he impediment preventing Petitioner from filing” his jurisdictional challenge “was lifted by the Supreme Court on a specific day of July, 2020[,]” referencing the McGirt decision. (Doc. 1, at 19). While § 2244(d)(1)(B) allows for the statute of limitations to be calculated from “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,” the provision does not apply here. Instead, it “typically applies when the state thwarts a prisoner's access to the courts, for example, by denying an inmate access to his legal materials or a law library.” Aragon v. Williams, 819 Fed.Appx. 610, 613 (10th Cir. 2020), cert. denied, 141 S.Ct. 1106 (2021). Further, a “state-created impediment must have actually prevented the inmate from filing his application.” Id.
Petitioner does not allege the State actively thwarted his ability to file a habeas action in this matter. Instead, Petitioner's sole argument is that any effort to obtain habeas relief would have been futile because Oklahoma had not recognized the continued existence of Indian reservations with regard to criminal jurisdiction over Indians who committed crimes on them. But, expected legal futility does not trigger a new start date under § 2244(d)(1)(B). See Heuston v. Bryant, 735 Fed.Appx. 964, 967 (10th Cir. 2018) (concluding reasonable jurists could not debate the correctness of the district court's ruling that “futility is not a valid justification for filing an untimely § 2254 petition” under § 2244(d)(1)(B)); Minter v. Beck, 230 F.3d 663, 666 (4th Cir. 2000) (noting the difference between “impediment” and “futile” and concluding § 2244(d)(1)(B) did not apply because although “an effort by [the petitioner] to obtain habeas relief prior to [a change in law] may have been incapable of producing a successful result, the effort itself was still possible”). And, Oklahoma's pre-McGirt interpretation of what “Indian Country” means did not necessarily prevent Petitioner from seeking timely habeas relief. See Murphy v. Royal, 875 F.3d 896, 907-10 (10th Cir. 2017) (where petitioner raised his Indian-Country related jurisdictional claim prior to McGirt in a 2004 application for post-conviction relief in state court and 2005 federal habeas petition), aff'd sub nom. Sharp v. Murphy, 140 S.Ct. 2412 (2020). Thus, § 2244(d)(1)(B) is not applicable to extend the start date of AEDPA's statute of limitations to the date that McGirt was decided.
3. Section 2244(d)(1)(C) Is Not Applicable Because McGirt Did Not Recognize 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.” 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,” McGirt, 140 S.Ct. at 2459, a non-constitutional issue.
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. Wyoming Atty. 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.”). But, this due-process right was recognized prior to McGirt.
Indeed, “[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, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing 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 recognize any constitutional rights in McGirt.”)), see further Jones v. Pettigrew, 2022 WL 176139, at *1 (10th Cir. Jan. 20, 2022) (denying certificate of appealability and holding that “upon review of the district court's thorough and well- reasoned order, we conclude that reasonable jurists wouldn't debate the correctness of the district court's decision that Jones's petition was untimely.”); Shields v. Crow, 2022 WL 291723, at *3 (W.D. Okla. Jan. 13, 2022), report and recommendation adopted by 2022 WL 291622 (W.D. Okla. Jan. 31, 2022); Sanders v. Pettigrew, 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”); citing accord with Berry v. Braggs, 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.”)). Therefore, § 2244(d)(1)(C) does not apply in this case, and Petitioner's action is untimely.
B. Petitioner Is Not Entitled to Equitable Tolling or The Actual Innocence Exception.
Petitioner does not allege and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding a habeas petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing”) (citation omitted). Nor does Petitioner argue he is actually innocent of the crimes at issue. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding that to present a credible claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”).
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
The court advises Petitioner of his right to object to this Report and Recommendation by July 20, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises Petitioner that failure to make timely objection to this report and recommendation waives his right to appellate review of both factual and legal issues 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 the captioned matter.