From Casetext: Smarter Legal Research

In re Lewis

United States Court of Appeals, Tenth Circuit
Jun 16, 2022
No. 22-5038 (10th Cir. Jun. 16, 2022)

Opinion

22-5038

06-16-2022

In re: MARK EUGENE LEWIS, Movant.


(D.C. No. 4:98-CV-000715-TCK) (N.D. Okla.)

Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges.

ORDER

Mark Eugene Lewis, 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 under 28 U.S.C. § 2244(b), we deny authorization.

We liberally construe pro se pleadings, but we do not make arguments for pro se litigants or otherwise advocate on their behalf. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

In 1990, Mr. Lewis was convicted in Oklahoma state court of rape, sodomy, and larceny. He was sentenced to life in prison, and the Oklahoma Court of Criminal Appeals affirmed his conviction. Mr. Lewis filed his first § 2254 application in 1998, which the district court dismissed as untimely under § 2244(d). We declined to issue a certificate of appealability.

Mr. Lewis's second or successive habeas application cannot proceed in the district court without first being authorized by this court. See id. § 2244(b)(3). We may authorize a claim only if the prisoner has not raised it in a previous § 2254 application. Id. § 2244(b)(1). We may not authorize a new claim unless the prisoner shows either that:

• "the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," id. § 2244(b)(2)(A), or
• "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "the facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense," id. § 2244(b)(2)(B).

Mr. Lewis must make a prima facie showing that he can satisfy these requirements. See id. § 2244(b)(3)(C); Case v. Hatch, 731 F.3d 1015, 1028-29 (10th Cir. 2013).

Mr. Lewis seeks authorization to assert two claims. First, he asserts that the Oklahoma state court lacked jurisdiction to prosecute him because he is a Native American and the charged offense occurred in Indian country. He bases this claim on McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Mr. Lewis therefore must show that this claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. 28 U.S.C. § 2244(b)(2)(A).

Mr. Lewis also argues this claim is based on newly discovered evidence, but the Supreme Court's decision in McGirt is not a newly discovered "factual predicate" underlying his proposed claim, as required by § 2244(b)(2)(B)(i), and he points to no newly discovered facts establishing his innocence, see id. § 2244(b)(2)(B)(ii).

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, 2482. 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 2482. Even assuming without deciding that McGirt announced a new rule of constitutional law, Mr. Lewis has not shown 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)).

Mr. Lewis cites Yellowbear v. Wyoming Att'y Gen., 525 F.3d 921 (10th Cir. 2008), for the general proposition that absence of jurisdiction in the convicting court is a basis for habeas corpus relief under the due process clause. Id. at 924. To the extent this argument is distinct from his McGirt argument, we also reject it based on his failure to satisfy § 2244(b)(2)(A).

Second, Mr. Lewis appears to seek authorization to assert a claim that the state court used a prior accessory-after-the-fact conviction to increase his sentence, but that he was never actually charged with that crime. He does not explain how "the factual predicate" for such a claim "could not have been discovered previously through the exercise of diligence." 28 U.S.C. § 2244(b)(2)(B)(i). Accordingly, we decline to authorize this claim.

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." Id. § 2244(b)(3)(E).


Summaries of

In re Lewis

United States Court of Appeals, Tenth Circuit
Jun 16, 2022
No. 22-5038 (10th Cir. Jun. 16, 2022)
Case details for

In re Lewis

Case Details

Full title:In re: MARK EUGENE LEWIS, Movant.

Court:United States Court of Appeals, Tenth Circuit

Date published: Jun 16, 2022

Citations

No. 22-5038 (10th Cir. Jun. 16, 2022)