Opinion
CIV-22-3-SLP
01-13-2022
LARRY D. CECIL, Petitioner, v. SCOTT NUNN, 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. United States District Judge Scott L. Palk has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined and for the reasons set forth herein, it is recommended the Court dismiss the Petition as untimely.
I. Background Information
Petitioner was convicted of Rape, Oral Sodomy, Anal Sodomy, and Kidnapping on May 29, 1987. Doc. No. 1 at 1. Petitioner has filed at least four applications for post-conviction relief, the earliest of which appears to have been filed on August 24, 2020. Id. at 3-4; see also Oklahoma State Courts Network, District Court of Oklahoma County, State v. Cecil, Case No. CF-86-6887.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF- 1986-6887
By this action, Petitioner alleges the trial court lacked jurisdiction over his crimes based on State ex. rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021) because he is an Indian and his crimes allegedly occurred on Indian land. Doc. No. 1 at 5-7. In Wallace, the Oklahoma Court of Criminal Appeals (“OCCA”) considered the question of whether McGirt v. Oklahoma, ___U.S.___ 140 S.Ct. 2452 (2020), discussed in more detail herein, applied retroactively to certain criminal cases previously tried in the Oklahoma state courts.
In his Petition, Petitioner states, “Oklahoma lacked jurisdiction according to Wallace v. State, 2021.” Doc. No. 1 at 5. Construing the Petition liberally, the Court presumes Petitioner intended to reference the case indicated above.
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 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 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), implying he could present a McGirt challenge following the OCCA's decision in Wallace. Doc. No. 1 at 5. While Petitioner's reliance on Wallace is misplaced, it is unnecessary to address this issue as the McGirt decision does not trigger § 2244(d)(1)(C) to extend his convictions' finality date.
Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must seek habeas relief within 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 on May 29, 1987. See supra. Petitioner filed an appeal and the OCCA affirmed his convictions and sentences on January 8, 1990. Doc. No. 1 at 2; see also Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Cecil v. State, Case No. F-87-904.Petitioner's convictions therefore became “final” under 28 U.S.C. § 2244(d)(1)(A) on Monday, April 9, 1990, when the time for Petitioner to seek certiorari review, which he did not do, with the United States Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (“Under the statute, a petitioner's conviction is not final and the one-year limitation period for filing a federal habeas petition does not begin to run until . . . ‘after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed.'” (quoting Rhine, 182 F.3d at 1155)).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F 19872904&cmid=22456
See Sup. Ct. R. Rule 13(1) (providing that applicant for certiorari has 90 days from date of judgment to file petition for writ of certiorari); 28 U.S.C. § 2101(d).
However, because Petitioner's convictions 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.” Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001). 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 December 27, 2021.
Petitioner asserts that his basis for seeking habeas relief did not ripen until August 2021 when the OCCA applied the McGirt decision in Wallace. As previously stated, Petitioner's reliance on Wallace as triggering his statute of limitations is misplaced. However, the relevance of his assertion to the current matter is Petitioner's inherent argument 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 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 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 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 petition was relying 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.___, __ 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.
Notably, the OCCA's decision in Wallace, upon which Petitioner purports to rely, was actually contrary to Petitioner's argument herein. The OCCA determined that McGirt does not apply retroactively and therefore, would not extend the time for Petitioner to challenge the state court's jurisdiction over his criminal proceedings. Wallace, 497 P.3d at 689-94.
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 August 24, 2020, 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, 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)).
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.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 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 2nd, 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.”).
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.