Opinion
CIV-22-904-JD
10-28-2022
WILLIAM THOMAS COX, Petitioner, v. DEON CLAYTON, Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner William Thomas Cox, proceeding pro se, brings this action under 28 U.S.C. § 2254, seeking habeas corpus relief from his state convictions. Doc. 1. United States District Judge Jodi W. Dishman referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. After a careful examination of the petition, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned recommends dismissal of this habeas corpus petition as untimely. See 28 U.S.C. § 2244(d)(1).
Petitioner has not yet paid the filing fee or moved to proceed without prepayment of the filing fee. The Court has ordered him to either pay the fee or file an in forma pauperis motion by November 8, 2022. Doc. 4. If the Court adopts this Report and Recommendation, it should moot the undersigned's order to cure.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Screening requirement.
Rule 4 requires this Court to promptly review habeas petitions and promptly dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases in the United States District Courts. This rule allows the Court to sua sponte raise the timeliness of a petition for writ of habeas corpus if untimeliness is “clear from the face of the petition.” Kilgore v. Att'y Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008); see also Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”).
“[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. This Report and Recommendation gives Petitioner notice, and he may present his position by objecting to the Report and Recommendation.
II. State court procedural history.
Petitioner entered a plea of guilty in the District Court of Cleveland County, Oklahoma, Case No. CF-2016-73, to charges of indecent exposure and making a lewd proposal to a child under sixteen. Doc. 1, at 2; Doc. 6, at 1. The trial court accepted Petitioner's plea and found Petitioner guilty of the charges. On October 12, 2016, the trial court sentenced Petitioner to concurrent sentences of twelve years' imprisonment. Id. Petitioner moved to withdraw his plea which the trial court denied after a hearing. State v. Cox, No. CF-2016-73 (Docket entries dated Oct. 25, 2016 & Nov. 21, 2016). Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA), and that court denied his petition for writ of certiorari on August 10, 2017. Cox v. State, No. C-16-1129 (Okla. Crim. App. Aug. 10, 2017); see also Doc. 1, at 3. Petitioner applied for post-conviction relief in the state district court on March 14, 2022, alleging his offenses had occurred in “Indian Country,” that he was of “Indian heritage,” that the State of Oklahoma had no jurisdiction, and his convictions were “illegal” and “void.” Doc. 1, at 3. The state district court denied Petitioner's application on April 22, 2022. Id. at 3 & Ex. 1. Petitioner appealed and the OCCA, relying on its decision in Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021), affirmed the district court's denial on July 11, 2022. Id. Ex. 2.
The undersigned takes judicial notice of the docket report in Petitioner's state-court proceeding: State v. Cox, No. CF-2016-73, https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Cleveland&numb er=cf-2016-73 (last visited Oct. 21, 2022). 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'” (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007))).
The OCCA held in Matloff that, for purposes of post-conviction review, McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), does not apply retroactively to convictions final when the decision was handed down. 497 P.3d at 689 (“[W]e now hold that McGirt and our postMcGirt decisions recognizing these reservations shall not apply retroactively to void a conviction that was final when McGirt was decided.”).
Petitioner sought relief in this Court on October 14, 2022. Doc. 1. For the reasons stated below, the undersigned recommends the Court dismiss the petition as untimely.
The Court liberally construes Petitioner's pleadings because he proceeds pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). But the Court does not serve as Petitioner's advocate. See Hall, 935 F.2d at 1110.
III. Discussion.
Petitioner states in his petition that he is “an Indian of the Cherokee Nation,” he has “a quantum of Indian blood as evidenced by” his “Cherokee Nation CDIB card,” and that he is “recognized as an Indian by a Tribe or other government.” Id. at 4. He states in his brief in support of his petition that his crimes “occurred within the boundaries of the Cherokee Nation, specifically in Noble, Oklahoma 73068.” Doc. 6, at 2.
Petitioner claims that “the State of Oklahoma lacked jurisdiction to prosecute him, pursuant to the treaties between the United States and Natives and case law ....” Id. at 5. He asserts his petition is timely because “subject matter jurisdiction involves a court's power to act” and “‘it can never be forfeited or waived.'” Doc. 1, at 7 (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)); see also Doc. 6, at 2 (stating that a “lack of jurisdiction is a constitutional right which is never finally waived” (internal quotation marks omitted)).
The undersigned liberally construes Petitioner's petition as asserting two claims related to the timeliness of his petition: (1) that § 2244(d)'s one-year statute of limitations does not apply because the state court lacked jurisdiction; and (2) that his conviction can never be final because the state court lacked jurisdiction. The Court should reject both arguments.
A. Petitioner's assertion that the statute of limitations does not apply to his jurisdictional claim lacks merit.
“The Tenth Circuit has previously rejected the argument that issues of subject matter jurisdiction are never waived and may be raised at any time.” Davis v. Crow, No. CIV-22-162-F, 2022 WL 885046, at *1 (W.D. Okla. Mar. 24, 2022) (citing Morales v. Jones, 417 F. App'x. 746, 749 (10th Cir. 2011)). “As with any other habeas claim, [a lack of jurisdiction claim] is subject to dismissal for untimeliness.” Morales, 417 Fed.Appx. at 749; see also Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (“‘As with any other habeas claim,' however, § 2254 claims predicated on the convicting court's lack of jurisdiction are ‘subject to dismissal for untimeliness.'” (quoting Morales, 417 Fed.Appx. at 749)), certificate of appealability denied, 2022 WL 176139 (10th Cir. Jan. 20, 2022). The Court must therefore apply the statute of limitations to Petitioner's claim that the state court lacked jurisdiction over his crimes. See, e.g., Cole v. Pettigrew, 2021 WL 1535364, at *2 n.4 (N.D. Okla. Apr. 19, 2021) (“Regardless of whether [the petitioner] can raise a challenge to the trial court's subject-matter jurisdiction in state court, free of any time limitations, the plain language of § 2244(d)(1)'s one-year statute of limitations makes no exception for claims challenging subject-matter jurisdiction.”).
B. The limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
The limitation period shall run 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. It also 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. § 2244(d)(2). A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only “in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“AEDPA's one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.'” (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998))); see also Holland v. Florida, 560 U.S. 631, 645 (2010) (“[Section] 2244(d) is subject to equitable tolling in appropriate cases.”).
1. Petitioner's convictions and sentences were final in 2017 and, absent tolling or an exception, his 2022 petition is untimely.
Unless a petitioner shows otherwise, the limitations period typically runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). A conviction is considered final “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.” Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (internal quotation marks omitted). Petitioner's convictions and sentences became final on November 8, 2017, ninety days after the OCCA denied his petition for writ of certiorari. See Cox, No. C-16-1129 (OCCA denied certiorari on August 10, 2017); see also Collins v. Bear, 698 Fed.Appx. 946, 948 (10th Cir. 2017) (holding that the petitioner's convictions became final ninety days after the OCCA affirmed his convictions).
The one-year limitations period begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” in which “the day of the act . . . from which the designated period of time begins to run shall not be included” (quoting Fed.R.Civ.P. 6(a))). So, Petitioner's statutory year to file a habeas petition began on November 9, 2017, and, absent tolling, expired one year later, on November 9, 2018.
Petitioner argues his jurisdictional claim is “properly and timely raised.” Doc. 1, at 7. The Court liberally assumes Petitioner's assertion relates to the finality of his convictions. But the Tenth Circuit Court has rejected an argument that a “criminal judgment entered by a court without jurisdiction cannot become ‘final' under 28 U.S.C. § 2244(d)(1)(A).” Doak v. Nunn, 2022 WL 3452832, at *2 (10th Cir. Aug. 18, 2022). “[W]hen a judgment becomes final depends only on when certain procedures have been completed.” Id.; see Locke, 237 F.3d at 1273.
As explained above, Petitioner's convictions became final on November 8, 2017, and his statute of limitations expired on November 9, 2018. Yet Petitioner did not file his habeas corpus petition until October 14, 2022. Absent statutory tolling or an exception, his petition is therefore untimely under § 2244(d)(1)(A).
Petitioner does not invoke any other § 2244(d) subsection to secure a later deadline.
2. Statutory tolling.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). But Petitioner's application for post-conviction relief, filed after the November 9, 2018 deadline, did not toll the limitations period. 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.”).
3. Petitioner is not entitled to equitable tolling or the actual innocence exception.
Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Generally, “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.” Holland, 560 U.S. at 649 (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner does not claim he is entitled to equitable tolling or that any extraordinary circumstance prevented him from timely filing his petition. The Court should thus conclude that the equitable tolling exception does not apply. See, e.g., Sanders v. Pettigrew, 2021 WL 3291792, at **1, 6 (E.D. Okla. Aug. 2, 2021) (finding “no evidence in the record to suggest that uncontrollable circumstances impeded him from timely filing his federal claim,” where the petitioner's “sole ground for relief is a claim of ineffective assistance of counsel with respect to a jurisdictional claim under McGirt,” as the petitioner argued “he is an Indian, his crimes occurred within the boundaries of the Choctaw and Chickasaw Reservations, and his crimes should have been prosecuted under the Major Crimes Act”).
Petitioner's only remaining path around the § 2244(d)(1)(A) deadline would be a viable actual innocence claim. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (“[A]ctual 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.”). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Bousely v. United States, 523 U.S. 614, 623 (1998); see also Pacheco v. El Habti, 48 F.4th 1179, 1188 (10th Cir. 2022) (explaining that the factual-innocence “gateway is a creation of equity,” which a petitioner can only engage by showing a lack of “moral culpability” for the crime).
Petitioner does not assert he is factually innocent of his crimes. Rather, he asserts the state court lacked jurisdiction to try him for those crimes. But this claim, which “is not based on evidence regarding what [he] did, but on where [he] did it,” is insufficient to invoke this Court's “equitable sensibilities.” Pacheco, 48 F.4th at 1189; see also Jones, 2021 WL 3854755, at *4 (finding that the petitioner's arguments challenging the jurisdiction of the state courts did “not equate to a claim of factual innocence,” and the petitioner had presented “no such evidence of actual innocence to the Court” (citing Schlup v. Delo, 513 U.S. 298, 324 (1995))). The Court should thus decline to offer Petitioner “a gateway to escape the statutory bar on [his] untimely claim.” Pacheco, 48 F.4th at 1190.
The undersigned finds no basis to grant equitable tolling of, or an equitable exception to, the one-year limitation period. The Court should therefore find that Petitioner untimely filed his petition.
IV. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends the Court dismiss Petitioner's habeas petition as untimely filed under 28 U.S.C. § 2244(d). The undersigned also recommends the Court deny as moot Petitioner's motion to appoint counsel. Doc. 5.
The undersigned advises Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before November 18, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions 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 this matter.