Summary
In Davis, the Tenth Circuit considered a habeas petitioner's request for authorization to file a second or successive habeas petition pursuant to 28 U.S.C. § 2244(b)(2)(A) to raise an Indian Country claim based on McGirt.
Summary of this case from Martin v. PettigrewOpinion
21-7030
07-06-2021
In re: ALVIN L. DAVIS, JR., Movant.
(D.C. No. 6:21-CV-00106-RAW-KEW) (E.D. Okla.)
Before TYMKOVICH, Chief Judge, HOLMES and EID, Circuit Judges.
ORDER
Alvin L. Davis, Jr., a state prisoner proceeding pro se, has filed a motion for authorization to file a second or successive 28 U.S.C. § 2254 habeas petition. For the reasons below, we deny authorization.
Mr. Davis was convicted of first-degree murder in Oklahoma state court and sentenced to life in prison. The Oklahoma Court of Criminal Appeals affirmed his conviction and sentence. The district court dismissed Mr. Davis's first § 2254 habeas petition for failure to follow the court's orders. We granted a certificate of appealability (COA), reversed the dismissal, and remanded to the district court. On remand, Mr. Davis filed an amended habeas petition. The district court denied the amended habeas petition on the merits, and we denied Mr. Davis's request for a COA.
Mr. Davis now seeks authorization to file a second or successive § 2254 habeas petition. He contends he is entitled to authorization based on a new rule of constitutional law, citing McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). In McGirt, the Supreme Court determined 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)). Mr. Davis asserts McGirt established that the state lacked jurisdiction to try him because he is a member of the Cherokee Indian Nation and he committed his crime within the Muscogee (Creek) Indian Reservation.
We may grant authorization if Mr. Davis shows that his "claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). He has not made this showing. McGirt did not announce a new rule of constitutional law; instead, it interpreted various statutes and treaties and concluded that because Congress never disestablished the Creek Reservation it remains Indian Country today. See 140 S.Ct. at 2462-82. Accordingly, Mr. Davis cannot meet the standard for authorization in § 2244(b)(2)(A). We therefore deny his motion. 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." 28 U.S.C. § 2244(b)(3)(E).