Opinion
CIV-22-605-J
10-12-2022
SAMUEL NATHANIEL SCOTT, Petitioner, v. LUKE PETTIGREW, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed an Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 and Brief in Support. (Docs. 9, 10).United States District Judge Bernard M. Jones referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5). For the reasons set forth below, the undersigned recommends that Petitioner's Amended 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 Grady County Sentence
Petitioner is a state inmate currently incarcerated at the Joseph Harp Correctional Center in Lexington, Oklahoma. (Doc. 9, at 1); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 186665). On September 11, 2002, Petitioner was convicted by a jury in Grady County District Court of one count of murder in the first degree. Grady County District Court, Case No. CF-2001-375. On October 29, 2002, Petitioner was sentenced to life without parole. Id. (See also Doc. 9, at 1). Petitioner appealed, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction and sentence on September 25, 2003. OCCA, Case No. F-2002-1346. (See also Doc. 9, at 2). Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days later, on December 24, 2003. See Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=grady&number=CF-2001-00375 (Docket Sheet) (last visited October 12, 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=appellate&number=F-2002-1346 (Docket Sheet) (last visited October 12, 2022).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On June 5, 2006, Petitioner filed an Application for Post-Conviction Relief with the Grady County District Court. Grady County District Court, Case No. CF-2001-375 (see footnote 3). The district court denied the Application the same day, and Petitioner did not appeal to the OCCA. Id.
On September 10, 2015, Petitioner filed an application with the OCCA for a writ of mandamus directing the Grady County District Court to rule upon a post-conviction application filed on July 7, 2015. OCCA, Case No. MA-2015-0802. Upon finding that such application had not been filed with the Grady County District Court, the OCCA denied Petitioner's application on October 29, 2015. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2015-802 (Docket Sheet) (last visited October 12, 2022).
On February 13, 2017, Petitioner filed another Application for Post-Conviction Relief with the Grady County District Court. Grady County District Court, Case No. CF-2001-375 (see footnote 3). On August 25, 2017, Petitioner filed a Supplemental Post-Conviction Application in Grady County District Court arguing that “the 10th Circuit Federal Appeals Court issued a ruling clarifying Okla. jurisdictional law, going retroactive back to 1866, holding no Okla. State court has jurisdiction to try a Defendant for any crime committed in Okla. involving an Indian, or that was committed inside an Indian reservation,” citing Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017). Grady County District Court, Case No. CF-2001-375 (see footnote 3) (Supplemental Post-Conviction Application dated Aug. 25, 2017). On April 5, 2018, Petitioner filed an application with the OCCA for a writ of mandamus directing the Grady County District Court to rule upon this supplemental post-conviction application. OCCA, Case No. MA-2018-0333. In the meantime, the Grady County District Court denied Petitioner's Application on June 18, 2018. Grady County District Court, Case No. CF-2001-375 (see footnote 3). The OCCA dismissed Petitioner's request as moot, finding that “the District Court fully adjudicated Petitioner's complaints regarding the pending matters in this case.” OCCA, Case No. MA-2018-0333 (see footnote 6) (Summary Order dated Aug. 21, 2018, at 2).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA- 2018-333 (Docket Sheet) (last visited October 12, 2022).
On November 30, 2020, Petitioner filed a Supplemental Post-Conviction Application in the Grady County District Court arguing, in part, that the district court did not have jurisdiction over his crime because the federal government has exclusive jurisdiction to prosecute crimes “involving an Indian” or occurring “inside an Indian reservation,” again invoking Murphy. Grady County District Court, Case No. CF-2001-375 (see footnote 3) (Supplemental Post-Conviction Application dated Nov. 30, 2020, at 1). The district court denied the Supplemental Application on September 21, 2021. (Doc. 1, at Ex. 7). Petitioner both appealed the denial to the OCCA and filed a Petition for Writ of Habeas Corpus with the Grady County District Court. (Doc. 1, at Exs. 5, 9).
While Petitioner's appeal from the denial of his Supplemental Application was pending before the OCCA, and before the OCCA's decision in Matloff v. Wallace, 2021 OK CR 21, the United States filed a criminal complaint in the United States District Court for the Western District of Oklahoma, charging Petitioner with “Murder in the First Degree within Indian country” for the crime that formed the basis of his 2002 Grady County conviction. United States v. Scott, WDOK Case No. 21-MJ-0194-STE (Doc. 1). On August 30, 2021, the United States moved to dismiss the complaint in reliance on the OCCA's holding in Matloff. Id. (Doc. 9). The court granted the motion and dismissed without prejudice the federal charge against Petitioner. Id. (Doc. 10). On January 7, 2022, Petitioner filed under this criminal case number a Petition for Writ of Habeas Corpus, a Motion for Writ of Habeas Corpus, and a Motion to Supplement Record. Id. (Docs. 11-13). The court struck these motions and directed Petitioner to pursue habeas relief to challenge his state court conviction through a proper habeas filing. Id. (Doc. 14). On July 29, 2021, Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Western District of Oklahoma, alleging that he did not have adequate access to law library resources, including federal case law, or adequate assistance with filing court documents at Joseph Harp Correctional Center. Scott v. United States, WDOK Case No. 21-CIV-0794-J (Doc. 1). The district court dismissed his Petition, and the Tenth Circuit affirmed the dismissal as seeking relief unavailable in a habeas action. Id. (Docs. 4, 13).
The OCCA affirmed the denial of Petitioner's Supplemental Application on December 7, 2021, finding:
Petitioner asserted he was entitled to relief pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). In State ex rel. Matloff v. Wallace, 2021 OK CR 21,
497 P.3d 686, this Court determined that the United States Supreme Court decision in McGirt, because it is a new procedural rule, is not retroactive and does not void final state convictions. See Matloff, 2021 OK CR 21, ¶¶ 2728, 40, 497 P.3d at 691-92, 694.
The conviction in this matter was final before the July 9, 2020 decision in McGirt, and the United States Supreme Court's holding in McGirt does not apply. Therefore, the District Court's order denying post-conviction relief is AFFIRMED.(Doc. 1, at Ex. 2, at 1-2); see also OCCA, Case No. PC-2021-1085.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC- 2021-1085 (Docket Sheet) (last visited October 12, 2022).
C. The Amended Petition
On July 18, 2022, Petitioner filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254, challenging his Grady County sentence. (Doc. 1). He filed an Amended Petition on September 7, 2022. (Doc. 9, at 17). He asserts that he is an enrolled member of the Muscogee (Creek) Nation and that his crime occurred in Grady County, Oklahoma, on the Chickasaw Nations Reservation. (Doc. 10, at 1). Based on these facts, he asserts Oklahoma did not have jurisdiction to prosecute him based on the United States Supreme Court's decision in McGirt. (Id. at 2-8), With regard to the timeliness of his Amended Petition, Petitioner argues that 28 U.S.C. § 2244(d) does not bar his action because (1) “Petitioner's conviction in state court is not ‘final' because it was void ab initio (from the beginning);” (2) his jurisdictional challenge can be raised at any time and is not subject to waiver; and (3) his Application for Post-Conviction Relief challenging jurisdiction was filed on November 30, 2020, less than a year after the decision in McGirt. (Doc. 9, at 14).
Petitioner certified that he placed his habeas petition in the mail to the court on July 18, 2022 (Doc. 1, at 9), 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)).
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)). Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days after the OCCA affirmed his conviction, on December 24, 2003. See Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020). Petitioner argues that his conviction “is not ‘final' because it was void ab initio (from the beginning).” (Doc. 9, at 14). However, the Tenth Circuit has previously rejected this argument. See Doak v. Nunn, No. 22-6066, 2022 WL 3452832, at *2 (10th Cir. Aug. 18, 2022) (“Second, Mr. Doak asserts that a criminal judgment entered by a court without jurisdiction cannot become ‘final' under 28 U.S.C. § 2244(d)(1)(A). But, as already noted, when a judgment becomes final depends only on when certain procedures have been completed.”).
The one-year statute of limitations began the day after Petitioner's conviction became final. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until December 27, 2004, 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); see also Fed.R.Civ.P. 6(a)(C).
Because Petitioner did not attempt to file any form of state post-conviction relief until June 5, 2006, approximately 18 months 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 July 18, 2022, is untimely under § 2244(d)(1)(A).
2. 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 decision in McGirt, however, does not provide Petitioner with additional time to file his habeas petition under § 2244(d)(1)(C) because it did not recognize a new constitutional right. Rather, in McGirt the Court addressed whether the Muscogee (Creek) Nation “remain[ed] an Indian reservation for purposes of federal criminal law,” Id. 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 remains untimely.
3. AEDPA's Statute of Limitations Applies to Petitioner's Claim That the State Courts Lacked Jurisdiction.
Petitioner contends “[a] jurisdictional challenge can be raised at any time.” (Doc. 9, at 14). In both federal and Oklahoma courts, subject-matter jurisdiction can be challenged at any time. See, e.g., United States v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.”); Wallace v. Oklahoma, 935 P.2d 366, 372, 1997 OK CR 18, ¶ 15 (“[I]ssues of subject matter jurisdiction are never waived ....”). But, Petitioner does not challenge this Court's subject-matter jurisdiction. Instead, he contends that AEDPA's statute of limitations does not apply because the state trial court lacked jurisdiction over his crime. Petitioner is incorrect. “‘As with any other habeas claim,' . . . § 2254 claims predicated on the convicting court's lack of jurisdiction are ‘subject to dismissal for untimeliness.'” Jones, 2021 WL 3854755, at *3 (quoting Morales v. Jones, 417 Fed.Appx. 746, 749 (10th Cir. 2011)); see also Cole v. Pettigrew, 2021 WL 1535364, at *2 n.4 (N.D. Okla. Apr. 19, 2021) (“Regardless of whether Cole 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.”). Because AEDPA's statute of limitations provides no exception for jurisdictional claims, the undersigned finds no merit in Petitioner's argument.
B. 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 v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner has not argued - much less established - that he diligently pursued his federal habeas claim or that extraordinary circumstances beyond his control prevented him from filing a timely federal habeas petition. Holland, 560 U.S. at 649.
Petitioner's only remaining path around the § 2244(d)(1)(A) deadline would be a viable actual innocence claim. “[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief,” such as an otherwise-untimely petition. McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Petitioner's claim that the state court lacked jurisdiction, unaccompanied by any new evidence, is insufficient to credibly show actual innocence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (An actual innocence claim “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 set forth above, the undersigned recommends that the Court DISMISS the Amended Petition (Doc. 9) with prejudice.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before November 2, 2022, under 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2). The undersigned also 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. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.