Opinion
CIV-22-17-HE
07-11-2022
KE'LAN D. SMILEY, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Ke'Lan D. Smiley (“Petitioner”), a state prisoner appearing pro se, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 7). For the reasons set forth below, the undersigned recommends that Petitioner's 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 Comanche County Sentence
Petitioner is a state inmate currently incarcerated at the James Crabtree Correctional Center in Helena, Oklahoma. (Doc. 1, at 1); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 378483). On August 10, 2000, Petitioner was convicted of murder in the first degree. Comanche County District Court, Case No. CF-1999-354. (See also Doc. 1, at 1). The court sentenced Petitioner to life imprisonment without parole. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF -1999-354 (Docket Sheet) (last visited July 8, 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).
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (“OCCA”), claiming “ineffective assistance of counsel.” (Doc. 1, at 2). See also OCCA, Case. No. F-2000-1074. The OCCA affirmed Petitioner's conviction on January 8, 2002. (Id.) Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days later, on April 8, 2002. See Jenkins v. Crow, 820 Fed.Appx. 773, 77475 (10th Cir. 2020).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=2000-1074 (Docket Sheet) (last visited July 8, 2022).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On November 12, 2002, Petitioner filed an Application for Post-Conviction Relief before the Comanche County District Court, arguing “ineffective assistance of counsel.” (Doc. 1, at 3). See also Comanche County District Court, Case No. CF-1999-354 (see footnote 3). The state district court denied Petitioner's Application on December 5, 2002. (Id.) Petitioner appealed, and the OCCA dismissed the appeal on February 18, 2003. OCCA, Case No. PC-2003-114.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2003-114 (Docket Sheet) (last visited July 8, 2022).
C. The Petition
On December 27, 2021, Petitioner filed the instant action, asserting three grounds for relief. (Doc. 1, at 5-8). In Ground One, Petitioner alleges that “Oklahoma lacked jurisdiction” over his crime because he “ha[s] some Indian Blood” and his “alleged crime was within . . . Indian Country.” (Id. at 5). In Ground Two, Petitioner claims ineffective assistance of counsel. (Id. at 7). In Ground Three, Petitioner alleges violation of his right to a fair and speedy trial. (Id. at 8). Regarding the timeliness of his Petition, Petitioner argues that “subject matter jurisdiction . . . cannot be waived” and thus “the time for 1-year period of limitation has been surmounted and this petition for habeas relief is well within timeliness.” (Id. at 10-11) (emphasis omitted).
Petitioner certified that he placed his habeas petition in the mail to the court on December 27, 2021 (Doc. 1, at 15), 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's conviction became final on April 8, 2002. Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020). The one-year statute of limitations began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus, Petitioner had until April 9, 2003, 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).
Petitioner's one-year limitation period was tolled by his Application for PostConviction Relief, from its filing in Comanche County on November 12, 2002, until February 18, 2003, when the OCCA dismissed the appeal. See 28 U.S.C. § 2244(d)(2). Petitioner therefore had 148 days, or until July 16, 2003, to file his habeas petition. However, the Petition in this matter was filed on December 27, 2021. Thus, Petitioner's habeas action is untimely under § 2244(d)(1)(A).
Petitioner's attempts to challenge the jurisdiction of the state after the limitations period had already expired 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.”).
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.” Petitioner's argument that the state lacks jurisdiction over his crimes apparently (although not explicitly) relies on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). But the McGirt decision 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,” McGirt, 140 S.Ct. 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 is untimely.
3. AEDPA's Statute of Limitations Applies to Petitioner's Claim That the State Court Lacked Jurisdiction.
Petitioner argues that “subject matter jurisdiction . . . cannot be waived” and thus “the time for 1-year period of limitation has been surmounted and this petition for habeas relief is well within timeliness.” (Doc. 1, at 10-11) (emphasis omitted). 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 AEDPA's statute of limitations does not apply because the state trial court lacked jurisdiction over his claim. 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 does not allege and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding 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”) (citation omitted). Nor does Petitioner argue he is actually innocent of the crimes at issue. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding that to present a credible claim of actual innocence “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 discussed above, the court recommends that the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
The court advises Petitioner of his right to object to this Report and Recommendation by August 1, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court further advises Petitioner that failure to make timely objection to this report and recommendation waives his right to appellate review of both factual and legal issues 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 the captioned matter.