Opinion
CIV-21-1106-PRW
06-28-2022
THOMAS ROYE WAHPEKECHE, Petitioner, v. LUKE PETTIGREW, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Thomas Roye Wahpekeche, a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Brief in Support, challenging the constitutionality of his state court conviction. (ECF Nos. 1 & 2). Respondent has filed his Response to Petition for Writ of Habeas Corpus (ECF No. 14) and Mr. Wahpekeche has filed a Reply. (ECF No. 23). For the reasons set forth below, it is recommended that the Court DENY the Petition.
I. PROCEDURAL BACKGROUND
In Case No. CF-2013-236, a Cleveland County jury convicted Petitioner of: (1) four counts of first-degree rape (victim under age 14); (2) two counts of forcible sodomy; (3) three counts of lewd or indecent acts to a child under 16; (4) one count of rape by instrumentation; and (4) one count of performing a lewd act in the presence of a minor. (ECF Nos. 1:1; 14-1:1). Petitioner filed a direct appeal, arguing, in part, that the trial court lacked jurisdiction over the criminal matter based on the fact that the alleged crimes occurred in “Indian Country” as that term is defined under the Major Crimes Act (MCA).(ECF No. 14-2:43-46). The Oklahoma Court of Criminal Appeals (OCCA) denied the appeal and affirmed the conviction. (ECF No. 14-1). Beyond Petitioner's direct appeal, his pathway through state court is convoluted to say the least.
The Major Crimes Act provides, in relevant part, that when certain enumerated crimes, including an assault against an individual under 16 years old, are committed by an Indian “within Indian country,” he shall be subject exclusively to federal, rather than state, jurisdiction. 18 U.S.C. § 1153(a).
On February 16, 2018, Petitioner filed an Application for Post-Conviction Relief in the Cleveland County District Court. (ECF No. 14-6). In the Application, Petitioner again challenged the trial court's jurisdiction, expounding his argument that the alleged crimes had occurred in “Indian Country” for purposes of the MCA. (ECF No. 14-6). Specifically, Mr. Wahpekeche argued ineffective assistance of appellate counsel for failure to argue a lack of jurisdiction in the trial court/that the crimes allegedly occurred in “Indian Country” based on:
• An 1867 treaty between the federal government and Pottawatomie Nation,
• The Organic Act of 1890,
• The Enabling Act,
• The Oklahoma Constitution, and
• The fact that the title to the residence where the alleged crimes occurred was held by the Absentee Shawnee Tribal Housing Authority, rendering it an Indian allotment under the MCA.
(ECF No. 14-6).
On June 18, 2018, the district court denied post-conviction relief, finding that the issues were procedurally barred under a theory of res judicata-the issues had been previously raised and denied on direct appeal. (ECF No. 14-9). Petitioner filed an appeal, but on September 19, 2018, the OCCA dismissed the appeal as untimely. (ECF No. 1412). As a result, on October 3, 2018, Mr. Wahpekeche filed an Application for Out-of Time Post-Conviction Appeal. (ECF No. 14-13). On July 31, 2020, the Cleveland County District Court recommended Petitioner be granted an appeal out-of-time and on September 11, 2020, the OCCA granted the same. (ECF Nos. 14-23 & 14-29). On October 16, 2020, in OCCA Case No. PC-2020-717, Petitioner appealed the Cleveland County District Court's denial of his Application for Post-Conviction Relief. (ECF No. 14-30). On appeal, Petitioner presented additional theories that the alleged crime occurred in “Indian Country,” arguing that:
To be sure, an inmate's first opportunity to assert a claim of ineffective assistance of appellate counsel is in a post-conviction proceeding, which technically renders the district court's finding of res judicata incorrect. However, when considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, the court looks to the merits of the omitted issue. See Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). Here, the underlying/omitted issue involved whether the site of the alleged crime qualified as “Indian Country” for purposes of the MCA. See ECF No. 14-6. And, as stated by the district court in denying post-conviction relief, this issue had been previously decided on direct appeal. See ECF No. 14-1.
While waiting for a ruling on his application to file an out-of-time appeal, Mr. Wahpekeche filed a Motion to Dismiss based on lack of jurisdiction in the Cleveland County District Court, which the court construed as a second Application for Post-Conviction Relief. See ECF Nos. 14-17 & 14-29. The district court denied relief, but Petitioner did not thereafter appeal. (ECF No. 14-23).
In an attempt to obtain a ruling on his application to file an out-of-time post-conviction appeal, Mr. Wahpekeche filed a Motion to Dismiss and Petition for Writ of Mandamus. See ECF Nos. 1417 & 14-20. The Cleveland County District Court denied the Motion to Dismiss, after construing the pleading as a second Application for Post-Conviction Relief. (ECF No. 14-23). In the same order, the Cleveland County District Court recommended Petitioner be granted a post-conviction appeal out-of-time. (ECF No. 14-23). As a result of the District Court's ruling, the OCCA dismissed the mandamus petition as moot. (ECF No. 14-24).
In an attempt to obtain a ruling on his post-conviction appeal, Mr. Wahpekeche filed two Petitions for Mandamus in the Oklahoma Supreme Court. See ECF Nos. 14-31 & 14-32. The Oklahoma Supreme Court: (1) dismissed the first Petition for lack of jurisdiction and (2) transferred the second Petition to the OCCA where it was docketed as MA-2021-581 and ruled on in the same Order denying post-conviction relief. (ECF Nos. 14-33, 14-34, 14-35, 14-36).
• The land was considered an Indian reservation for purposes of the MCA, 18 U.S.C. § 1151(a) and
• The Court should have applied the multi-factor test set forth in Solem v. Bartlett, 465 U.S 463 (1984) to determine whether the residence at issue qualified as “Indian Country” for purposes of the MCA.
(ECF No. 14-30). Petitioner also argued that because the land was “Indian Country,” the Cleveland Country Sherriff's Office did not have jurisdiction to conduct an “out-ofjurisdiction” search warrant on his residence, which resulted in evidence being seized. (ECF No. 14-30). On September 30, 2021, the OCCA affirmed the Cleveland County District Court's June 18, 2018 denial of Petitioner's Application for Post-Conviction Relief. (ECF No. 14-36).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) governs this Court's power to grant habeas corpus relief. Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir. 2010). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
For claims adjudicated on the merits, “this [C]ourt may grant ... habeas [relief] only if the [OCCA's] decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' ” Hanson v. Sherrod, 797 F.3d 810, 814 (10th Cir. 2015) (citation omitted). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be ‘difficult to meet.' ” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). The deference embodied in § 2254(d) “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington, 562 F.3d at 102-103 (citation omitted).
On review of such claims, this Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson v. Sherrod, 797 F.3d at 824. “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]” Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of clearly established federal law. See Owens, 792 F.3d at 1242.
“A state court's decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.' ” Id. (citations omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Id. (citation omitted).
The “ ‘unreasonable application' prong requires [the petitioner to prove] that the state court ‘identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.' ” Id. (citations and internal brackets omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.' ” Id. (citations omitted). So, to qualify for habeas relief on this prong, a petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1242-43 (citation omitted). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In sum, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported ... the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 101-02. Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Id. at 102.
Finally, a federal habeas court must “accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' ” Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). In other words, when the state appellate court makes a factual finding, the Court presumes the determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id. at 2199-2200; see also 28 U.S.C. § 2254(e)(1).
If the state appellate court has not addressed the merits of a claim, the Court exercises its independent judgment. See Littlejohn v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013) (“For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our 'independent judgment[.]' ” (citation omitted). “And, even in the setting where we lack a state court merits determination, '[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.' ” Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (citation omitted).
III. PETITIONER'S HABEAS CLAIMS
On November 18, 2021, Mr. Wahpekeche filed a habeas Petition under 28 U.S.C. § 2254, seeking relief on the following eleven grounds:
Ground One: Petitioner's state conviction was in violation of Article 6, Clause 2 of the United States Constitution due to a treaty in 1867 which exempted
the Citizen Potawatomi Nation (CPN) reservation (where the crimes allegedly occurred) from state prosecutorial authority;
Ground Two: His state conviction was obtained in violation of the Major Crimes Act (MCA) which mandates exclusive jurisdiction in federal court under 18 U.S.C. § 1153 for certain enumerated crimes which occurred on “Indian land;”
Ground Three: Petitioner's state conviction was obtained in violation of the Enabling Act, the Organic Act, and the Oklahoma Constitution which specifically disavow jurisdiction by the State of Oklahoma over “Indian land,” where the crimes allegedly occurred;
Ground Four: A violation of the Indian Child Welfare Act (ICWA) occurred during the questioning of Indian children by the State without a tribal representative present;
Ground Five: Petitioner's state conviction was obtained in violation of various “Federal Judicial Decisions regarding Indian Country,” namely, that the trial court failed to apply the “Solem test” to determine whether the CPN reservation had been disestablished;
Ground Six: Ineffective assistance of trial counsel for failing to challenge the trial court's jurisdiction based on the aforementioned arguments;
Ground Seven: The Cleveland County Sherriff's Office interviewed Petitioner after ignoring his request for counsel, in violation of Mr. Wahpekeche's 14th Amendment rights;
Ground Eight: The Cleveland County Sherriff's Office conducted an “out-ofjurisdiction” search on Petitioner's home, which was in the exclusive jurisdiction of the CPN reservation, in violation of Mr. Wahpekeche's 14th Amendment rights;
Ground Nine: The evidence obtained from the illegal search warrant was not stored properly, in violation of rules pertaining to the chain of custody of evidence, in violation of Mr. Wahpekeche's 14th Amendment rights;
Ground Ten: The OCCA improperly applied State ex rel. Matloff v. Wallace, 2021 OK CR 21, _____ P.3d _____, to bar Petitioner's jurisdictional challenges
when he appealed the district court's denial of his First Application for PostConviction Relief; and
Ground Eleven: The State filed a “Rape Shield Act” application with the district court which prevented Petitioner from presenting evidence related to “prior unsubstantiated claims by the alleged victim, and issues of behavior directly related to case filed against Petitioner.”
Petitioner actually cites Article I, Section 6 of the Unites States Constitution as the constitutional provision allegedly violated, but he quotes Article 6, Clause 2, which states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const. art, I, cl. 2.
See ECF No. 1:11-20, 22-25, 27-30, 32-34, 36-38, 40-42, 44-47, 49-51; ECF No. 2:2, 3, 4, 8, 10, 12, 13, 16, 26; ECF No. 23:37-57.
IV. GROUNDS ONE, TWO, THREE, FIVE, AND EIGHT
Grounds One, Two, Three, Five, and Eight all involve challenges to the trial court's jurisdiction over Petitioner's state criminal case. See ECF No. 1:11-17, 22-25, 27-30, 36 38 & ECF No. 2:2, 3, 4, 8, 10, 12, 13, 16, 26; ECF No. 23:37-57. Petitioner alleges:
Ground One: His state conviction was in violation of Article 6, Clause 2 of the United States Constitution due to a treaty in 1867 which exempted the Citizen Potawatomi Nation (CPN) reservation (where the crimes allegedly occurred) from state prosecutorial authority;
Ground Two: His state conviction was obtained in violation of the Major Crimes Act (MCA) which mandates exclusive jurisdiction in federal court under 18 U.S.C. § 1153 for certain enumerated crimes which occurred on “Indian land;”
Ground Three: His state conviction was obtained in violation of the Enabling
Act, the Organic Act and the Oklahoma Constitution which specifically disavow jurisdiction by the State of Oklahoma over “Indian land,” where the crimes allegedly occurred;
Ground Five: His state conviction was obtained in violation of various “Federal Judicial Decisions regarding Indian Country,” namely, that the trial court failed to apply the “Solem test” to determine whether the CPN had been disestablished; and
Ground Eight: The Cleveland County Sherriff's Office conducted an “out-ofjurisdiction” search on Petitioner's home, which was in the exclusive jurisdiction of the CPN reservation, in violation of Mr. Wahpekeche's 14th Amendment rights.
(ECF Nos. 1:11-17, 22-25, 36-38; 2:2, 3, 4, 8, 10, 12, 13, 16, 26; 23:37-57).
These arguments were presented to the OCCA in Petitioner's post-conviction appeal out-of-time. See ECF No. 14-30. The OCCA: (1) lumped the entirety of Petitioner's arguments under a sole theory-a challenge to the state court's jurisdiction pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) and (2) affirmed the district court's denial of post-conviction relief, finding that McGirt was not retroactive and did not void final state convictions. See ECF No. 14-36. In doing so, the Court stated:
In McGirt, the United States Supreme Court held that Oklahoma lacked jurisdiction to prosecute the criminal defendant in that case because the defendant was Native American and he committed his crime within the boundaries of the Muscogee Creek Nation Reservation, a reservation that the McGirt Court determined was "Indian country” for purposes of the MCA, because Congress never disestablished the reservation. McGirt, 140 S.Ct. at 2459-60, 2474.
Petitioner, pro se, appealed to this Court from an order of the District Court of Cleveland County in Case No. CF-2013-236 denying his request for post-conviction relief pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). In State ex rel. Matloff v. Wallace, 2021 OK CR 21, _____ P.3d _____, this Court determined that the United Stated 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, ¶¶ 27-28, 40.
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 trial court's denial of post-conviction relief is AFFIRMED.
(ECF No. 14-36:1-2).
This Court's standard of review hinges on whether the OCCA had adjudicated the merits of Petitioner's claims. See supra. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. But the petitioner may rebut the presumption that the state court adjudicated the petitioner's claim on the merits.” Smith v. Sharp, 935 F.3d 1064, 1072 (10th Cir. 2019).
In an attempt to rebut the presumption, Petitioner states:
[T]he Oklahoma Court of Criminal Appeals erred in applying the court's decision in state ex rel. Ma[tl]off v. Wallace 2021 OK CR 21 P.3d to the case at bar, Petitioner did not rely on the McGirt decision as the basis for relief. Petitioner raised original arguements [sic] that were independent of McGirt. Petitioner was neither a co-defendant to McGirt/Ma[tl]off, nor utilized either for a collateral attack.
(ECF No. 23:2) (emphasis added).
For two reasons, the Court should conclude that Mr. Wahpekeche met his burden to rebut the presumption that the OCCA had adjudicated the post-conviction appeal claims on the merits. First, the issue in McGirt was whether the Creek reservation had been disestablished by Congress or was still considered “Indian Country” for purposes of the MCA. As noted by Petitioner, his arguments concerned whether the land in question qualified as “Indian Country” for purposes of the MCA under theories separate and apart from those argued in McGirt. This point is underscored by two facts: (1) Mr. Wahpekeche had presented his arguments years before McGirt was decided and (2) Petitioner insists that the theories are distinct.
Second, based on the OCCA's rationale for denying relief-that McGirt announced a new procedural rule that was not retroactive to void state convictions-indicates that the OCCA did not adjudicate Mr. Wahpekeche's claims on the merits. The presumption that a claim was adjudicated on the merits “may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Harrington v. Richter, 562 U.S. 86, at 99-100 (2011). Here, instead of addressing the merits of Petitioner's jurisdictional arguments (e.g., whether the 1867 treaty with the Pottawatomie merited a finding that the land in question was “Indian Country”), the OCCA instead offered “[an]other explanation”-that being the nonretroactivity of McGirt. Based on the forgoing, the Court should conclude that the OCCA did not address the merits of the Grounds One, Two, Three, Five, and Eight, triggering a de novo review.
A. Basis of Claims
In Grounds One, Two, and Three, Petitioner alleges that the land in question where the alleged crimes occurred is considered “Indian Country” for purposes of exclusive federal jurisdiction under the MCA. See ECF Nos. 1, 2, 23, passim. In Ground Five, Petitioner argues that the court erred in failing to apply a multi-factor test set forth in Solem v. Bartlett (the Solem test) to determine whether the land in question was “Indian Country” for purposes of the MCA. See id. And in Ground Eight, Petitioner argues that the Cleveland County Sheriff's Office conducted an illegal “out-of-jurisdiction” search warrant on his residence because federal authorities maintained exclusive jurisdiction over the premises. See id. The basis of Petitioner's claims boils down to a single question-was the land in question considered “Indian Country” under the MCA which would have triggered exclusive federal jurisdiction? Petitioner answers this question affirmatively, stating that the land in question is both part of the Citizen Pottawatomie Nation reservation and was an Indian allotment to the Citizen Pottawatomie Nation and the Absentee Shawnee tribes. (ECF Nos. 1, 2, 23, passim). Petitioner's theory is two-fold. First, Mr. Wahpekeche cites various pieces of evidence-maps, land deeds, etc.-to establish that the land in question qualifies as “Indian Country” as that term is defined in the MCA. And second, Petitioner relies on various laws-the Oklahoma Constitution, the Organic Act, the Enabling Act, the Supremacy Clause, and an 1867 treaty between the federal government and the Pottawatomie tribe-which require exclusive federal jurisdiction over anything deemed “Indian Country.” The Court should reject Petitioner's arguments and find that habeas relief is not warranted on Grounds One, Two, Three, Five, and Eight.
B. State Court Factual Findings
As stated, all of Petitioner's jurisdictional arguments are based on his theory that the alleged crimes occurred in the boundaries of the historical CPN reservation and/or an allotment which was given to the CPN and Absentee Shawnee tribes. See supra. This issue was litigated extensively in state court, with repeated findings that jurisdiction was properly exercised by the State of Oklahoma.
On the fourth day of trial, outside the presence of the jury, the trial court heard testimony on the issue. Proceedings had on January 29th of 2015, Vol. IV, State of Oklahoma v. Wahpekeche, Case No. CF-2013-236 (Cleveland Co. Dist. Ct. Jan. 28, 2015) (Trial TR. Vol. IV). At that hearing, Chief of Police of the Absentee Shawnee Trial Police Department Brad Jackson testified on behalf of the State. According to Chief Jackson, he exercised tribal jurisdiction over “federal trust land” in Cleveland County, but the address of where the alleged crimes occurred was outside that jurisdiction. Trial TR. Vol. IV 6-8. Mr. Jackson also testified that the Absentee Shawnee Tribal Housing Authority's ownership of the land where the alleged crimes occurred did not mandate tribal jurisdiction. Id. at 8-13. Finally, Chief Jackson testified that the land in question had never been classified by the government as a “dependent Indian community”-a fact which would also trigger tribal jurisdiction. Id. at 13-20.
Ultimately, the trial court stated:
Based upon the evidence I have received, it appears that this is not land explicitly set aside for Indian use by Congress, or its designee, and that it's not federally superintendent, In addition, the title showing that it is housing authority land up until the time it passed title to Mr. Wahpekeche, it appears that it is under a 1057 state agency; and, therefore, state jurisdiction would apply. This Court is going to find that jurisdiction is proper in Cleveland County, and that the state jurisdiction prevails and it is not a federally preempted issue.
Id. at 24-25.
Following his conviction, on June 15, 2015, the trial court held a hearing on Mr. Wahpekeche's sentencing, Motion to Dismiss for Lack of Jurisdiction, and Motion for New Trial. Proceedings had on June 15th of 2015, State of Oklahoma v. Wahpekeche, Case No. CF-2013-236 (Cleveland Co. Dist. Ct. June 15, 2015). At that hearing, defense counsel challenged Chief Jackson's testimony, stating that he had not been authorized to testify and that “[t]he only way to truly be sure of whether or not this Court is truly vested with subject matter jurisdiction over these charges is an abstract and the proper credentialed witnesses to present that abstract to the Court.” Id. at 6. The matter was continued to December 21, 2015.
At the December 21st hearing, the State relied on the evidence they had presented at the hearing at trial-a map from the Bureau of Indian Affairs which showed that the land in question was not under federal jurisdiction and the testimony from Chief Jackson regarding lack of jurisdiction. Proceedings had on December 21st of 2015, State of Oklahoma v. Wahpekeche, Case No. CF-2013-236 (Cleveland Co. Dist. Ct. Dec. 21, 2015) at 6-7. The State also pointed out that the land itself was owned by the Absentee Shawnee Housing Authority and sold to Mr. Wahpekeche, but before that, it was bought from the county at auction, deeming it land not held by the federal government, but within the jurisdiction of Cleveland County, State of Oklahoma. Id. at 10.
As evidentiary support for the jurisdictional argument, the defense presented:
1. A Special Warranty Deed which showed the transfer of the land in question from the Absentee Shawnee Tribal Housing Authority to Mr. Wahpekeche;
2. Proof that the land in question was located within the historical boundaries of the CPN reservation;
3. A warranty deed showing that the land was sold to John Wilson on July 22, 1912, which did not identify that the restrictions to alienation were ever lifted;
4. A letter from President Benjamin Harrison, dated January 5, 1915 which showed that the land in issue was originally an allotment to John Sloan, a member of the Absentee Shawnee tribe; and
5. A map issued by the State of Oklahoma through the Oklahoma Department of Transportation and the Office of the Tribal Liaison which recognized the land at issue was within the jurisdiction of the Absentee Shawnee Tribe and the CPN.
(ECF No. 14-38:6-56). Following argument and the presentation of evidence, the trial court overruled the Motion to Dismiss and concluded that jurisdiction over Petitioner's residence was proper by the State of Oklahoma, Cleveland County. Proceedings had on December 21st of 2015, State of Oklahoma v. Wahpekeche, Case No. CF-2013-236 (Cleveland Co. Dist. Ct. Dec. 21, 2015) at 12.
C. Habeas Relief is not Warranted for Grounds One, Two, Three, Five, and Eight
In his habeas Petition, Brief in Support, and Reply brief, Petitioner re-argues the jurisdictional issue which has already been litigated in state court, without offering any additional argument or evidence regarding why the land in question is considered “Indian Country.” In fact, in his Reply Brief and in support of his jurisdictional argument before this court, Mr. Wahpekeche re-asserts his reliance on the “complete land file” which he had previously provided to the Cleveland County District Court in support of the Motion to Dismiss. See ECF No. 23:12.
“[E]ven in the setting where we lack a state court merits determination, '[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.' ” Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (citation omitted). Here, Mr. Wahpekeche has not rebutted the presumption of correctness afforded to the state-court findings on the jurisdictional issue because he has presented no additional information or argument in support of his claims. As a result, the Court should conclude that the land in question is not subject to exclusive federal jurisdiction as “Indian Country” which would trigger the MCA (Grounds One, Two, Three, and Five) and, as a result, the search warrant for Petitioner's residence was not “out-of-jurisdiction” in violation of Petitioner's Due Process rights (Ground Eight).
V. GROUNDS FOUR, SIX, SEVEN, NINE, ELEVEN
The Court should conclude that Grounds Four, Six, Seven, Nine, and Eleven are procedurally barred from federal habeas review.
A. Exhaustion as a Preliminary Consideration
The exhaustion doctrine, a matter of comity which has long been a part of habeas corpus jurisprudence, requires the court to consider in the first instance whether petitioner has presented his grounds for relief to the OCCA. "[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); see Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) ("A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
"Exhaustion requires that the claim be 'fairly presented' to the state court, which means that the petitioner has raised the 'substance' of the federal claim in state court.” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (citation omitted). This means "a federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
B. Procedural Bar/Anticipatory Procedural Bar
Beyond the issue of exhaustion, the Court must also examine how the OCCA adjudicated each of a petitioner's grounds for relief, i.e., whether the OCCA addressed the merits of a petitioner's grounds or declined to consider them based on a state procedural rule. "It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.' ” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. at 729). “The doctrine applies to bar federal habeas [relief] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. at 729-30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) ("When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them.”). “Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted).
C. Grounds Four, Six, Seven, Nine, and Eleven Have not Been Exhausted and are Subject to an Anticipatory Procedural Bar
The Court should find Grounds Four, Six, Seven, Nine, and Eleven procedurally barred.
1. Ground Four
In Ground Four, Petitioner alleges that his conviction was invalid based on a violation of the Indian Child Welfare Act (ICWA). (ECF No. 1:18-20). According to Mr. Wahpekeche, the ICWA requires the presence of a tribal representative during questioning of a Native American child in a situation where the child could possibly be removed from the home, and this precaution was not taken in the instant case. (ECF No. 1:18-20). Petitioner claims that he exhausted this claim by raising it in his Direct Appeal; his Application for Post-Conviction Relief; a Motion to Dismiss, “PC-2020-0541,” and a “bar complaint.” (ECF No. 1:19, 21). Petitioner is wrong.
An examination of Petitioner's Direct Appeal brief reveals no discussion/argument regarding the ICWA he raises in Ground Four. See ECF No. 14-2. And although Mr. Wahpekeche raised the issue in his initial appeal of the Cleveland County District Court's denial of his Application for Post-Conviction Relief, See ECF No. 14-11, that appeal was dismissed because it was untimely, with no ruling from the OCCA. See ECF No. 14-12. When Petitioner was finally granted an appeal out of time, Petitioner did not raise the issue in his Petition in Error. See ECF No. 14-30. Mr. Wahpekeche states that he raised the issue in the “Motion to Dismiss,” which the Cleveland County District Court construed as a Second Application for Post-Conviction Relief, but a review of that pleading belies Petitioner's contention. See ECF No. 14-17. But even if he had, Petitioner never appealed the district court's denial of relief, so the issue was never ruled on by the OCCA, a necessary requisite for exhaustion. Finally, Petitioner states that he raised the issue in a “bar complaint,” but such action is insufficient to satisfy the exhaustion requirement which requires a presentation of claims to the state's highest court-in this case, the OCCA. See supra.
Because Ground Four has not been presented to the OCCA for adjudication, the Court should conclude that it is unexhausted. To exhaust Ground Four, Petitioner would have to return to state court and file an additional post-conviction application. See 22 O.S. § 1086. However, if Petitioner did so, the OCCA would likely find that the claim was procedurally barred under a theory of waiver. See 22 O.S. § 1086 ("Any ground finally adjudicated or not so raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application[ ]").
The Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground" barring habeas review. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (finding Oklahoma's doctrine of waiver to be independent and adequate). Under similar circumstances, the Tenth Circuit Court of Appeals has applied an anticipatory procedural bar to prevent habeas review. See Grant v. Royal, 886 F.3d 874, 893 (10th Cir. 2018) ("if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal.").
As a result, Mr. Wahpekeche can only overcome the anticipatory procedural bar if he is able to demonstrate: (1) “cause and prejudice" for the default, or (2) that a fundamental miscarriage of justice has occurred. See Coleman v. Thompson, 501 U.S. at 750. “Cause" under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him, with the result being prejudice to the petitioner. Coleman v. Thompson, 501 U.S. at 753. To demonstrate a fundamental miscarriage of justice, a petitioner must make a “‘credible' showing of actual innocence." Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). That is, he must “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." Id. at 1232 (citation omitted). “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (citation omitted). Here, Mr. Wahpekeche offers no “cause and prejudice” to excuse the default, nor does he make any argument that a fundamental miscarriage of justice had occurred. See ECF Nos. 1, 2, 23. As a result, the Court should find that Ground Four is procedurally barred from consideration on habeas review. See Grant v. Royal, 886 F.3d at 902 ('“Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim.”).
2. Ground Six
In Ground Six, Petitioner argues ineffective assistance of trial counsel for failing to challenge the trial court's jurisdiction based on the jurisdictional arguments asserted in Grounds One, Two, Three, Five, and Eight, aforementioned arguments. But nowhere in his state court pleadings-his direct appeal and/or post-conviction application and appeal-did Petitioner raise this issue. See ECF Nos. 14-2, 14-6, or 14-30. If Mr. Wahpekeche were to return to state court to exhaust the issue, it would likely be deemed “waived.” As a result, the Court may apply an anticipatory procedural default to bar federal habeas review. Because Petitioner does not argue “cause and prejudice” or a ”fundamental miscarriage of justice,” he cannot overcome the procedural bar.
See ECF Nos. 1, 2, 23.
3. Ground Seven
In Ground Seven, Petitioner contends that his Fourteenth Amendment rights were violated when Cleveland County Sheriff's Office employees: (1) began questioning him without reading his Miranda rights and (2) ignored his request for an attorney. (ECF No. 1:32-34). Petitioner claims that he exhausted this claim by raising it in his Direct Appeal, a Motion to Dismiss, “PC-2020-0541,” and a “bar complaint.” (ECF No. 1:33, 35). Petitioner is wrong. Nowhere in the Direct Appeal brief is the issue raised. See ECF No. 14-2. Even so, Petitioner raised the issue as part of an ineffective assistance of appellate counsel claim in Petitioner's initial post-conviction appeal to the Cleveland County District Court. See ECF No. 14-6:19. To exhaust the issue, even indirectly through an ineffective assistance of counsel claim, Mr. Wahpekeche was required to raise the issue on appeal following the district court's denial. Although Petitioner did raise the issue the issue in his initial appeal, See ECF No. 14-11, that appeal was dismissed as untimely. See ECF No. 14-12. When Mr. Wahpekeche was finally granted an appeal out of time, however, he did not raise Ground Seven in the Petition in Error. See ECF No. 14-30. And contrary to Petitioner's claims, the issue was not raised in the Motion to Dismiss, See ECF No. 14-17, or the Petition in Error filed in PC-2020-541. See ECF No. 14-26. Finally, raising the issue in a bar complaint is insufficient for exhaustion purposes, as discussed. See supra.
Because Ground Seven has not been presented to the OCCA for adjudication, the Court should conclude that it is unexhausted. Like Ground Five, the Court should also conclude that Ground Seven is subject to an anticipatory procedural bar based on the theory of waiver if Mr. Wahpekeche were to return to state court in an attempt to exhaust the claim. See supra. Petitioner can overcome the anticipatory procedural bar if he is able to demonstrate “cause and prejudice” for the default, or that a fundamental miscarriage of justice has occurred. See supra. However, in this case, Mr. Wahpekeche offers no cause and prejudice to excuse the default, nor does he make any argument that a fundamental miscarriage of justice had occurred. See ECF Nos. 1, 2, 23. As a result, the Court should find that Ground Seven is procedurally barred from consideration on habeas review. See supra, Grant
4. Ground Nine
In Ground Nine, Petitioner alleges a violation of the 14th Amendment because the State could not establish a proper chain of custody for physical evidence which was obtained following a search and seizure at Petitioner's home. (ECF No. 1:40-42). Petitioner claims that he raised this issue on Direct Appeal, the Motion to Dismiss, the initial and out-of-time appeals from the Cleveland County District Court's denial of postconviction relief, a “Motion for reconsideration,” and “numerous” writs of mandamus. (ECF No. 1:41, 43). The Could should reject Petitioner's exhaustion arguments.
First, he did not raise the issue on Direct Appeal, or in either the initial or out-oftime-appeal granted following the Cleveland County District Court's denial of postconviction relief. See ECF Nos. 14-2, 14-6, 14-30. Second, in an attempt to obtain rulings on his first post-conviction application and Motion to Dismiss (which the Cleveland County District Court construed as a second post-conviction application), Mr. Wapakeche filed three petitions for mandamus, See 14-20, 14-31 & 14-32. But he did not raise Ground Nine in any of the petitions, nor did the OCCA issue any substantive findings when ruling on the same. See ECF No. 14-24, 14-33, 14-34. If Mr. Wahpekeche were to return to state court to properly exhaust the issue, it would likely be deemed waived. See supra. Because the theory of waiver is considered “independent” and “adequate,” and Mr. Wahpekeche is unable to demonstrate cause and prejudice or a fundamental miscarriage of justice will occur absent a consideration of the claim, the Court should find Ground Nine procedurally barred under the theory of “anticipatory procedural default.”
See ECF Nos. 1, 2, 23.
5. Ground Eleven
In Ground Eleven, Petitioner argues a violation of the 14th Amendment because the State filed a “[Rape] Shield Act” application with the trial court which prevented Petitioner “from bringing forth documentation of prior 'unsubstantiated' claims by alleged victim and issue of behavior directly related to [the] case.” (ECF No. 1:49-50). Petitioner claims that he raised this issue on Direct Appeal, the Motion to Dismiss, the initial and out-of-time appeals from the Cleveland County District Court's denial of post-conviction relief, and a “bar complaint.” (ECF No. 1:41, 43). The Could should disagree and find Ground Eleven unexhausted.
Although Petitioner raised a somewhat related issue on Direct Appeal, the argument there was different enough from the issue as Petitioner presents it in the habeas Petition, that the Court could not find that Ground Eleven had been “fairly presented” to the OCCA for purposes of exhaustion. On Direct Appeal, Mr. Wahpekeche argued that his trial counsel was ineffective for failing to file an application/notice with the trial court which would allow the introduction of evidence related to the alleged victim as an exception to the “Rape Shield Act.” (ECF No. 14-2:28-32). But in his habeas Petition, Mr. Wahpekeche challenged actions by the State, rather than his own attorney. See ECF No. 1:49-50).
The Tenth Circuit Court of Appeals has held that a petitioner “cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court.” Bland, 459 F.3d at 1011. That is, there is no fair presentation if the claim before the state court was only “somewhat similar” to the claim pressed in the habeas petition. Duncan v. Henry, 513 U.S. 364, 366 (1995); see also Bland, 459 F.3d at 1012 (finding failure to exhaust “[b]ecause presentation of a 'somewhat similar' claim is insufficient to 'fairly present' a federal claim”). Indeed, “mere similarity of claims is insufficient to exhaust.” Id. And the assertion of a general claim before the state court is insufficient to exhaust a more specific claim asserted for habeas relief. See Gray v. Netherand, 518 U.S. 152, 163 (1996) ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the 'substance' of such a claim to a state court.”); see also Thomas v. Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000) (holding petitioner's “generalized” state-court ineffective-assistance claim was insufficient to exhaust his later, more specific federal habeas claim). As a result, the Court should conclude that Petitioner did not exhaust Ground Eleven by presenting a related claim on Direct Appeal.
Petitioner's claim that he raised the issue in a bar complaint is insufficient for purposes of exhaustion, see supra, and Mr. Wahpekeche's claims that he presented the issue in the Motion to Dismiss, the initial and out-of-time appeals from the Cleveland County District Court's denial of post-conviction relief are simply untrue. See ECF Nos. 14-6, 14-17, 14-30. If Mr. Wahpekeche were to return to state court to properly exhaust Ground Eleven, it would likely be deemed waived. See supra. Because the theory of waiver is considered “independent” and “adequate,” and Mr. Wahpekeche is unable to demonstrate cause and prejudice or a fundamental miscarriage of justice will occur absent a consideration of the claim, the Court should find Ground Eleven procedurally barred under the theory of anticipatory procedural default.
See ECF Nos. 1, 2, 23.
VI. GROUND TEN
In Ground Ten, Petitioner claims that The OCCA improperly applied State ex rel. Matloff v. Wallace, 2021 OK CR 21, ____ P.3d ____, to bar Petitioner's jurisdictional challenges when he appealed the district court's denial of his First Application for PostConviction Relief. (ECF No. 1:44-47). But because Ground Ten essentially presents a collateral challenge to the OCCA's decision on Petitioner's post-conviction appeal, the Court should conclude that this Ground is not cognizable and no habeas relief is warranted. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (“because the constitutional error [Petitioner] raises focuses only on the State's post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim”); Mooney v. Albaugh, No. 15-CV-0197-TCK-PJC, 2018 WL 4855213, at *8 (N.D. Okla. Oct. 5, 2018) ("a collateral attack on the OCCA's decision denying his request for an out-of-time appeal or other post-conviction relief, ... fails to state a cognizable habeas claim.”).
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DENIED.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by July 15, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).