Opinion
CIV-23-147-HE
03-21-2023
CODY GRANT WILLIAMS, Petitioner, v. STEVEN HARPE, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. Section 636(b)(1)(B). The undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed with prejudice as procedurally barred from habeas review.
I. Background
On January 13, 2022, Petitioner was convicted, following guilty pleas, of Driving a Motor Vehicle Under the Influence of Alcohol Third and Subsequent, Driving with License Cancelled/Suspended/Revoked Second and Subsequent, Transporting Open Bottle or Container of Liquor, Operation of Motor Vehicle Without a Center High Mount Light. Doc. No. 1 at 1; Oklahoma Supreme Court Network, State v. Williams, District Court of Comanche County, Case No. CF-2018-196. The state court entered sentences for each charge and ordered that they run concurrently with each other, and concurrently with sentences issued in a previous criminal case. Id. Petitioner did not request to withdraw his guilty pleas, nor did he file a direct appeal.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF- 2018-196
On May 23, 2022, Petitioner filed an application for post-conviction relief asserting that under McGirt v. Oklahoma, __ U.S. __, 140 S.Ct. 2452 (2020), the state court did not have subject matter jurisdiction over his criminal proceeding. Doc. No. 1 at 2; Oklahoma Supreme Court Network, State v. Williams, District Court of Comanche County, Case No. CF-2018-196, supra. On May 26, 2022, the state court denied the application finding that, inter alia, Petitioner's ground for relief was procedurally barred because he could have raised the same issue on direct appeal but failed to do so. Doc. No. 1-1 at 1.
Petitioner appealed the state district court's ruling to the Oklahoma Court of Criminal Appeals (“OCCA”), which denied the same on December 5, 2022. Doc. No. 1-3. The OCCA ruled that, pursuant to Rule 5.2(C)(2) of the Rules of the Oklahoma Court of Criminal Appeals, Petitioner's appeal was procedurally barred because he failed to timely file the same. Id.
By this action, Petitioner again asserts that the state court did not have jurisdiction over his criminal proceedings based on McGirt. Doc. No. 1 at 5-9. Petitioner also raises ineffective assistance of trial counsel based on trial counsel's failure to raise this issue before the state court. Id. at 11-13. As explained below, Petitioner's grounds for relief are procedurally barred from federal habeas review.
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[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). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 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).
III. Ground One
Only under rare circumstances may a federal court provide habeas review on an issue the petitioner has procedurally defaulted in state court. See Smith v. Allbaugh, 921 F.3d 1261, 1267 (10th Cir. 2019) (“The procedural-default rule generally prevents a federal court from reviewing a habeas claim when the state court declined to consider the merits of that claim based ‘on independent and adequate state procedural grounds.'” (quoting Maples v. Thomas, 565 U.S. 266, 280 (2012)). As the Tenth Circuit has explained,
[W]e may not consider claims that have been ‘defaulted in state court on adequate and independent state procedural grounds'” absent the petitioner's demonstration of “‘cause for the default and actual prejudice as a result of the alleged violation of federal law, or [that] failure to consider the claims will result in a fundamental miscarriage of justice.'” Byrd, 645 F.3d at 1167 (quoting Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009)) ....Grant v. Royal, 886 F.3d 874, 889-90 (10th Cir. 2018). “‘A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision.' And the ground is adequate if it has been ‘applied evenhandedly in the vast majority of cases.'” Quintana v. Hansen, 733 Fed.Appx. 439, 443 (10th Cir. 2018) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)).
As noted, the OCCA ruled Petitioner's appeal was procedurally barred based on Rule 5.2(C)(2) because he failed to file it in a timely manner. The Tenth Circuit has held that Rule 5.2(C) is an adequate and independent state procedural bar. See Windsor v. Patton, 623 Fed.Appx. 943, 945-46 (10th Cir. 2015) (“We have previously held that a dismissal under Rule 5.2(C) is an adequate and independent state law ground.”) (citing Johnson v. Champion, 288 F.3d 1215, 1226-27 n.3 (10th Cir. 2002); Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998)); see also Branch v. Howard, 455 Fed.Appx. 848, 851 (10th Cir. 2012) (finding that claims, including claims of ineffective assistance of counsel, raised in a post-conviction appeal but dismissed by the OCCA as untimely under Rule 5.2(C) were procedurally barred); accord Laws v. Fatkin, 44 Fed.Appx. 366, 367 (10th Cir. 2002); Martin v. Gibson, 28 Fed.Appx. 866, 868 (10th Cir. 2001). Thus, Petitioner's claim is procedurally barred unless he can demonstrate cause and prejudice or that a miscarriage of justice will occur if the Court does not review it. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner does not offer any reason for his failure to timely file his appeal of the state district court's denial of post-conviction relief. If Petitioner has a basis to find cause and prejudice, he may present it in an objection to this Report and Recommendation.
Additionally, the fundamental miscarriage of justice exception to the procedural default rule “is a markedly narrow one, implicated only in extraordinary case[s] where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quotations omitted). See also Herrera v. Collins, 506 U.S. 390, 404 (1993) (“The fundamental miscarriage of justice exception is available only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” (quotations omitted)). “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar ....” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The Court's opinion in McQuiggin makes clear the limitations on its holding: “[T]enable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of [] new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Petitioner does not present new evidence indicating he did not commit the actions underlying his convictions or new evidence casting doubt on the same. Instead, he limits this ground for relief and arguments supporting the same solely to jurisdiction challenges.
Petitioner does not present a basis in his Petition to overcome the procedural default regarding his claim for relief because he does not present grounds to support cause and prejudice or a miscarriage of justice. Accordingly, the undersigned finds Petitioner's first ground for relief is barred from habeas review.
IV. Ineffective Assistance of Counsel
Petitioner also raises ineffective assistance of counsel based on trial counsel's failure to raise a jurisdictional challenge based on McGirt in his initial criminal proceedings. Petitioner did not raise this issue before the state courts. Based on his failure to properly present this challenge to the OCCA, the Court would generally dismiss the claim and provide Petitioner an opportunity to return to state court. However, because the basis for this claim was clearly known to Petitioner at the time of his post-conviction application and subsequent appeal, Oklahoma would deem the same claim waived and procedurally barred. King v. State, 29 P.3d 1089, 1090 (Okla. Crim. App. 2001) (“All claims which could have previously been raised [in the direct appeal or in a previous post-conviction proceeding] but were not are waived ....”). Accordingly, Petitioner has no prospect of obtaining relief in state court for this claim.
In situations such as this, federal courts may apply an anticipatory bar. Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007) (“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.” (quotations omitted)). Because Petitioner has no prospect of obtaining relief in state court for this claim, this Court should apply an anticipatory bar. Id. Further, the Tenth Circuit has affirmed the adequacy of the Oklahoma procedural bar as applied to claims that could have been, but were not, previously raised. Cannon v. Gibson, 259 F.3d 1253, 1266 (10th Cir. 2001) (citing Thomas v. Gibson, 218 F.3d 1213, 1221-22 (10thCir. 2000); Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000)).
Petitioner's claim is therefore procedurally barred unless he can demonstrate cause and prejudice or that a miscarriage of justice will occur if the Court does not review it. Coleman, 501 U.S. at 750. The undersigned previously addressed the merits of both cause and prejudice, as well as a miscarriage of justice argument based on Petitioner's assertions of actual innocence. See supra. Accordingly, the Court should deny this ground as barred from habeas review.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be dismissed with prejudice as procedurally barred. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 10th , 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.