Opinion
CIV-21-1193-F
02-24-2022
FRANKIE DEAN WINTERHALTER, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United States District Judge Stephen P. Friot has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Court DISMISS the Petition as untimely.
I. PROCEDURAL BACKGROUND
On June 16, 2011, in Payne County District Court Case No. CF-2010-400, a jury convicted Petitioner of: (1) use of a motor vehicle to discharge a firearm after four previous convictions and (2) burglary in the second degree after four previous convictions. See Verdict, State of Oklahoma v. Winterhalter, Case No. CF-2010-400 (Payne Co. Dist. Ct. June 16, 2011). Petitioner appealed and on October 26, 2012, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. See State Court Docket Sheet, Winterhalter v. State of Oklahoma, Case No. F-2011-867 (Okla. Ct. Crim. App. Oct. 26, 2012).
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).
On May 12, 2014, Mr. Winterhalter filed an Application for Post-Conviction Relief in the Payne County District Court, and that court denied relief on December 10, 2014. See Order Denying Post-Conviction Relief, Winterhalter v. State of Oklahoma, Case No. CF-2010-400 (Payne Co. Dist. Ct. Dec. 10, 2014). On January 22, 2015, the OCCA declined jurisdiction over Petitioner's appeal of the post-conviction application. See State Court Docket Sheet, Winterhalter v. State of Oklahoma, Case No. PC-2015-39 (Okla. Ct. Crim. App. Jan. 22, 2015).
On March 1, 2021, Mr. Winterhalter filed a second Application for Post-Conviction Relief in the Payne County District Court, alleging that the trial court lacked jurisdiction over his crime in light of McGirt v. Oklahoma, __ U.S. __, 140 S.Ct. 2452 (2020), because he is a member of the Otoe-Missouria Nation Tribe and the crime occurred in Indian Country. See ECF No. 1-1; Application for Post-Conviction Relief, Winterhalter v. State of Oklahoma, Case No. CF-2010-400 (Payne Co. Dist. Ct. Mar. 1, 2021). The Payne County District Court denied relief and the OCCA affirmed the denial on November 30, 2021. (ECF No. 1-1). On December 22, 2021, Mr. Winterhalter filed the instant habeas Petition, presenting two grounds for relief, both of which allege the Payne County District Court lacked jurisdiction over his criminal case pursuant to McGirt. (ECF No. 1:5-7).
II. SCREENING REQUIREMENT
District courts must review habeas petitions promptly 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 Section 2254 Cases. Additionally, “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). However, “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present her position by filing an objection to the Report and Recommendation. Further, when raising the 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 or by dismissing the petition as time barred.” Day, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a § 2254 habeas petition sua sponte only if the petition is clearly untimely on its face. Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
III. DISMISSAL OF THE PETITION
In his two grounds for habeas relief, Petitioner argues that the trial court lacked jurisdiction over his state criminal case pursuant to McGirt. The Court should dismiss the Petition, with prejudice, as untimely.
A. AEDPA Limitations Period
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year 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.28 U.S.C. § 2244(d)(1)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner has suggested facts which would implicate subsection (C), arguing that he was prevented from pursuing a McGirt challenge until the issue had been decided. See ECF No. 1:5. The Court should conclude: (1) that the Petition is untimely based on the date the conviction became final under § 2244(d)(1)(A) and (2) § 2244(d)(1)(C) does not apply to extend the conviction's finality date.
1. The Petition is Untimely Under 28 U.S.C. § 2244(d)(1)(A)
Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Because Petitioner did not seek review in the United States Supreme Court, his conviction became final on January 24, 2013-90 days following the OCCA's October 26, 2012 affirmance of Mr. Winterhalter's conviction. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, without tolling, Petitioner's statute of limitations to file a habeas petition expired on January 24, 2014. But Mr. Winterhalter filed the Petition on December 22, 2021, nearly eight years after the limitations period had expired. (ECF No. 1:1). Thus, under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
2. 28 U.S.C. § 2244(d)(1)(C) is not Applicable
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.” But because McGirt did not recognize a new constitutional right, the provision does not apply. McGirt revolved around a longstanding rule that “[s]tate courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.' ” McGirt, 140 S.Ct. at 2459 (citing Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993)). This is so because the Major Crimes Act “provides that, within ‘the Indian country,' ‘[a]ny Indian who commits' certain enumerated offenses ‘against the person or property of another Indian or any other person' ‘shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.' ” Id. (quoting 18 U.S.C. § 1153(a)). “Indian Country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” 18 U.S.C. § 1151(a). Thus, the relevant question for the Supreme Court was “whether the land . . . treaties promised [the Creek Nation] remain[ed] an Indian reservation for purposes of federal criminal law.” McGirt, 140 S.Ct. at 2459.
To answer that question, the Court examined various treaties between the United States government and the Muscogee (Creek) Nation and statutes governing the Muscogee (Creek) Nation and its territory. See Id. at 2460-68. Indeed, the Court only looked to Acts of Congress to answer that question because the Court previously held that “ ‘only Congress can divest a reservation of its land and diminish its boundaries.' ” Id. at 2462 (quoting Solem v. Bartlett, 465 U.S. 463, 470 (1984)). The Court determined that the Muscogee (Creek) Nation's reservation continued to exist despite federal allotment policy in the early twentieth century because the “Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.” Id. at 2464 (citing Mattz v. Arnett, 412 U.S. 481, 497 (1973); Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356-58, (1962); Nebraska v. Parker, 577 U.S. 481, 489 (2016)). The Court determined that while the federal government engaged in other policy decisions negatively impacting the sovereignty of the Muscogee (Creek) Nation, “there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.” Id. at 2468.
Although Mr. Winterhalter argues otherwise, McGirt 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, ” a non-constitutional issue. Id. at 2459. 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. Petti grew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, No. 18-CV-477-CVE-JFJ, 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.”); Sanders v. Pettigrew, No. CIV-20-350-RAW-KEW, 2021 WL 3291792, at *5 (E.D. Okla. Aug. 2, 2021) (concluding that McGir t “did not break any new ground” or “recognize a new constitutional right, much less a retroactive one”); accord with Berry v. Braggs, No. 19-CV-706-GKF-FHM, 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, the Court should find that § 2244(d)(1)(C) does not apply in this case. See Donahue v. Harding, No. CIV-21-183, 2021 WL 4711680, at *1 (W.D. Okla. Sept. 8, 2021) (concluding that in a McGirt challenge, § 2244(d)(1)(C) would not apply to extend conviction finality date because McGir t did not recognize a new constitutional right).
(ECF No. 1:13).
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.
Relatedly, the Tenth Circuit has addressed McGirt in a different context and expressed doubt that the decision presented a new rule of constitutional law. See In re Morgan, No. 20-6123 (10th Cir. Sept. 18, 2020) (order denying authorization to file a second or successive § 2254 habeas petition). The Tenth Circuit went on to conclude that “even if McGirt did present a new rule of constitutional law, ” “the Supreme Court has not held that McGirt is retroactive, ” and “the only way the Supreme Court could make a rule retroactively applicable is through a holding to that effect.” Id. (alterations and internal quotation marks omitted) (citing 28 U.S.C. § 2244(b)(2)(A)). Jones, 2021 WL 3854755, at *3, n.1.
B. Statutory Tolling
The AEDPA limitations period is tolled pending adjudication of a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim. See 28 U.S.C. § 2244(d)(2). On May 12, 2014, and March 1, 2021, Mr. Winterhalter filed Applications for Post-Conviction Relief. See supra. But because the one-year limitations period had already expired at the time of filing, the Applications for Post-Conviction did not provide 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, the Court should conclude that the Petition is not rendered timely through application of 28 U.S.C. § 2244(d)(2).
C. Equitable Tolling
The AEDPA limitations period may be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an extraordinary circumstance stood in the petitioner's way and prevented timely filing. See Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances are extraordinary, equitable tolling is only available when the petitioner has been diligent in the pursuit of his habeas claims. See Ho land, 631 U.S. at 653. Under this standard, the petitioner bears a “‘strong burden to show specific facts.'” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted). Here, liberally construing the Petition, Mr. Winterhalter argues that he is entitled to equitable tolling because “jurisdiction can be raised and continue to be raised until my hostage takers related me to my tribal nation or Fed. gov.” (ECF No. 1:13). But the Tenth Circuit Court of Appeals has rejected this argument. See Morales v. Jones, 417 Fed.Appx. 746, 749 (10th Cir. 2011) (unpublished) (finding no legal support for habeas petitioner's assertion that “subject matter jurisdiction can never be waived and therefore [the petitioner] can never be barred from raising” a claim that the trial court lacked subject-matter jurisdiction and stating, “[a]s with any other habeas claim, [a claim that the trial court lacked subject-matter jurisdiction] is subject to dismissal for untimeliness”). As a result, the Court should find that Mr. Winterhalter is not entitled to equitable tolling.
D. Actual Innocence Exception
“[A] credible showing of actual innocence” based on newly discovered evidence “may allow a prisoner to pursue his constitutional claims” as to his conviction, under an exception to 28 U.S.C. § 2244(d)(1)-established for the purpose of preventing a miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Successful actual-innocence claims are rare due to the demanding evidentiary requirements for such claims. See Id. at 383, 392, 401; House v. Bell, 547 U.S. 518, 538 (2006). “[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.' ” House v. Be l
, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord McQuiggin v. Perkins, 569 U.S. at 399 (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims must be based on “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Here, Mr. Winterhalter has made no allegation that he is actually innocent, nor does he indicate the presence of any “new” evidence pertaining to the same. As a result, the Court should conclude that the “actual innocence” exception does not apply.
E. Summary
Under § 2244(d)(1)(A), Petitioner's conviction became final on January 24, 2013 and the one-year habeas limitations expired on January 24, 2014. Section 2244(d)(1)(C) would not apply and Mr. Winterhalter is not entitled to any equitable tolling because she has failed to demonstrate, with specificity, why he was prevented from filing a timely petition. Finally, Petitioner is not entitled to any period of tolling under the “actual innocence” exception. Because Petitioner waited until December 22, 2021 to file his McGirt challenge, the Court should dismiss it as untimely.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court dismiss the Petition (ECF No. 1) as untimely.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 14, 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).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED.