Caldwell v. Dowling
| Docket Number | CIV-22-340-JD |
| Decision Date | 23 June 2022 |
| Parties | JIMMY CALDWELL, Petitioner, v. JANET DOWLING, Warden, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
REPORT AND RECOMMENDATION
Petitioner Jimmy Caldwell, proceeding pro se, seeks habeas corpus relief from his state conviction and sentence under 28 U.S.C. § 2254. Doc. 1.[1] United States District Judge Jodi W Dishman referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B) (C). Doc. 3.
Petitioner pleaded no contest to one count of child sexual abuse before Pottawatomie County District Court. State v Caldwell, No. CF-2003-411, Docket Entry dated July 14, 2004, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&n umber=CF-2003-00411&cmid=15709 (last visited June 8, 2022) (Caldwell).[2] The state district court entered a judgment of conviction on July 14, 2004, and Petitioner was sentenced to fifty years' imprisonment. Doc. 1, at 1. Petitioner did not appeal his conviction and sentence. Id. at 1-2. On September 8, 2020, he applied for post-conviction relief from the Pottawatomie County District Court. Id. at 3. The state district court denied post-conviction relief on November 2, 2020, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed on September 14, 2021. Doc. 1, Atts. 1 (district court order), 2 (OCCA order). He then filed the present motion for habeas corpus relief on March 31, 2022.[3] For the reasons below, the undersigned recommends dismissal of the petition in its entirety.
Petitioner brings two related grounds for relief. He first claims the OCCA unreasonably denied his post-conviction claim that the state lacked subject matter jurisdiction to convict him because he established before the OCCA “that he was Native American, charged with an offense within Indian Country, and charged with an offense that falls under the federal Major Crimes Act, 18 U.S.C. § 1153(A).” Doc. 1, at 5. Petitioner next claims that the OCCA unreasonably denied his jurisdictional claim on the ground that the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), does not apply retroactively to finalized convictions. Id. at 8; see also Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021). He argues the OCCA “was required to . . . refer Petitioner's legal proceedings to tribal or federal court” because McGirt merely explained existing jurisdictional doctrine, under which “Petitioner's conviction was never finalized because the State of Oklahoma never had subject matter jurisdiction” over “Natives committing major crimes in Indian Country.” Id. at 10-11. The undersigned will not reach the merits of these claims because, as explained below, Petitioner's habeas petition was filed out of time and Petitioner is not entitled to equitable tolling.
AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
Id. It also 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. § 2244(d)(2). A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only “in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) () (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)); see also Holland v. Florida, 560 U.S. 631, 645 (2010) ( that “§ 2244(d) is subject to equitable tolling in appropriate cases”).
Petitioner argues he is “within his one-year time-limit.” Doc. 1, at 14. Petitioner styles his claims as challenges of the OCCA's September 14, 2021 order affirming the state trial court's denial of post-conviction relief. However, as explained more thoroughly below, Petitioner's AEDPA limitations period started when his conviction was finalized, see 28 U.S.C. § 2244(d)(1), not the date that post-conviction relief was denied. Petitioner's deadline to file his habeas petition was July 25, 2005.
Unless a petitioner shows otherwise, the limitations period typically runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). The state court entered a judgment and sentence against Petitioner on July 14, 2004, and Petitioner did not appeal. Doc. 1, at 1-2. Under Oklahoma law, a conviction arising from a plea of no contest that is not appealed becomes final ten days after entry of judgment and sentence. See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, OKLA. STAT. tit. 22, ch. 18, App. (ten days from entry of judgment and sentence to appeal conviction arising from plea of no contest); see also Canady v. Bryant, 779 Fed.Appx. 528, 529 (10th Cir. 2019). Petitioner's conviction was therefore finalized on July 24, 2004.[4] The one-year limitations period begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (). Therefore, Petitioner's statutory year to file a habeas petition began on July 25, 2004, and expired on July 25, 2005.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). An application for post-conviction relief in state court “‘remains pending' ‘until the application has achieved final resolution through the State's postconviction procedures,'” that is, when the Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).
Petitioner filed his application for post-conviction relief in Pottawatomie County District Court on September 8, 2020, fifteen years after his statutory year expired. Doc. 1, at 3. Because Petitioner applied for post-conviction relief after his statutory year to file for habeas relief had already expired, that application did not toll the AEDPA limitations period. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) ().
The Supreme Court's McGirt decision did not trigger a later start date for Petitioner's statutory year under either § 2244(d)(1)(C) or § 2244(d)(1)(D), and the OCCA reasonably denied Petitioner's claim on that basis.
Under § 2244(d)(1)(C), the one-year limitation period begins to run on “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if [1] the right has been newly recognized by the Supreme Court and [2] made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). The McGirt Court determined that because Congress did not disestablish the Muscogee (Creek) Nation Reservation, the land within the boundaries of that reservation is “Indian country,” as defined in 18 U.S.C. § 1151(a), and Native Americans who commit major crimes, as defined in 18 U.S.C. § 1153(a), within the boundaries of the Muscogee (Creek) Nation Reservation are subject to prosecution in federal court rather than state court. 140 S.Ct. at 2459-60, 2474-78.
Petitioner argues the OCCA unreasonably determined that McGirt does not apply retroactively to already-finalized convictions because “[t]he State of Oklahoma was fully aware that the Supreme Court was not telling the State anything new in McGirt.” Doc. 1, at 10. But for habeas purposes, this Court and those in neighboring districts have rejected the proposition that the date of the McGirt decision should be used as the...
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