Greene v. Nunn
| Decision Date | 06 June 2022 |
| Docket Number | Case No. 21-CV-0446-GKF-SH |
| Citation | 606 F.Supp.3d 1108 |
| Parties | Tony LaMonte GREENE, Petitioner, v. Scott NUNN, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Tony LaMonte Greene, Helena, OK, Pro Se.
Caroline Elizabeth Jane Hunt, Office of the Attorney General, Oklahoma City, OK, for Respondent.
Petitioner Tony LaMonte Greene, a state inmate appearing pro se ,1 brings this action, under 28 U.S.C. § 2254, to challenge his custody under the judgment entered against him in the District Court of Tulsa County, Case No. CF-2011-4734. Respondent Scott Nunn moves to dismiss Greene's petition for writ of habeas corpus, claiming relief is barred by 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations. Having considered Greene's petition (Dkt. 1), Nunn's motion to dismiss (Dkt. 7) and brief in support (Dkt. 8), and Greene's response briefs (Dkts. 9, 10),2 the Court finds and concludes that the statute of limitations bars relief as to the claims raised in the petition. The Court therefore grants Nunn's motion and dismisses Greene's petition.
Greene pleaded guilty, on March 12, 2012, to two counts of lewd molestation, and the trial court sentenced him to serve a 20-year prison sentence followed by a 5-year prison sentence. Dkt. 1, at 1; Dkt. 8-1, at 6.3 Greene did not move to withdraw his plea and did not seek direct review of his judgment by filing a certiorari appeal in the Oklahoma Court of Criminal Appeals (OCCA). Dkt. 1, at 2; Dkt. 8-1, at 6-9; Dkt. 8-2, at 10. Greene filed a motion for judicial review in state district court on December 28, 2012, and the trial court denied that motion on January 11, 2013. Dkt. 8-1, at 9.
Over three years later, Greene began seeking postconviction relief. First, on August 22, 2016, he filed an application for postconviction relief (APCR) claiming (1) the trial court lacked jurisdiction to impose a term of three-years' post-imprisonment supervision, (2) his trial counsel performed deficiently and prejudicially, in violation of his Sixth Amendment right to counsel, (3) the lack of state sentencing guidelines resulted in a sentence that violates due process, and (4) his post-sentencing efforts at rehabilitation entitled him to a sentencing modification. Dkt. 8-2, at 1, 9. The state district court denied Greene's APCR on August 1, 2017, and Greene filed a postconviction appeal in the OCCA. Dkt. 8-1, at 16; Dkt. 8-2, at 8-14. In his postconviction appellate brief, Greene identified four "questions presented." Dkt. 8-2, at 3. As relevant to this habeas proceeding, Green asked, "Does the State of Oklahoma have jurisdiction to prosecute an Indian accused of committing the offense of lewd molestation in Indian Country?" Dkt. 8-2, at 3, 6-7. Greene alleged he is an "Indian" within the meaning of 18 U.S.C. §§ 1151 - 1153 and that he committed his crimes in "Indian Country" because "all parts" of Tulsa County are part of a reservation. Dkt. 8-2, at 6. With his appellate brief, Greene submitted a signed affidavit, dated August 28, 2017, averring that he is 1/16 Cherokee, and a map identifying "Tribal Jurisdictions in Oklahoma." Dkt. 8-2, at 15-17. The OCCA affirmed the denial of postconviction relief on March 21, 2018. Dkt. 8-3, at 2.
Five days later, on March 26, 2018, Greene filed a second APCR presenting one claim: "Trial Court lacked subject matter jurisdiction because [Greene] is an Indian and the crime occurred in Indian Country." Dkt. 8-4, at 1, 8. The state district court denied that application on April 24, 2018, reasoning that Greene's claim was "premature" because it was "based solely" on the United States Court of Appeals for the Tenth Circuit's holding in Murphy v. Royal , 875 F.3d 896 (10th Cir. 2017) (" Murphy I "), aff'd sub nom. Sharp v. Murphy , ––– U.S. ––––, 140 S. Ct. 2412, 207 L.Ed.2d 1043 (2020) (" Murphy II "), which, at that time, had been stayed pending review by the United States Supreme Court. Dkt. 8-4, at 8-9. Greene filed a postconviction appeal, asserting, in part, that the state district court erred in failing to consider his claim on the merits. Dkt. 8-4, at 3-4. The OCCA affirmed the denial of postconviction relief on November 7, 2018. Dkt. 8-5, at 2.
On July 9, 2020, the Supreme Court issued two decisions relevant to Greene's claim that the trial court lacked jurisdiction over his prosecution— McGirt v. Oklahoma , ––– U.S. ––––, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020), and Murphy II . McGirt reached the Supreme Court via a petition for writ of certiorari filed by an Oklahoma state prisoner who sought review of the OCCA's decision denying his application for postconviction relief. See McGirt v. Oklahoma , ––– U.S. ––––, 140 S. Ct. 659, 205 L.Ed.2d 417 (Dec. 13, 2019) (). Like the habeas petitioner in Murphy I , the prisoner in McGirt claimed that because he is Native American, the State lacked jurisdiction to prosecute him for serious offenses he committed within the boundaries of the Muscogee (Creek) Nation Reservation. McGirt , 140 S. Ct. at 2459 ; Murphy I , 875 F.3d at 928. The McGirt Court held that because Congress did not disestablish the Muscogee (Creek) Nation Reservation the land within the historical boundaries of that reservation is "Indian country," as defined in 18 U.S.C. § 1151(a), and, as a result, the federal government has exclusive jurisdiction to prosecute certain crimes committed within those boundaries if those crimes are committed by or against Native Americans. McGirt , 140 S. Ct. at 2468, 2479-80. Relying on McGirt , the Supreme Court in Murphy II summarily affirmed the Tenth Circuit's 2017 decision, in Murphy I , that had reached the same conclusion. Murphy II , 140 S. Ct. at 2412.
On July 17, 2020, eight days after the Supreme Court issued its decisions in McGirt and Murphy II , Greene filed a third APCR, reasserting his claim that the trial court lacked jurisdiction to prosecute him for crimes he committed in Indian country. Dkt. 8-6, at 1, 4. Following a hearing on February 4, 2021, the state district court denied Greene's application in an order filed March 1, 2021. Dkt. 8-1, at 22; Dkt. 8-6, at 10-16. Greene filed a postconviction appeal, and the OCCA issued an order on October 1, 2021, declining jurisdiction based on its determination that Greene did not properly perfect the appeal. Dkt. 8-7, at 2.
Greene filed the instant federal habeas petition on October 11, 2021,4 asserting two claims. First, he claims the "Trial Court lacked jurisdiction to prosecute [him] because provisions of treaties between Muscogee Nation and United States reserve jurisdiction to Tribe or U.S." Dkt. 1, at 5. In support of this claim, he alleges his crimes occurred within the boundaries of the Muscogee (Creek) Nation Reservation and that unidentified treaties required that he be prosecuted by in tribal or federal court. Dkt. 1, at 5. Second, he claims the "Trial Court lacked jurisdiction because [he] is an Indian whose crimes occur[red] in Indian Country." Dkt. 1, at 7. As to this claim, he alleges he is "a descendant of a Cherokee Indian, 1/16 blood quantum" and he "was convicted of crimes committed within the boundaries of the Muscogee (Creek) Nation Reservation." Dkt. 1, at 7. Greene alleges these claims "did not ripen until July 9, 2020." Dkt. 1, at 6-7. In the section of the petition that asks Greene to explain why his claims are not barred by the one-year statute of limitations, he asserts he filed the petition "within [one] year of factual predicate to claim and lack of jurisdiction claim (equitable tolling)." Dkt. 1, at 13.
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year statute of limitations for state prisoners seeking federal collateral review of a state-court judgment under 28 U.S.C. § 2254. The limitation period "run[s] from the latest of" one of four dates:
28 U.S.C. § 2244(d)(1).
Regardless of which provision applies, the one-year limitation period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2). An application for postconviction relief or other collateral review is "properly filed," for purposes of statutory tolling, "when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings." Artuz v. Bennett , 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). But a properly filed application for postconviction relief or other collateral review tolls the limitation period only if it is filed before the one-year limitation period expires. Clark v. Oklahoma , 468 F.3d 711, 714 (10th Cir. 2006). Because the AEDPA's one-year limitation period is not jurisdictional, federal courts may, in "extraordinary" circumstances, toll the limitation period for equitable reasons, Holland v. Florida , 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), or may, in "rare" cases, excuse noncompliance with the statute of limitations if the petitioner makes "a credible showing of actual innocence," McQuiggin v. Perkins , 569 U.S. 383, 392, 133 S.Ct. 1924, 185 L.Ed.2d...
To continue reading
Request your trial