Ii v. State Of Okla.

Decision Date29 July 2010
Docket NumberNo. PCD-2010-530.,PCD-2010-530.
Citation237 P.3d 795,2010 OK CR 16
PartiesDonald Ray WACKERLY, II, Petitioner, v. STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

OPINION TEXT STARTS HERE

James A. Drummond, Attorney at Law, Norman, OK, attorney for petitioner on appeal.

W.A. Drew Edmondson, Oklahoma Attorney General, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, attorneys for state on appeal.

OPINION DENYING SECOND APPLICATION FOR POST-CONVICTION RELIEF, MOTION FOR DISCOVERY, MOTION FOR EVIDENTIARY HEARING AND MOTION TO DEFER SCHEDULING OF EXECUTION DATE

A. JOHNSON, Vice-Presiding Judge.

¶ 1 Before the Court is Petitioner Donald Ray Wackerly's second application for post-conviction relief, motion for discovery, motion for evidentiary hearing and motion to defer scheduling of an execution date. A jury convicted Wackerly in 1998 in the District Court of Sequoyah County, Case No. CF-96-349, of the first degree murder of Pan Sayakhoummane. The jury assessed a sentence of death. 1 Since then Wackerly has challenged his Judgment and Sentence on direct appeal, 2 in collateral proceedings in this court, 3 and in habeas corpus proceedings in federal court. 4 All of these challenges have proven unsuccessful and the State of Oklahoma has asked this Court to set an execution date.

¶ 2 The Post-Conviction Procedure Act governs post-conviction proceedings in this State. 22 O.S.Supp.2006, §§ 1080-1089. Regarding capital cases, it provides in relevant part:

[I]f a subsequent application for post-conviction relief is filed after filing an original application, the Court of Criminal Appeals may not consider the merits of or grant relief based on the subsequent ... application unless:

a. the application contains claims and issues that have not been and could not have been presented previously in a timely original application or in a previously considered application filed under this section, because the legal basis for the claim was unavailable, or

b. (1) the application contains sufficient specific facts establishing that the current claims and issues have not and could not have been presented previously in a timely original application or in a previously considered application filed under this section, because the factual basis for the claim was unavailable as it was not ascertainable through the exercise of reasonable diligence on or before that date, and

(2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the alleged error, no reasonable fact finder would have found the applicant guilty of the underlying offense or would have rendered the penalty of death.

22 O.S.Supp.2006, § 1089(D)(8). Further, this Court's rules provide that [n]o subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.” Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2010).

¶ 3 Wackerly claims that the State of Oklahoma lacked jurisdiction to prosecute him for the murder of which he was convicted because the crime occurred on land that was under the exclusive jurisdiction of the United States. He also claims that prior trial counsel, appellate counsel, post-conviction counsel, and federal habeas counsel were all constitutionally ineffective for not discovering and raising this claim.

¶ 4 Ordinarily, this claim would be barred because the factual and legal bases upon which it is based were available and could have been presented in a timely original application. 22 O.S.Supp.2006, § 1089(D)(8). Furthermore, examination of the evidentiary materials submitted in support of Wackerly's application shows that the legal and factual bases of this claim were available much earlier than sixty days before the filing of the instant application for post-conviction relief. 5 Ordinarily, such an untimely filing would bar the current claim. Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2010). Nevertheless, we have recognized that “issues of subject matter jurisdiction are never waived and can therefore be raised on collateral appeal.” Wallace v. State, 1997 OK CR 18, ¶ 15, 935 P.2d 366, 372. Consequently, we address Wackerly's jurisdictional claim.

¶ 5 Wackerly contends that the murder for which he was convicted occurred on the bank of the Arkansas River, on property purchased by the United States for the W.D. Mayo Lock and Dam Project, which is operated by the Army Corps of Engineers. Wackerly argues that because the federal government owns the property on which the murder occurred, the murder occurred within the “special maritime and territorial jurisdiction of the United States,” as defined in 18 U.S.C. § 7(3). Therefore, according to Wackerly, the United States retains sole jurisdiction to prosecute this case. 6 ¶ 6 Article I, Section 8, Clause 17 of the United States Constitution gives Congress the right “to exercise exclusive Legislation over all places purchased by the United States with the consent of the legislature of the state where the place is located for the erection of forts, magazines, arsenals, dock-yards, and “other needful [b]uildings.” 7 State v. Cline, 1958 OK CR 21, ¶¶ 7-10, 322 P.2d 208, 212-13; United States v. Penn, 48 F. 669, 670 (C.C.E.D.Va.1880). The right of exclusive legislation is the same as exclusive jurisdiction. Surplus Trading Co. v. Cook, 281 U.S. 647, 652, 50 S.Ct. 455, 456, 74 L.Ed. 1091 (1930); Underhill v. State, 1925 OK CR 355, 31 Okl.Cr. 149, 237 P. 628 (syllabus); see also, United States v. Goings, 504 F.2d 809, 811 (8th Cir.1974); Curry v. State, 111 Tex.Crim. 264, 12 S.W.2d 796, 798 (Tex.Crim.App.1928); United States v. Wurtzbarger, 276 F. 753, 755 (D.Or.1921). Thus, in order for the United States to exercise exclusive jurisdiction to prosecute crimes committed on property purchased by it, the legislature of the state where the property is located must have given its explicit consent to cede jurisdiction. Cline, 1958 OK CR 21, ¶¶ 8-9, 322 P.2d at 212-13; see also United States v. Tucker, 122 F. 518, 520-21 (W.D.Ky.1903) (finding exclusive federal jurisdiction over land purchased by United States for dam and lock in Green River, but only on showing that Kentucky Legislature passed act ceding jurisdiction); Penn, 48 F. at 669-70 (finding no federal jurisdiction for prosecution of petty larceny at Arlington National Cemetery where United States purchased property for cemetery at tax sale, but Virginia never ceded jurisdiction). Otherwise, the state's jurisdiction remains intact and the United States holds the property as does any other owner. Underhill, 1925 OK CR 355, 31 Okl.Cr. at 153, 237 P. at 629; Penn, 48 F. at 670; see also Ryan v. State, 188 Wash. 115, 61 P.2d 1276, 1281 (1936) (interpreting Article I, Section 8, Clause 17 to mean that “when the land is acquired [by the United States] for a purpose not within that clause, in any manner other than by purchase with the consent of the state, then the United States holds the land just as any other proprietor does, except that the land may not be taxed by the state).

¶ 7 The Oklahoma Legislature has consented by statute to cede jurisdiction to the United States over lands purchased by the United States for the purposes enumerated in Article I, Section 8, Cl. 17, and for the additional purpose of “irrigation or drainage projects.” 80 O.S.2001, § 1. 8 Therefore, for the United States to exercise exclusive jurisdiction over the W.D. Mayo Lock and Dam Project, the property must have been purchased for use as a fort, magazine, arsenal, dock-yard, or irrigation or drainage project.

¶ 8 Exhibit 11 to Wackerly's application is a copy of what appears to be a Corps of Engineers document purporting to describe the status and purpose of the McClellan-Kerr Arkansas River Navigation System, including the W.D. Mayo Lock and Dam Project. According to this document, the purpose of the project is [f]lood control and navigation.” The document also states:

The project consists of bank stabilization and channel rectification as required for the stabilization of the river channel and for the establishment of a navigation channel with a minimum depth of 9 feet and a minimum width of 250 feet. The bank stabilization also protects the critical location on the right bank of the Arkansas River in the vicinity of Braden's Bend, Oklahoma, as authorized by the Flood Control Act of June 30, 1948, Public Law 80-858.

A reasonable reading of this document suggests that the McClellan-Kerr Arkansas River Navigation System, of which the W.D. Mayo Lock and Dam Project is a component part, is a system intended to control watershed drainage into the Arkansas River in order to maintain the river as a navigable channel. Assuming, without deciding, therefore, that the crime actually occurred on property owned by the United States that was part of the W.D. Mayo Lock and Dam project, and assuming further that the W.D. Mayo properties are part of a drainage project intended to maintain the Arkansas River as a navigable channel, as Wackerly asserts, it would seem that Oklahoma ceded jurisdiction over the property under the provisions of 80 O.S.2001, § 1. Nevertheless, for the reasons set out below, we find that the United States does not exercise exclusive jurisdiction over the property.

¶ 9 In the River and Harbor Act of 1894, now codified at Title 33 U.S.C. § 1, Congress delegated to the Secretary of the Army the duty to prescribe regulations and rules for:

the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property, or of operations of the United States in channel improvement,...

To continue reading

Request your trial
11 cases
  • Murphy v. Royal
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 9, 2017
    ...of subject matter jurisdiction are not waivable and can be raised for the first time in collateral proceedings); Wackerly v. State , 237 P.3d 795, 797 (Okla. Crim. App. 2010) (considering jurisdictional claim that crime occurred on federal land raised in prisoner's second application for po......
  • Murphy v. Royal
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 8, 2017
    ...of subject matter jurisdiction are not waivable and can be raised for the first time in collateral proceedings); Wackerly v. State, 237 P.3d 795, 797 (Okla. Crim. App. 2010) (considering jurisdictional claim that crime occurred on federal land raised in prisoner's second application for pos......
  • Bosse v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 11, 2021
    ...that the limitations of post-conviction or subsequent post-conviction statutes do not apply to claims of lack of jurisdiction. Wackerly v. State , 2010 OK CR 16, ¶ 4, 237 P.3d 795, 797 ; Wallace v. State , 1997 OK CR 18, ¶ 15, 935 P.2d 366, 372 ; see also Murphy v. State , 2005 OK CR 25, ¶¶......
  • Mitchell v. Nunn
    • United States
    • U.S. District Court — Northern District of Oklahoma
    • April 28, 2022
    ...9-6, Appl. 3. Finally, Mitchell noted that he had not raised this claim through a direct appeal, but he cited Wackerly v. State , 237 P.3d 795, 797 (Okla. Crim. App. 2010) for the proposition that a challenge to the trial court's jurisdiction can be raised at any time and cannot be waived. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT