Mitchell v. Nunn

Decision Date28 April 2022
Docket NumberCase No. 21-CV-0442-GKF-CDL
Citation601 F.Supp.3d 1076
Parties Kendall Dean MITCHELL, Petitioner, v. Scott NUNN, Respondent.
CourtU.S. District Court — Northern District of Oklahoma

Kendall Dean Mitchell, Lexington, OK, Pro Se.

Keeley Laine Miller, Office of the Attorney General, Oklahoma City, OK, for Respondent.

OPINION AND ORDER

GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE

Before the Court is Respondent Scott Nunn's motion (Dkt. 8) to dismiss as untimely the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. 1) filed by Petitioner Kendall Dean Mitchell, a state inmate appearing pro se.1 Having reviewed the petition, the dismissal motion, Nunn's brief in support of the motion (Dkt. 9) and Mitchell's response (Dkt. 10) in opposition to the motion, the Court finds and concludes that the petition is untimely. The Court therefore grants Nunn's motion and dismisses the petition, with prejudice, as barred by 28 U.S.C. § 2244(d)(1) ’s one-year statute of limitations.

I. Background

Mitchell brings this action to challenge the judgment entered against him on April 26, 1989, in the District Court of Washington County, Case No. CRF-1988-295, after he pleaded guilty to committing first-degree murder. Dkt. 1, Pet. 1; Dkt. 9-2, J. and Sentence 1.2 Mitchell did not move to withdraw his plea or perfect a certiorari appeal in the Oklahoma Court of Criminal Appeals (OCCA) to obtain direct review of his judgment. Dkt. 9-7, Order (May 24, 2019) 1. Mitchell unsuccessfully sought postconviction relief in 1994, alleging he received ineffective assistance of counsel and that his plea was not knowing and voluntary. Dkt. 9-1, Docket Sheet 3 (Dist. Ct. Order Nov. 7, 2018).3

Decades later, on March 17, 2017, Mitchell filed a petition for writ of habeas corpus, in the District Court of Alfalfa County, alleging, in part, that he was illegally restrained because the "Washington County District Court did not have subject matter jurisdiction in the case of a crime committed by an Indian in Indian Count[r]y." Dkt. 9-3, State Habeas Pet. 1, 4. The Alfalfa County District Court denied the petition on August 3, 2017, concluding that Mitchell must pursue his jurisdictional claim through an application for postconviction relief filed in the Washington County District Court. Dkt. 9-4, Order (Aug. 3, 2017) 1-3. The OCCA agreed with that conclusion. Dkt. 9-5, Order (Mar. 16, 2018) 1-2.

Mitchell then filed an application for postconviction relief in the Washington County District Court on March 26, 2018, asserting his challenge to the trial court's criminal jurisdiction. Dkt. 9-6, Appl. 1. Mitchell alleged that he is a member of the Cherokee Nation, he committed the murder two miles northeast of Copan, Oklahoma and within the boundaries of the Cherokee Nation Reservation, and "the Cherokee Nation [R]eservation has not been disestablished or diminished since the boundaries were set in the 1866 Treaty of Washington, July 19, 1866, 14 Stat. 799." Dkt. 9-6, Appl. 2. With the application, Mitchell submitted proof that he has some degree of Indian blood and that he has been a certified member of the Cherokee Nation of Oklahoma since November 1984. Dkt. 9-6, Appl. 5. Mitchell argued that, on these facts, he should have been prosecuted under the Major Crimes Act, 18 U.S.C. § 1153, for committing murder in Indian country. Dkt. 9-6, Appl. 2. As legal support for his jurisdictional claim, Mitchell cited four cases: 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 "); Magnan v. Trammell , 719 F.3d 1159 (10th Cir. 2013), Cravatt v. State , 825 P.2d 277 (Okla. Crim. App. 1992), and United States v. Sands , 968 F.2d 1058 (10th Cir. 1992). Dkt. 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. Dkt. 9-6, Appl. 3 & n.1.

The Washington County District Court denied Mitchell's application on November 7, 2018. Dkt. 9-1, Docket Sheet 3 (Dist. Ct. Order Nov. 7, 2018). The court accepted as true that Mitchell is a member of the Cherokee Nation and that his tribal card showed he possessed some Indian blood, but found no evidence in the record describing the location of the murder "with any specificity." Dkt. 9-1, Docket Sheet 3 (Dist. Ct. Order Nov. 7, 2018). The court reasoned that, to the extent Mitchell relied on Murphy I , that case "only address[ed] the Muscogee (Creek) Nation tribe and does not further elaborate on the application to other Oklahoma tribes" and gives "[n]o guidance on how said ruling is to be applied in cases like the one at bar that involves a different tribe, or for determining the current boundaries for a certain tribe." Dkt. 9-1, Docket Sheet 3 (Dist. Ct. Order Nov. 7, 2018). The court noted that Mitchell's "case is now almost 30 years old and [he] has never appealed his conviction," and reasoned that Mitchell waived any claims that could have been raised on appeal or in previous postconviction proceedings. Dkt. 9-1, Docket Sheet 3 (Dist. Ct. Order Nov. 7, 2018). Finally, the court stated, "The Murphy case is presently pending before the United States Supreme Court. Until such time as the matter is decided by the Supreme Court and further direction is given to lower courts, this Court will not take action which could have irreversible effects." Dkt. 9-1, Docket Sheet 3 (Dist. Ct. Order Nov. 7, 2018).

Mitchell filed a postconviction appeal, and the OCCA affirmed the denial of postconviction relief on May 24, 2019. Dkt. 9-7, Order (May 24, 2019) 1. The OCCA reasoned that Mitchell's reliance on Murphy I was "premature" because the United States Court of Appeals for the Tenth Circuit stayed its decision pending the outcome of the Supreme Court's review of that decision. Dkt. 9-7, Order (May 24, 2019) 1-2. The OCCA further reasoned that, to the extent Mitchell relied on cases other than Murphy I , Mitchell "ha[d] not established any sufficient reason why his other arguments were not asserted prior to the entry of his guilty plea or in direct appeal proceedings from his Judgment and Sentence." Dkt. 9-7, Order (May 24, 2019) 3. Finally, citing Okla. Const. Art. VII, § 7, which provides state district court's "unlimited original jurisdiction of all justiciable matters in Oklahoma," the OCCA reasoned that Mitchell "ha[d] not established that the District Court lacked jurisdiction in this case." Dkt. 9-7, Order (May 24, 2019) 3.

On July 9, 2020, the Supreme Court issued decisions in two cases relevant to Mitchell's claim that the trial court lacked jurisdiction— 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 a 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 (2019) (granting petition for writ of certiorari). 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. Neither case, however, determined whether Congress had or had not disestablished the Cherokee Nation Reservation. See, e.g., McGirt , 140 S. Ct. at 2479 ("Each tribe's treaties must be considered on their own terms, and the only question before us concerns the Creek.").

One week after the Supreme Court issued its decisions in McGirt and Murphy II , Mitchell filed a motion asking the Washington County District Court to vacate his judgment and to dismiss his case for lack of jurisdiction. Dkt. 9-8, Mot. to Dismiss 1-4. The Washington County District Court denied the motion on September 14, 2020. Dkt. 9-1, Docket Sheet 4. Mitchell filed a postconviction appeal from the denial of the motion, and on November 9, 2020, the OCCA remanded the case to the Washington County District Court for an evidentiary hearing. Dkt. 9-1, Docket Sheet 5. Following an evidentiary hearing in February 2021, the Washington County District Court issued an order finding that Mitchell is a member of the Cherokee Nation, that he committed murder within the historical boundaries of the Cherokee Nation Reservation, and that the State of Oklahoma stipulated to the allegations of Mitchell's Indian status and the location of his crime. Dkt. 9-1, Docket Sheet 7 (Findings of Fact and Order Mar. 5, 2021).

On March 11, 2021, the OCCA held that Congress did not disestablish the Cherokee Nation Reservation, Hogner v. State , 500 P.3d 629, 635 (Okla. Crim. App. 2021), or the Chickasaw Reservation, Bosse v. State , 484 P.3d 286 (Okla. Crim. App. Mar. 11, 2021), corrected (Mar. 19, 2021), withdrawn, and superseded by 499 P.3d 771 (Okla. Crim. App. Oct. 7, 2021).

On April 19, 2021, the OCCA remanded Mitchell's case to the Washington County District Court, for a second time, and directed the court to make further findings of fact and conclusions of law. Dkt. 9-1,...

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