Pacheco v. El Habti

Decision Date15 September 2022
Docket Number20-7002
Citation48 F.4th 1179
Parties Delila PACHECO, Petitioner - Appellant, v. Aboutanaa EL HABTI, Warden, Respondent - Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Kathleen Shen, Assistant Federal Public Defender (Shira Kieval, Assistant Federal Public Defender, and Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Petitioner - Appellant.

Caroline Hunt, Assistant Attorney General (Ashley L. Willis, Assistant Attorney General, and John M. O'Connor, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent - Appellee.

Before HARTZ, SEYMOUR, and MORITZ, Circuit Judges.

HARTZ, Circuit Judge.

Delila Pacheco was convicted in Oklahoma of first-degree child-abuse murder. She sought relief in the United States District Court for the Eastern District of Oklahoma, filing an application under 28 U.S.C. § 2254. While her application was pending, we decided Murphy v. Royal , 875 F.3d 896 (10th Cir. 2017), holding that a large portion of the State of Oklahoma is "Indian country" for purposes of the Major Crimes Act, which provides for exclusive federal jurisdiction over certain enumerated crimes committed by Indians in "Indian country." 18 U.S.C. § 1153(a).1 Ms. Pacheco—an Indian found to have committed a serious crime at a location since determined to be on an Indian reservation—sought to amend her application to assert a claim that the state courts lacked jurisdiction over the offense.

The district court denied the request to amend on the ground that the new claim was time-barred. We granted a certificate of appealability (COA) on this issue. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under § 2254 ). Ms. Pacheco argues on appeal (1) that the time bar to her jurisdictional claim should be excused under the actual-innocence exception and, alternatively, (2) that the statute of limitations reset when the Supreme Court declared the underlying law in McGirt v. Oklahoma , ––– U.S. ––––, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020), rendering timely her request to amend. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the district court's order denying leave to amend because Ms. Pacheco's jurisdictional argument does not show actual innocence, and McGirt did not announce a new constitutional right. We deny a COA on any further issues.


In 2014 Ms. Pacheco was tried in Oklahoma state court for first-degree child-abuse murder in connection with the death of her two-year-old foster daughter. See Okla. Stat. tit. 21, § 701.7(C). The Oklahoma Court of Criminal Appeals (OCCA) summarized the evidence presented at trial as follows:

Appellant was convicted of intentionally using unreasonable and lethal force against two-year-old A.H. in the early morning hours of December 8, 2013. Appellant and her husband, Longino Pacheco, lived in rural Cherokee County with their three teenage children. A few months before the homicide, Appellant had obtained custody of A.H. and her three-year-old sister, H.H., who were relatives of Appellant. The child, who slept on the floor beside Appellant's bed, died from internal bleeding caused by blunt-force trauma to her liver ; she also had many bruises on her face and body. Appellant told police that on the night in question, the child refused to go to sleep, and she (Appellant) had to get up several times to attend to her. By all accounts, the child had some behavioral problems; for example, she would often gag herself to get attention or to keep from falling asleep. Appellant's husband testified that he heard Appellant spank the child in the middle of the night, and that he heard the child say "owie" around the same time. Nevertheless, neither Appellant nor any other member of the family admitted to having any idea how the child was bruised, or what caused her death.

R., Vol. I at 205. Ms. Pacheco was convicted and sentenced to life imprisonment with the possibility of parole. In 2016 the OCCA affirmed the conviction and sentence.

A few months later Ms. Pacheco filed an application under 28 U.S.C. § 2254 in federal district court. Her only claims alleged insufficient evidence and ineffective assistance of counsel. Then we decided Murphy , which held that the Muscogee (Creek) Reservation is Indian country for purposes of the Major Crimes Act, 18 U.S.C. § 1153(a). See 875 F.3d at 966. As a result, Oklahoma state courts lacked jurisdiction to try the applicant, a member of the Creek Nation, for a murder that had occurred on the Creek Reservation. See id. Although our holding in Murphy was limited to the Creek Reservation, the Creek Nation shares its relevant history in Oklahoma with "the other Indian nations that composed the ‘Five Civilized Tribes’—the Cherokees, Chickasaws, Choctaws, and Seminoles." McGirt , 140 S. Ct. at 2483 (Roberts, C.J., dissenting).

Ms. Pacheco first sought postconviction relief under Murphy in state court.2 Alleging that she was a member of the Cherokee Nation who allegedly committed an offense enumerated in the Major Crimes Act on the Cherokee Reservation, she argued that "the State of Oklahoma was without jurisdiction to charge, try, convict, and sentence her for the major crime of murder in the first degree - child abuse." Aplt. Suppl. Br., Attach. A-2. The state courts denied relief, ruling that Ms. Pacheco's application was premature because the Supreme Court had granted a petition for a writ of certiorari in Murphy .

Ms. Pacheco shifted her attention back to federal court. In 2019 she moved for leave to file a supplemental brief on the same jurisdictional challenge. The district court construed the motion as a motion for leave to amend under Federal Rule of Civil Procedure 15 and denied the motion because it was untimely and the proposed amendment did not relate back to the original pleading. The court denied relief on the other claims in the application, and it denied a COA on January 16, 2020. Ms. Pacheco filed a timely notice of appeal to this court and sought a COA on a number of issues.

On July 9, 2020, the Supreme Court affirmed Murphy and decided McGirt , which held that the Creek Reservation had never been disestablished and that the land it encompassed remained Indian country for purposes of the Major Crimes Act. See Sharp v. Murphy , ––– U.S. ––––, 140 S. Ct. 2412, 207 L.Ed.2d 1043 (2020) (per curiam); McGirt , 140 S. Ct. at 2482 ("The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe's authority. But Congress has never withdrawn the promised reservation."). Armed with this new Supreme Court authority, Ms. Pacheco once more pressed her jurisdictional challenge in state court in a second application for postconviction relief. The trial court found (1) that Ms. Pacheco had one-half Indian blood and was a recognized member of the Keetoowah Band of the Cherokee Nation, making her an Indian for purposes of federal law,3 and (2) that the crime of conviction occurred on the Cherokee Reservation, which is Indian country.4 But the OCCA ultimately denied relief, citing its recent holding that McGirt announced a new procedural rule that was not retroactively applicable and noting that Ms. Pacheco's conviction became final before McGirt was decided. See State ex rel. Matloff v. Wallace , 497 P.3d 686, 688 (Okla. Crim. App. 2021), cert. denied sub nom. Parish v. Oklahoma , ––– U.S. ––––, 142 S. Ct. 757, 211 L.Ed.2d 474 (2022).

Meanwhile, on December 7, 2020, this court granted a COA on the following issue:

whether the district court erred in denying Pacheco's request to amend her habeas application under Federal Rule of Civil Procedure 15 to include a claim that the state court lacked jurisdiction to charge, try, and convict her because she is an Indian, the victim was an Indian, and the crime occurred in Indian country.

Order Granting COA at 1. We appointed counsel and ordered supplemental briefing.


Because Ms. Pacheco is an Indian found to have committed a major offense in Indian country, no party disputes that if she were tried today for the murder of A.H., she would be tried in federal court under the Major Crimes Act.5 The question is whether any "legal doctrines ... designed to protect those who have reasonably labored under a mistaken understanding of the law," McGirt , 140 S. Ct. at 2481, now preclude relief.

A. Timeliness of Jurisdictional Claim

The OCCA affirmed Ms. Pacheco's conviction on direct review on April 15, 2016. She filed her § 2254 application in federal court on October 17, 2016. She then moved to file a supplemental brief on November 6, 2019, and she submitted a proposed supplemental brief on November 26 that presented her jurisdictional challenge. Construing the November 2019 filings as a motion for leave to amend under Federal Rule of Civil Procedure 15, the district court determined that the proposed amendment set forth an untimely claim and that the amendment did not relate back to her original pleading. The court therefore denied leave to amend.

We review for abuse of discretion a district court's decision to deny leave to amend a § 2254 application. See Stafford v. Saffle , 34 F.3d 1557, 1560 (10th Cir. 1994). Because a § 2254 application "may be amended or supplemented as provided in the rules of procedure applicable to civil actions," 28 U.S.C. § 2242, we look to Rule 15 for applicable law. Under Rule 15(a)(1) a pleading may be amended "once as a matter of course" within 21 days after (A) serving the pleading or (B) service of a responsive pleading or preresponse motion. When, as here, Paragraph 15(a)(1) does not apply, a party may amend only with the opposing party's written consent or the court's leave. See Fed. R. Civ. P. 15(a)(2). The "court should freely give leave when justice so requires." Id. But it may deny leave to amend for the purpose of asserting...

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