State ex rel. Matloff v. Wallace, Case No. PR-2021-366

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: LEWIS, JUDGE
• Citation: 497 P.3d 686
• Parties: STATE EX REL. Mark MATLOFF, District Attorney, Petitioner v. The Honorable Jana WALLACE, Associate District Judge, Respondent.
• Docket Number: Case No. PR-2021-366
• Decision Date: 12 August 2021

497 P.3d 686

STATE EX REL. Mark MATLOFF, District Attorney, Petitioner
v.
The Honorable Jana WALLACE, Associate District Judge, Respondent.

Case No. PR-2021-366

Court of Criminal Appeals of Oklahoma.

FILED AUGUST 12, 2021

497 P.3d 687

OPINION

LEWIS, JUDGE:

¶1 The State of Oklahoma, by Mark Matloff, District Attorney of Pushmataha County, petitions this Court for the writ of prohibition to vacate the Respondent Judge Jana Wallace's April 12, 2021 order granting post-conviction relief. Judge Wallace's order vacated and dismissed the second degree murder conviction of Clifton Merrill Parish in Pushmataha County Case No. CF-2010-26. Because the Respondent's order is unauthorized by law and prohibition is a proper remedy, the writ is GRANTED .

FACTS

¶2 Clifton Parish was tried by jury and found guilty of second degree felony murder in March, 2012. The jury sentenced him to twenty-five years imprisonment. This Court affirmed the conviction on direct appeal in Parish v. State , No. F-2012-335 (Okl.Cr., March 6, 2014) (unpublished). Mr. Parish did not petition for rehearing, and did not petition the U.S. Supreme Court for certiorari within the allowed ninety-day time period. On or about June 4, 2014, Mr. Parish's conviction became final.¹

¶3 On August 17, 2020, Mr. Parish filed an application for post-conviction relief alleging that the State of Oklahoma lacked subject matter jurisdiction to try and sentence him for murder under the Supreme Court's decision in McGirt v. Oklahoma , ––– U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020). Judge Wallace held a hearing and found that Mr. Parish was an Indian and committed his crime within the Choctaw Reservation, the continued existence of which was recently recognized by this Court, following McGirt , in Sizemore v. State , 2021 OK CR 6, ¶ 16, 485 P.3d 867, 871.

¶4 Because the Choctaw Reservation is Indian Country, Judge Wallace found that the State lacked subject matter jurisdiction to try Parish for murder under the Major Crimes Act. 18 U.S.C. § 1153. Applying the familiar rule that defects in subject matter jurisdiction can never be waived, and can be raised at any time, Judge Wallace found Mr. Parish's conviction for second degree murder was void and ordered the charge dismissed.

¶5 Judge Wallace initially stayed enforcement of the order. The State then filed in this Court a verified request for a stay and petitioned for a writ of prohibition against enforcement of the order granting post-conviction relief. In State ex rel. Matloff v. Wallace , 2021 OK CR 15, ––– P.3d ––––, this Court stayed all proceedings and directed counsel for the interested parties to submit briefs on the following question:

In light of Ferrell v. State , 1995 OK CR 54, 902 P.2d 1113, United States v. Cuch, 79 F.3d 987 (10th Cir. 1996), Edwards v. Vannoy (No. 19-5807), 593 U.S. –––– [141 S.Ct. 1547, 209 L.Ed.2d 651] (May 17, 2021), cases cited therein, and related authorities, should the recent judicial recognition of federal criminal jurisdiction in the Creek and Choctaw Reservations announced in McGirt and Sizemore be applied retroactively to void a state conviction that was

497 P.3d 688

final when McGirt and Sizemore were announced?

¶6 The parties and amici curiae² subsequently filed briefs on the question presented. For reasons more fully stated below, we hold today that McGirt v. Oklahoma announced a new rule of criminal procedure which we decline to apply retroactively in a state post-conviction proceeding to void a final conviction. The writ of prohibition is therefore GRANTED and the order granting post-conviction relief is REVERSED .

ANALYSIS

¶7 In state post-conviction proceedings, this Court has previously applied its own non-retroactivity doctrine—often drawing on, but independent from, the Supreme Court's non-retroactivity doctrine in federal habeas corpus—to bar the application

497 P.3d 689

of new procedural rules to convictions that were final when the rule was announced. See Ferrell v. State , 1995 OK CR 54, ¶¶ 5-9, 902 P.2d 1113, 1114-15 (citing Teague , supra ) (finding new rule governing admissibility of recorded interview was not retroactive on collateral review); Baxter v. State , 2010 OK CR 20, ¶ 11, 238 P.3d 934, 937 (noting our adoption of Teague non-retroactivity analysis for new rules in state post-conviction review); and Burleson v. Saffle , 278 F.3d 1136, 1141 n.5 (10th Cir. 2002) (noting incorporation "into state law the Supreme Court's Teague approach to analyzing whether a new rule of law should have retroactive effect," citing Ferrell , supra ).

¶8 New rules of criminal procedure generally apply to cases pending on direct appeal when the rule is announced, with no exception for cases where the rule is a clear break with past law. See Carter v. State , 2006 OK CR 42, ¶ 4, 147 P.3d 243, 244 (citing Griffith v. Kentucky , 479 U.S. 314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ) (applying new instructional rule of Anderson v. State , 2006 OK CR 6, 130 P.3d 273 to case tried before the rule was announced, but pending on direct review). But new rules generally do not apply retroactively to convictions that are final, with a few narrow exceptions. Ferrell, 1995 OK CR 54, ¶ 7, 902 P.2d at 1114-15 ; Thomas v. State , 1994 OK CR 85, ¶ 13, 888 P. 2d 522, 527 (decision requiring that prosecution file bill of particulars no later than arraignment did not apply to convictions already final).

¶9 Following Teague and its progeny, we would apply a new substantive rule to final convictions if it placed certain primary (private) conduct beyond the power of the Legislature to punish, or categorically barred certain punishments for classes of persons because of their status (capital punishment of persons with insanity or intellectual disability, or juveniles, for example). See, e.g., Pickens v. State , 2003 OK CR 16, ¶¶ 8-9, 74 P.3d 601, 603 (retroactively applying Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) because Atkins barred capital punishment for persons with intellectual disability).

¶10 Under Ferrell , we also would retroactively apply a new "watershed" procedural rule that was essential to the accuracy of trial proceedings, but such a rule is unlikely ever to be announced. Ferrell , 1995 OK CR 54, ¶ 7, 902 P.2d at 1115 ; see Beard v. Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (identifying Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) as the paradigmatic watershed rule, and likely the only one ever announced by the Supreme Court); Edwards v. Vannoy , ––– U.S. ––––, 141 S.Ct. 1547, 1561, 209 L.Ed.2d 651 (2021) (acknowledging the "watershed" rule concept was moribund and would no longer be incorporated in Teague retroactivity analysis).

¶11 Like the Supreme Court, we have long adhered to the principle that the narrow purposes of collateral review, and the reliance, finality, and public safety interests in factually accurate convictions and just punishments, weigh strongly against the application of new procedural rules to convictions already final when the rule is announced. Applying new procedural rules to final convictions, after a trial or guilty plea and appellate review according to then-existing procedures, invites burdensome litigation and potential reversals unrelated to accurate verdicts, undermining the deterrent effect of the criminal law. Ferrell , 1995 OK CR 54, ¶¶ 6-7, 902 P.2d at 1114-15.

¶12 Just as Teague' s doctrine of non-retroactivity "was an exercise of [the Supreme Court's] power to interpret the federal habeas statute," Danforth v. Minnesota , 552 U.S. 264, 278, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), we have barred state post-conviction relief on new procedural rules as part of our independent authority to interpret the remedial scope of state post-conviction statutes. Smith v. State , 1994 OK CR 46, ¶ 3, 878 P.2d 375, 377-78 (declining to apply rule on flight instruction to conviction that was final six years earlier); Thomas , 1994 OK CR 85, ¶ 13, 888 P.2d at 527 (declining to apply rule on filing bill of particulars at arraignment to conviction that was final when rule was announced).

¶13 Before and after McGirt , this Court has treated Indian Country claims as presenting non-waivable challenges to criminal subject matter jurisdiction. Bosse v. State , 2021 OK CR 3, ¶¶ 20-21, 484 P.3d 286, 293-94; Magnan v. State , 2009 OK CR 16, ¶ 9, 207 P.3d 397, 402 (both characterizing claim as subject matter jurisdictional challenge that may be raised at any time). After McGirt was decided, relying on this theory of non-waivability, this Court initially granted post-conviction relief and vacated several capital murder convictions, and at least one non-capital conviction (Jimcy McGirt's), that were final when McGirt was announced.³

¶14 We acted in those post-conviction cases without our attention ever having been drawn to the potential non-retroactivity of McGirt in light of the Court of Appeals' opinion in United States v. Cuch , 79 F.3d 987 (10th Cir. 1996), cert. denied , 519 U.S. 963, 117 S.Ct. 384, 136 L.Ed.2d 301 (1996) and cases discussed therein, which we find very persuasive in our analysis of the state law question today. See also, e.g., Schlomann v....