Allen v. Crow

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

NATHAN J. ALLEN,1 )

)

Petitioner, )

)

v. ) Case No. 21-CV-0527-CVE-SH

)

SCOTT CROW, )

)

Respondent. )

OPINION AND ORDER

Petitioner Nathan Allen, an Oklahoma prisoner appearing pro se,2 petitions for a writ of

habeas corpus, under 28 U.S.C. § 2254, claiming he is illegally detained, under the judgment

entered against him in the District Court of Tulsa County, Case No. CF-2017-1355. Relying on

the United States Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Allen

alleges that he was denied due process because the State of Oklahoma (the state) lacked jurisdiction

to prosecute him given that he is a member of the Muscogee (Creek) Nation and he committed his

crime of conviction within the boundaries of the Muscogee (Creek) Nation Reservation.3 Dkt. #

1 Respondent Scott Crow notes, and the record shows, that Allen’s middle initial is “J.”

Dkt. # 9, at 1 n.1; Dkt. # 9-1, at 1. The Court therefore directs the Clerk of Court to correct the

record to reflect that petitioner’s name is Nathan J. Allen.

2 Because Allen appears without counsel, the Court liberally construes his filings, but the

Court does so without crafting arguments on his behalf. Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

3 In July 2020, the McGirt Court held that Congress has not disestablished the Muscogee

(Creek) Nation Reservation, that the land within the boundaries of that reservation is therefore

Indian country, as defined in 18 U.S.C. § 1151(a), and that certain crimes committed within the

boundaries of that reservation by Native American defendants who are considered “Indian” under

federal law must be prosecuted in federal court. 140 S. Ct. at 2474, 2479.

1, at 5-10.4 Respondent Scott Crow moves to dismiss the petition, asserting that 28 U.S.C.

§ 2244(d)(1)’s one-year statute of limitations bars relief. Dkt. ## 8, 9. Having considered Allen’s

petition (Dkt. # 1), Crow’s motion to dismiss (Dkt. # 8) and brief in support of the motion (Dkt. #

9), Allen’s response in opposition to the motion (Dkt. # 10), and applicable law, the Court grants

Crow’s motion and dismisses Allen’s petition.

I.

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:

(A) the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court, if the right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The 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.” 28 U.S.C. § 2244(d)(2). But a properly filed application for

postconviction relief or other collateral review tolls the limitation period only if it is filed before

the 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 rare or

4 For consistency, the Court’s citations refer to the CM/ECF header pagination.

exceptional circumstances, toll the limitation period for equitable reasons. Holland v. Florida, 560

U.S. 631, 645 (2010); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).5 To obtain equitable

tolling, the petitioner must identify specific facts showing (1) that the petitioner acted with

reasonable diligence in pursuing federal claims challenging a state-court judgment and (2) that

extraordinary circumstances prevented the petitioner from filing a timely federal habeas petition

seeking relief as to those claims. Holland, 560 U.S. at 649; Yang v. Archuleta, 525 F.3d 925, 928

(10th Cir. 2008).

II.

Crow contends (1) that the petition is untimely under § 2244(d)(1)(A), (2) that Allen has

not shown that the petition is timely under any other provision of § 2244(d)(1), and (3) that Allen

has not shown that equitable tolling is warranted. Dkt. # 9, at 3-8. Allen urges the Court to deny

Crow’s motion for two reasons. First, he contends that the petition is timely because he “filed his

post-conviction within one (1) year of” the McGirt decision. Dkt. # 1, at 18. Second, he contends

that a claim challenging the trial court’s subject-matter jurisdiction cannot be waived and may be

raised at any time. Dkt. # 10, at 1-3. For three reasons, the Court rejects Allen’s arguments and

agrees with Crow that the statute of limitations bars relief.

A.

First, the petition is not timely under § 2244(d)(1)(A). Under that provision, the one-year

5 Federal courts also may 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 (2013). Even under the rule of liberal construction, the Court does not read Allen’s petition

or response as asserting that he is innocent of the crime to which he pleaded guilty. Rather, his

complaint is that the state improperly exercised criminal jurisdiction when it prosecuted him for

that crime. Dkt. # 1, at 5-10.

limitation period begins to run on the date that the challenged state-court judgment becomes final.

For petitioners who seek direct review of a state-court judgment, the judgment becomes final when

the last reviewing court issues a final decision affirming the judgment. Gonzalez v. Thaler, 565

U.S. 134, 150 (2012). For petitioners who do not seek direct review, the judgment becomes final

when the time expires to seek direct review. Id. Allen challenges a state-court judgment entered

against him on October 16, 2017, and he concedes that he did not seek direct review of this

judgment. Dkt. # 1, at 1-2; Dkt. # 9, at 1. Because Allen’s conviction resulted from a guilty plea,

Allen had ten days from the date of his sentencing to file a motion to withdraw his plea if he

intended to seek direct review of his judgment by filing a certiorari appeal in the Oklahoma Court

of Criminal Appeals. See Clark, 468 F.3d at 713 (citing Oklahoma law regarding appellate review

following conviction on a guilty plea). Because he did not move to withdraw his plea, Allen’s

judgment became final on October 26, 2017, when the time expired for him to seek direct review.

His one-year limitation period, under the AEDPA, commenced the next day, October 27, 2017,

and expired on October 29, 2018.6

Unless Allen can show that he can benefit from statutory or equitable tolling, the instant

petition, filed December 1, 2021,7 is clearly untimely under § 2244(d)(1)(A). And, as Crow

argues, neither form of tolling applies. Allen cannot benefit from statutory tolling because he did

not file any applications for postconviction relief or other collateral review in state court until June

6 Allen’s one-year limitation period expired on October 27, 2018. See Harris v. Dinwiddie,

642 F.3d 902, 906 n.6 (10th Cir. 2011) (discussing computation of one-year limitation period).

But because that date fell on a Saturday, Allen had until the following Monday, October 29, 2018,

to file a timely federal habeas petition. FED. R. CIV. P. 6(a)(1)(C).

7 The Clerk of Court received the petition on December 8, 2021. Dkt. # 1, at 1. But Allen

declares, under penalty of perjury, that he placed the petition in the prison’s legal mail system on

December 1, 2021. Dkt. # 1, at 20. The Court thus deems the petition filed on December 1, 2021.

Rule 3(d), Rules Governing Section 2254 Cases in the United States District Courts.

2019, several months after his one-year limitation period under § 2244(d)(1)(A) expired. Dkt. #

9, at 2; Dkt. # 9-2, at 8-14; see Clark, 468 F.3d at 714 (explaining that motions and applications

filed after expiration of the limitation period do not qualify as tolling motions under § 2244(d)(2)).

Similarly, Allen has not shown that he can benefit from equitable tolling of this one-year limitation

period. Critically, Allen does not identify any specific facts showing either that he diligently

pursued his claim that, because he is Native American, the State could not prosecute him for a

crime he committed in Indian country, or that any extraordinary circumstances prevented him from

filing a federal habeas petition asserting that claim before the limitation period expired on October

29, 2018. Holland, 560 U.S. at 649; Gibson, 232 F.3d at 808.

B.

Second, Allen has not demonstrated that any other provision of § 2244(d)(1) provides him

a later commencing one-year limitation period that would make his December 2021 petition

timely. In his petition, Allen appears to contend that his one-year limitation period began on July

9, 2020, when the Supreme Court issued its decision in McGirt. Dkt. # 1, at 18. Like Crow, the

Court construes Allen’s contention as asserting that the petition is timely under § 2244(d)(1)(C).

Under that provision, the one-year limitation period begins to run on “the date on which the

constitutional right asserted was initially recognized by the Supreme Court, if the right has been

newly recognized by the Supreme Court and made retroactively applicable to cases on collateral

review.” 28 U.S.C. § 2244(d)(1)(C). But this provision does not apply here because the McGirt

Court did not recognize any new constitutional right relative to Allen’s claim that the state

improperly exercised criminal jurisdiction over his prosecution for a crime he committed in Indian

country. See Pacheco v. El Habti, 48 F.4th 1179, 1191 (10th Cir. 2022) (“McGirt announced no

new constitutional right.”). And, even liberally construed, Allen’s arguments in the petition and

response do not appear to assert that the petition might be timely under either § 2244(d)(1)(B) or

§ 2244(d)(1)(D). Thus, the only provision that applies is § 2244(d)(1)(A) and, as just discussed,

the petition is untimely under that provision.8

C.

Third, in response to Crow’s dismissal motion, Allen argues that his claim challenges the

convicting court’s subject-matter jurisdiction and, thus, cannot be waived and can be raised at any

time without regard to the applicable statute of limitations. Dkt. # 10, at 1-3. This argument,

however, lacks merit. See Pacheco, 48 F.4th at 1190 (“When Congress enacted the limitations

period in AEDPA, it discerned no reason to provide a blanket exception for jurisdictional

claims.”); Murrell v. Crow, 793 F. App’x 675, 678-79 (10th Cir. 2019) (unpublished)9 (rejecting

habeas petitioner’s argument “that because a litigant can generally challenge a court’s subject-

matter jurisdiction at any time, § 2244(d)(1) does not apply to his claim that the trial court lacked

jurisdiction to accept his plea” and “reasoning that “the jurisdictional nature of [the petitioner’s]

due-process claim” did not bar dismissal of that claim as untimely); Cole v. Pettigrew, No. 20-CV-

0459-JED-CDL, 2021 WL 1535364, at *2-3 (N.D. Okla. Apr. 19, 2021) (unpublished) (explaining

that “the plain language of § 2244(d)(1)’s one-year statute of limitations makes no exception for

claims challenging subject-matter jurisdiction”). In short, and contrary to Allen’s apparent

8 As previously stated, Allen expressly argues in his petition that the petition is timely

because, with the benefit of statutory tolling, he filed it within one year of the McGirt decision.

Dkt. # 1, at 18. But he appears to argue in his response that his claim rests on case law that existed

before McGirt. Dkt. # 10, at 1-3. To the extent Allen argues that his claim relies on case law

decided before McGirt was issued in July 2020, that argument further supports Crow’s position

that Allen did not diligently pursue his claim and has not shown that any circumstances prevented

him from timely filing a federal habeas petition to assert that claim.

9 The Court cites this unpublished decision, and other unpublished decisions herein, as

persuasive authority. FED. R. APP. P. 32.1(a); 10th Cir. R. 32.1(A).

position, a claim challenging the convicting court’s jurisdiction is, like any other due-process claim

asserted by a habeas petitioner, subject to the AEDPA’s one-year statute of limitations.

Hil.

For the reasons stated, 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations bars relief

as to the claim asserted in the petition. The Court therefore grants Crow’s motion to dismiss and

dismisses Allen’s petition for writ of habeas corpus. And, because the statute of limitations

constitutes a plain procedural bar, the Court declines to issue a certificate of appealability. Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. the Clerk of Court shall correct the record to reflect that petitioner’s name is Nathan J.

Allen;

2. the motion to dismiss (Dkt. # 8) is granted;

3. the petition for writ of habeas corpus (Dkt. # 1) is dismissed with prejudice;

4. acertificate of appealability is denied;

5. anda separate judgment shall be entered in this matter.

DATED this 14th day of October, 2022.

Midis GHe...

CLAIRE V.EAGAN

UNITED STATES DISTRICT JUDGE