Pitts v. Nunn

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

HERMAN PITTS, )

)

Petitioner, )

)

v. ) Case No. CIV-22-00025-JD

)

SCOTT NUNN, )

)

Respondent. )

ORDER

Before the Court is United States Magistrate Judge Suzanne Mitchell’s Report and

Recommendation (“R. & R.”) [Doc. No. 5] issued on February 22, 2022, under 28 U.S.C.

§ 636(b)(1)(B), (C). Judge Mitchell recommends that Petitioner Herman Pitts’s Petition

for Writ of Habeas Corpus under 28 U.S.C. § 2254 [Doc. No. 1] be dismissed as

untimely. R. & R. at 15. Judge Mitchell advised Mr. Pitts of his right to object to the R. &

R. by March 15, 2022. Mr. Pitts timely objected on March 7, 2022. [Doc. No. 6].

Because an objection is being considered, the Court reviews the R. & R. de novo.

See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of

those portions of the report or specified proposed findings or recommendations to which

objection is made.”). The Court also liberally construes Mr. Pitts’s pleadings because he

is proceeding pro se. Having done so, the Court agrees with the R. & R. and dismisses

with prejudice Mr. Pitt’s habeas petition as untimely. The Court also denies a certificate

of appealability.

I. Background

Mr. Pitts pleaded guilty to one charge of child sexual abuse and a state court

sentenced him to life in prison on February 17, 2015. [Doc. No. 1]. Mr. Pitts filed for

post-conviction relief on August 31, 2020, but was denied. As the R. & R. sets out at

pages 4–5, 28 U.S.C. § 2244(d), part of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), establishes a one-year limitations period during which an

inmate in state custody can file a federal habeas petition challenging a state conviction.

Section 2244(d) provides the triggers and tolling provisions for this limitations period.

Mr. Pitts’s conviction became final on February 4, 2016, and his habeas “clock”

began running the next day. Accounting for the deadline falling on a weekend,1 his

habeas deadline expired a year later on February 6, 2017. R. & R. at 11. Thus, the key

date in this case is February 6, 2017. Mr. Pitts did not file any further known challenges

until after the U.S. Supreme Court decision in McGirt v. Oklahoma, 140 S. Ct. 2452

(2020). Presumably as a result of McGirt, Mr. Pitts appealed to the Oklahoma Court of

Criminal Appeals (“OCCA”) on August 13, 2021, and the OCCA affirmed on December

1, 2021. Mr. Pitts filed this habeas petition on January 6, 2022. [Doc. No. 1].

Mr. Pitts argues that the statute of limitations in 28 U.S.C. § 2244(d) has not

1 See Fed. R. Civ. P. 6(a)(1)(C) (“if the last day is a Saturday, Sunday, or legal

holiday, the period continues to run until the end of the next day that is not a Saturday,

Sunday, or legal holiday”).

expired because, after factoring in post-conviction proceedings,2 he filed this action

within one-year of the decision in Sizemore v. State, 485 P.3d 867 (Okla. Crim. App.

2021), the case that he claims triggered his entitlement to habeas relief. See [Doc. No. 1

¶ 18] (citing to McGirt and related cases in response to question about why the one-year

statute of limitations does not bar the petition).3 The R. & R. disagreed that Sizemore or

related cases are the trigger for the statute of limitations, and also determined that no

tolling applies in this case.

II. Discussion

A. Mr. Pitts’s subject-matter jurisdiction challenge is subject to AEDPA.

In his objection to the R. & R., Mr. Pitts argues that the state court lacked

jurisdiction, and that challenges to subject-matter jurisdiction are not subject to the

AEDPA statute of limitations. [Doc. No. 6 at 1–2, 5–8]. Mr. Pitts contends that AEDPA

“assumes competent jurisdiction for a judgment to become final.” [Id. at 2]. He argues

that Oklahoma could not have acquired jurisdiction “because the Oklahoma Enabling Act

2 This AEDPA statute of limitations “is tolled during the time state post-conviction

review is pending . . . .” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000)

(citation omitted).

3 In his petition, Mr. Pitts claims that Sizemore “establish[ed] the Chickasaw

reservation’s continuance,” but that case concerned the continuity of the Choctaw

Reservation, not the Chickasaw Reservation. The OCCA recognized that Congress never

disestablished the Chickasaw Reservation and that the lands within its boundaries are

Indian country in Bosse v. State, 499 P.3d 771 (Okla. Crim. App. 2021). The Court will

refer to Sizemore throughout because that is the case Mr. Pitts relies on, but the petition is

untimely regardless of whether Mr. Pitts relies on Sizemore, Bosse, or McGirt because

none of these cases triggers his habeas clock.

reserved such jurisdiction to the United States . . . .” [Id. at 1 (footnote omitted); see also

id. at 7].4

However, absence of subject-matter jurisdiction claims directed at the convicting

court—like Mr. Pitts’s—are due-process claims, and “[a]s with any other habeas claim,

[due process challenges are] subject to dismissal for untimeliness.” Morales v. Jones, 417

F. App’x 746, 749 (10th Cir. 2011) (unpublished); see also Murrell v. Crow, 793 F.

App’x 675, 679 (10th Cir. 2019) (unpublished) (denying request for certificate of

appealability about untimeliness of state prisoner’s habeas claim that the state lacked

jurisdiction to prosecute him); United States v. Patrick, 264 F. App’x 693, 694–95 (10th

Cir. 2008) (unpublished) (declining to issue a certificate of appealability and dismissing

appeal where petitioner-appellant challenged the district court’s dismissal of an untimely

habeas petition challenging the convicting court’s subject-matter jurisdiction). Contrary

to Mr. Pitts’s arguments, “a habeas claim predicated on a convicting court’s lack of

4 The R. & R. reaches a recommendation that the habeas petition is procedurally

barred for untimeliness without reaching the merits of the underlying claim. Thus, the

Court reviews and analyzes that recommendation. See 28 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 72(b)(3). However, the Court notes in dicta for Mr. Pitts’s benefit Oklahoma v.

Castro-Huerta issued on June 29, 2022 (after he filed his habeas petition and objection),

wherein the U.S. Supreme Court recognized that the federal government and the state

have concurrent jurisdiction to prosecute crimes committed by non-Indians against

Indians in Indian country. 142 S. Ct. 2486, 2504–05 (2022). The Supreme Court also

explained that it “has long held that States may prosecute crimes committed by non-

Indians against non-Indians in Indian country.” Id. at 2496 (citing United States v.

McBratney, 104 U.S. 621, 623–24 (1882); Draper v. United States, 164 U.S. 240, 242–46

(1896)); see also id. at 2494 (“States have jurisdiction to prosecute crimes committed in

Indian country unless preempted”). The Supreme Court further held that the Oklahoma

Enabling Act does not displace state criminal jurisdiction over Indian country. Id. at

2503–04; see id. at 2504 (“To be clear, the Court today holds that Indian country within a

State’s territory is part of a State, not separate from a State.”).

subject matter jurisdiction ‘is subject to dismissal for untimeliness.’” Lamarr v. Nunn,

No. 22-6063, 2022 WL 2678602, at *2 (10th Cir. July 12, 2022) (unpublished)

(collecting cases).5

Oklahoma district courts appear to uniformly apply this reasoning in post-McGirt

cases and hold that subject-matter jurisdiction challenges must comply with AEDPA.

See, e.g., Davis v. Nunn, No. CIV-21-1028-SLP, 2022 WL 1618534, at *2 (W.D. Okla.

May 23, 2022); Donahue v. Harding, 2021 WL 4714662, at *6 (W.D. Okla. Sept. 15,

2021), report & recommendation adopted, No. CIV-21-00183-PRW, 2021 WL 4711680

(W.D. Okla. Oct. 8, 2021); Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at

*3 (W.D. Okla. Aug. 27, 2021); Cole v. Pettigrew, No. 20-CV-0459-JED, 2021 WL

1535364, at *2 n.4 (N.D. Okla. Apr. 19, 2021). Thus, any challenge by Mr. Pitts that the

state court lacked jurisdiction as a result of McGirt (or Sizemore) must still be timely

under AEDPA. His objection to AEDPA applying to his jurisdictional challenge is

therefore overruled.

5 Mr. Pitts argues that his due process violation is different from other due process

violations because the AEDPA time limit violates various provisions of the Constitution.

See [Doc. No. 6 at 4–5]. Lamarr, however, dealt with a McGirt, state-court subject-matter

jurisdiction challenge. Regarding his specific arguments, the United States Congress

adopted the AEDPA time limits so there is no concern of state usurpation of

congressional plenary power nor a supremacy clause issue in applying the time limits to

his petition. His suspension clause argument also fails because Mr. Pitts does not show

how the limitation period “renders the habeas remedy ‘inadequate or ineffective’ to test

the legality of detention.” Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998) (explaining

“[t]he burden is on the petitioner to demonstrate inadequacy and ineffectiveness”).

B. Mr. Pitts’s objection under 28 U.S.C. § 2244(d)(1)(B), (C), and (D) lacks

merit.

Mr. Pitts asserts that his basis for seeking habeas relief did not ripen until the

OCCA applied the McGirt decision in Sizemore.6 Mr. Pitts’s reliance on Sizemore as

triggering his statute of limitations “clock” is misplaced for the reasons articulated in the

R. & R. See R. & R. at 4–12 (citing numerous cases rejecting Mr. Pitts’s arguments on

trigger for limitations). The Court concurs with the R. & R. and cannot add significantly

to its analysis regarding Mr. Pitts’s deadline under 28 U.S.C. § 2244(d)(1)(A) to file for

habeas relief.

Mr. Pitts’s objection that § 2244(d)(1)(B), (C), and (D) impact the start date for his

limitations period lacks merit. He argues that the state trial court’s lack of jurisdiction

gives him a later start date, that McGirt recognized a new constitutional right which

provides a later start date, and that the recognition of the continuation of the reservation

establishes a new factual predicate of his claim. [Doc. No. 6 at 2–3]. But Mr. Pitts has not

identified any impediment or any facts preventing him from timely filing or discovering

such claim through the exercise of due diligence, nor does McGirt create a new

constitutional right. The Tenth Circuit has rejected the latter argument. See Pacheco v. El

Habti, 48 F.4th 1179, 1183 (10th Cir. 2022) (holding that “McGirt did not announce a

new constitutional right”); Lamarr, 2022 WL 2678602, at *2, n.2 (noting that McGirt did

not establish a new constitutional right that would trigger a new date for the limitations

6 McGirt determined that Congress never properly disestablished the Muscogee

(Creek) Nation Reservation. Sizemore extended McGirt to the Choctaw Reservation, and

Bosse extended the decision to the Chickasaw Reservation.

period) (citing Hill v. Nunn, No. 22-6042, 2022 WL 2154997, at *1 (10th Cir. June 15,

2022) (unpublished)). And numerous courts that this Court finds persuasive have rejected

the contention that § 2244(d)(1)(B), (C), or (D) provide a later filing date in these

circumstances or that the state court’s subject-matter jurisdiction operates to give him a

later filing date. See Hill v. Nunn, No. CIV-21-1208-SLP, 2022 WL 597274, at *1 (W.D.

Okla. Feb. 28, 2022) (“[T]he McGirt decision did not recognize a new constitutional right

. . . . Petitioner cannot rely on § 2244(d)(1)(C) as the triggering date”; also rejecting

petitioner’s argument that subject-matter jurisdiction renders AEDPA’s statute of

limitations inapplicable) (citing cases); Jones, 2021 WL 3854755, at *2 (finding that the

petitioner did not allege facts implicating either § 2244(d)(1)(B) or (D), and rejecting the

proposition that McGirt should be used as a commencement date under § 2244(d)(1)(C)

for habeas challenges to state-court jurisdiction) (citing cases); Cole, 2021 WL 1535364,

at *2 n.4 (explaining “the plain language of § 2244(d)(1)’s one-year statute of limitations

makes no exception for claims challenging subject-matter jurisdiction” and rejecting

petitioner’s reliance on subject-matter jurisdiction to show his petition is timely).

Accordingly, the Court overrules Mr. Pitts’s objection to the start-date for his limitations

period.

C. Mr. Pitts is not entitled to statutory tolling of the limitations period.

Mr. Pitts’s claim could be timely if the statute of limitations were tolled by

operation of “statutory tolling” under the plain terms of the applicable statute, 28 U.S.C.

§ 2244(d)(2).7 However, “[o]nly state petitions for post-conviction relief filed within the

one year allowed by AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468

F.3d 711, 714 (10th Cir. 2006). As the R. & R. determined, statutory tolling is not

applicable because Mr. Pitts filed the petition for post-conviction relief in state court on

August 31, 2020—well after the expiration of AEDPA’s one-year period on February 6,

2017. See [Doc. No. 1]. Under binding Tenth Circuit authority, Mr. Pitts is not entitled to

statutory tolling of the AEDPA limitations period.

D. Neither equitable tolling nor an equitable exception for miscarriage of justice

is warranted in this case.

In certain cases, the statute of limitations can be tolled for equitable reasons. To

obtain equitable tolling, Mr. Pitts must show “‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented

timely filing” of his federal habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). This is a “strong burden” that

requires Mr. Pitts “to show specific facts to support his claim of extraordinary

circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)

(quotation omitted). Examples of the “rare and exceptional circumstances” for equitable

tolling include “when a prisoner is actually innocent, when an adversary’s conduct—or

other uncontrollable circumstances—prevents a prisoner from timely filing, or when a

7 This provision states that “[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 shall not be counted toward any period of limitation under this

subsection.” 28 U.S.C. § 2244(d)(2).

prisoner actively pursues judicial remedies but files a defective pleading during the

statutory period.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (cleaned up).

The Tenth Circuit has already determined that “ignorance of the law, even for an

incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000) (internal quotation marks omitted). As the R. & R.

correctly noted, this Court and those in neighboring districts have found that a

jurisdictional claim under McGirt arises from ignorance of the law as it already existed

prior to the decision. See Seals v. Smith, 2020 WL 6038760, at *4 (W.D. Okla. June 4,

2020) (“Petitioner, however, knew the factual predicate for his jurisdictional claim—i.e.,

the location of his crimes and his status as a tribal member—when he entered his plea.”)

(internal quotation marks omitted), report and recommendation adopted, No. CIV-19-

1069-D, 2020 WL 3605027 (W.D. Okla. July 2, 2020); Sanders v. Pettigrew, No. CIV

20-350-RAW-KEW, 2021 WL 3291792, at *6 (E.D. Okla. Aug. 2, 2021) (finding “no

evidence in the record to suggest that uncontrollable circumstances impeded him from

timely filing his federal claim” when petitioner made a jurisdictional claim based on

McGirt because that case “did not break any new ground” or “recognize a new

constitutional right”); Stiltner v. Nunn, No. 21-CV-0374-GKF-CDL, 2022 WL 951997, at

*5 (N.D. Okla. Mar. 29, 2022) (“[A] reasonably diligent petitioner could have discovered

the facts necessary to challenge Oklahoma’s criminal jurisdiction before McGirt was

decided in 2020.”). Exercising due diligence, Mr. Pitts could have discovered the facts

necessary to make his jurisdictional claim before the Supreme Court decided McGirt and

before OCCA decided Sizemore, and his ignorance of the law is not sufficient to toll the

statute of limitations.

The R. & R. was also correct in finding that Mr. Pitts cannot overcome AEDPA’s

statute of limitations with a claim of actual innocence. Mr. Pitts has made no claim of

actual innocence in either his petition or objection. See [Doc. Nos. 1, 6]. As the R. & R.

noted, a claim that the state trial court lacked jurisdiction, without more, is insufficient to

constitute a viable claim of actual innocence. See also Pacheco, 48 F.4th at 1183 (holding

that petitioner’s “jurisdictional argument does not show actual innocence”). Thus, there is

not an applicable equitable exception to the AEDPA’s one-year limitation period in this

case and the petition is untimely and should be dismissed with prejudice.8

III. Appealability

Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts, “[t]he district court must issue or deny a certificate of appealability when

it enters a final order adverse to the applicant.” To obtain a certificate of appealability,

Mr. Pitts must make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Mr. Pitts can satisfy this standard by demonstrating that jurists of

reason could debate whether the petition should have been resolved in a different manner

or that the issues presented are adequate to deserve encouragement to proceed further.

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation

8 The Tenth Circuit recognizes that untimely habeas petitions should be dismissed

with prejudice. See McDowell v. Zavaras, 417 F. App’x 755, 756–57 (10th Cir. 2011)

(unpublished) (explaining that a habeas petition “denied as time-barred” is “a dismissal

. . . on the merits”) (citing cases); Brown v. Roberts, 177 F. App’x 774, 778 (10th Cir.

2006) (unpublished) (“Dismissal of a petition as time barred operates as a dismissal with

prejudice . . . .”).

omitted). After considering this Order, the R. & R., the record, and the state of current

law, the Court finds that reasonable jurists could not debate the Court’s determinations

that Mr. Pitts’s habeas petition is untimely and that he is not entitled to statutory or

equitable tolling or exception. Because Mr. Pitts cannot make the required showing, the

Court declines to issue a certificate of appealability.

IV. Conclusion

Having carefully and thoroughly considered the issues identified in the objection

de novo, and for the reasons discussed above, the Court:

(1) ADOPTS and ACCEPTS the Report and Recommendation issued by

United States Magistrate Judge Suzanne Mitchell [Doc. No. 5];

(2) DISMISSES the § 2254 petition with prejudice as untimely; and

(3) DENIES acertificate of appealability.

IT IS SO ORDERED this Ist day of December 2022.

UNITED STATES DISTRICT JUDGE

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