Harjo v. Harding

Gnited States District Court

for the s2orthern District of Oklahoma

Case No. 24-cv-282-JDR-CDL

RICHARD HARJo,

Petitioner,

versus

RANDY HARDING, Warden,

Respondent.

OPINION AND ORDER

Richard Harjo, a self-represented Oklahoma prisoner,’ petitions for a

writ of habeas corpus under 28 U.S.C. § 2254. Harjo asserts that he is unlaw-

fully detained by the judgment entered against him in Tulsa County District

Court Case No. CF-1995-1024. Respondent moves to dismiss the petition as-

serting that this Court does not have jurisdiction to adjudicate any claims in

the Petition because Harjo did not comply with 28 U.S.C. § 2244(b)’s proce-

dural requirements for filing a second or successive petition. Considering the

petition [Dkt. 1], Respondent’s motion to dismiss [Dkt. 6] and supporting

brief [Dkt. 7], Harjo’s response [Dkt. 8], and applicable law, the Court finds

and concludes that Respondent’s motion to dismiss should be granted and

that Harjo’s petition should be dismissed without prejudice as an unauthor-

ized second or successive petition.

‘ Because Harjo appears without counsel, the Court liberally construes his filings.

Hail v. Bellmon, 935 F.2d 1106, 1110 (10th Cir 1991),

Case No. 24-cv-282

Nearly thirty years ago, Harjo, Mike Wilson, Billy Don Alverson, and

Darwin Brown robbed a local QuikTrip and murdered the store clerk, Richard

Yost. Dkt. 7-4 at 2.* Harjo was then sixteen years old. Dkt. 7-1 at 2. The State

charged each of the four men with capital murder under alternate theories of

first-degree malice murder and first-degree felony murder (count one), and

robbery with a dangerous weapon (count two). Dkt. 7-4 at 2; Dkt. 7 at 26-27.

Harjo and Alverson were tried conjointly by dual juries, i.e., each defendant

had a separate jury for the joint trial. Dkt. 7-4 at 2. Wilson and Brown were

tried conjointly in a separate, dual-jury trial. /d. at 3. Harjo’s jury found him

guilty of murder under both alternate theories and guilty of robbery. Dkt. 7-1

at 3. As recommended by the jury, the trial court sentenced Harjo to life with-

out parole for the murder and life for the robbery. Jd.

On direct appeal, the OCCA reversed and remanded, in part, with in-

structions for the trial court to dismiss the judgment and sentence for the rob-

bery conviction because Harjo could not be sentenced for both felony murder

and the underlying felony. /d. at 3-4. The OCCA affirmed the judgment and

LWOP sentence for the murder conviction, rejecting Harjo’s claims that (1)

the dual jury procedure utilized at his trial denied him a fair trial; (2) prose-

cutorial misconduct denied him a fair trial; and (3) the trial court improperly

excused a juror. /d. at 4-8. Harjo did not petition the United States Supreme

Court for a writ of certiorari. Dkt. 1 at 3. His judgment and sentence thus

became final on February 11, 1999, when the time expired for him to seek fur-

ther direct review. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Sup. Ct. R.

13.1; see also Majors v. State, 465 P.3d 223, 224 (Okla. Crim. App. 2020)

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

* Harjo’s codefendants also were convicted of both counts; each was sentenced to

death. Dkt. 7-1 at 2 n.1.

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(“Since Oklahoma confers a right of appeal via statute, a criminal conviction

is not final until the conclusion of the direct appeal.”).

Harjo petitioned for writ of habeas corpus under 28 U.S.C. § 2254 in

November 1999 (“1999 Petition”). Dkt. 7-4 at 4; see Harjo v. Oklahoma, No.

99-CV-0932-CVE. Harjo later amended his petition to assert two claims: (1)

the dual jury process denied him a fair trial; and (2) prosecutorial misconduct

denied him a fair trial. Dkt. 7-4, at 4. This court considered both claims on

the merits and denied the amended petition in March 2003. Jd.

Harjo first applied for state postconviction relief in June 2013. Dkt. 7-

5. He challenged his LWOP sentence as unconstitutional based the Supreme

Court’s holding in Miller v. Alabama, 567 U.S. 460, 479 (2012) that the Eighth

Amendment “forbids a sentencing scheme that mandates life in prison with-

out the possibility of parole for juvenile offenders.” Jd. He also asserted a

Sixth Amendment claim alleging that trial counsel was ineffective for failing

to: (1) object to his LWOP sentence, (2) present sufficient mitigating evidence

to persuade the jury to impose a lesser sentence, or (3) otherwise preserve his

Miller claim. Id. In October 2013, the state district court denied both claims

as procedurally barred, but also rejected the Miller claim on the merits. Dkt.

7-7.4 Harjo did not appeal. Dkt. 1 at 5.

Harjo again applied for state postconviction relief in May 2018. Dkt.

7-8. He again challenged his LWOP sentence as unconstitutional based on

Miller, but also cited and discussed more recent Supreme Court, Tenth Cir-

cuit, and OCCA decisions that held Miller retroactively applicable to cases on

‘ The state district court reasoned, in part, that Miller did not apply retroactively

on collateral review. Dkt. 7-7 at 11-13. It further reasoned, however, that Miller’s holding did

not help Harjo because Oklahoma permits but does not require an LWOP sentence for mur-

der and Harjo’s bifurcated jury trial, wherein the State sought the death penalty, permitted

the jury to exercise that discretion by considering Harjo’s mitigating evidence. Jd. at 13-16.

In 2016, the Supreme Court subsequently held that Miller does apply retroactively on col-

lateral review. Montgomery v. Alabama, 577 U.S. 190, 206 (2016).

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collateral review and that further explained Miller’s holding. Jd. Between Au-

gust 2018 and January 2023, Harjo supplemented his application four times

with new authority to support the Miller claim and with a supplemental claim

based on McGirt v. Oklahoma, 591 U.S. 894 (2020), alleging that the State

lacked jurisdiction to prosecute him because he is Indian, and he committed

murder in Indian country.* Dkts. 7-9, 7-11, 7-14, 7-16. In March 2023, the state

district court denied both claims, reasoning that Harjo’s LWOP sentence did

not violate the Eighth Amendment as interpreted in Miller and that McGirt

does not apply retroactively to void a conviction that was final before McGurt

was decided. Dkt. 7-17. Harjo appealed, and the OCCA affirmed the denial of

his second application for postconviction relief on June 16, 2023. Dkts. 7-18,

7-19.°

Harjo filed his petition here on June 13, 2024. He identifies five claims.

Three claims challenge the OCCA’s rejection of his Miller claim (claims one,

two, and three),’ one challenges the OCCA’s rejection of his McGirt claim

° In McGirt, the Supreme Court reviewed the OCCA’s denial of an Indian defend-

ant’s request for postconviction relief and reiterated the general rule that state courts “have

no jurisdiction to try Indians for conduct committed in ‘Indian country.’” 591 U.S. at 898

(citing Negonsett v. Samuels, 507 U.S. 99, 102-03 (1993)). The McGirt Court then held that

Congress had never disestablished the Muscogee (Creek) Nation Reservation and that, un-

der the Major Crimes Act, 18 U.S.C. § 1153(a), “[o]nly the federal government, not the

State, may prosecute Indians for major crimes committed in Indian country.” Jd. at 913,

932. In this case, the parties stipulated in state postconviction proceedings that Harjo com-

mitted murder in Indian country and that he is Indian. Dkt. 7-15.

° In affirming the denial of Harjo’s second application for postconviction relief, the

OCCA stated that the state district court properly applied state postconviction procedures

by considering the Miller and McGirt claims because “[e]ach of these claims was based on

an intervening change in the law.” Dkt. 7-19 at 3. In so doing, the OCCA acknowledged

Montgomery’s holding that Miller applies retroactively on collateral review. Jd.

7 The Court agrees with Respondent that claims one, two, three, and five should be

considered, collectively, as one Miller-based Eighth Amendment claim. Dkt. 7 at 16.

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(claim four), and one alleges he is “actually innocent” of his LWOP sentence

(claim five). Dkt. 1 at 6-34.

II

Respondent contends that the petition is an unauthorized second or

successive petition under 28 U.S.C. § 2244(b) and that it should be dismissed

for lack of jurisdiction. Dkt. 7 at 13-14. Respondent further contends that dis-

missal, rather than transfer to the Tenth Circuit for authorization, is appro-

priate because Harjo’s claims are barred by the applicable statute of limita-

tions in 28 U.S.C. § 2244(d)(1), even if the Court generously applies statutory

tolling under 28 U.S.C. § 2244(d)(2). /d. at 15-19. Harjo contends that his

petition is not subject to the procedural requirements of § 2244(b) or the stat-

ute of limitations in § 2244(d)(1). Dkt. 8 at 1. Alternatively, Harjo contends

that if the statute of limitations applies, his petition is timely. Dkt. 1 at 36-37;

Dkt. 8 at 3-7.

Harjo’s petition is an unauthorized second or successive petition. “A

state prisoner is entitled to one fair opportunity to seek federal habeas relief

from his conviction. But he may not usually make a ‘second or successive ha-

beas corpus application.’ 28 U.S.C. § 2244(b).” Banister v. Davis, 590 U.S.

504, 507 (2020); see also Panetti v. Quarterman, 551 U.S. 930, 947 (2007) (“In

the usual case, a petition filed second in time and not otherwise permitted by

the terms of § 2244 will not survive AEDPA’s ‘second or successive’ bar.”’).

Section 2244(b) provides, in relevant part,

(1) A claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior ap-

plication shall be dismissed.

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless—

Case No. 24-cv-282

(A) the applicant shows that the claim relies on a new

rule of constitutional law, made retroactive to cases on collat-

eral review by the Supreme Court, that was previously unavail-

able; or

(B)(i) the factual predicate for the claim could not have

been discovered previously through the exercise of due dili-

gence; and

(ii) the facts underlying the claim, if proven and viewed

in light of the evidence as a whole, would be sufficient to estab-

lish by clear and convincing evidence that, but for constitu-

tional error, no reasonable factfinder would have found the ap-

plicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by

this section is filed in the district court, the applicant shall move

in the appropriate court of appeals for an order authorizing the

district court to consider the application.

28 U.S.C. § 2244(b). “The court of appeals may authorize the filing of a sec-

ond or successive application only if it determines that the application makes

a prima facie showing that the application satisfies the requirements of [§

2244(b)(2)].” 28 U.S.C. § 2244(b)(3)(C). Ifa state prisoner does not obtain

permission from the court of appeals before filing a second or successive ha-

beas petition, the district court lacks jurisdiction to adjudicate the petition

and must either dismiss the petition or transfer the petition to the court of

appeals for authorization. Jn re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008)

(per curiam).

Citing Harjo’s 1999 Petition, Respondent contends that the Petition is

an unauthorized second or successive petition that should be dismissed for

lack of jurisdiction. Dkt. 7 at 13-14. The record supports that Harjo sought

relief under § 2254 through the 1999 Petition and does not show that he either

Case No. 24-cv-282

sought or obtained permission from the Tenth Circuit to file the instant Peti-

tion.

But § 2244(b)’s procedural requirements only apply to petitions that

are “second or successive,” and the Supreme Court “‘has declined to inter-

pret ‘second or successive’ as referring to all § 2254 applications filed second

or successively in time, even when the later filings address a state-court judg-

ment already challenged in a prior § 2254 application.” Panetti, 551 U.S. at

944; see also Magwood v. Patterson, 561 U.S. 320, 335 n.11 (2010) (“This case

does not require us to determine whether § 2244(b) applies to every applica-

tion filed by a prisoner in custody pursuant to a state-court judgment if the

prisoner challenged the same state-court judgment once before.”). But see

Burton v. Stewart, 549 U.S. 147, 153, 156 (2007) (concluding second-in-time

habeas petition was “second or successive” under § 2244(b) because state

prisoner “twice brought claims contesting the same custody imposed by the

same judgment of a state court” through a 1998 petition and a 2002 petition,

and “there was no new judgment intervening between the two habeas peti-

tions”).

Instead, the Supreme Court has teased out the meaning of the phrase

“second or successive” largely by identifying petitions that are not second or

successive. For example, the Supreme Court “determined that a habeas peti-

tion filed after an initial petition was dismissed” for failure to exhaust availa-

ble state remedies “without an adjudication on the merits is not a ‘second or

successive’ petition.” Slack v. McDaniel, 529 U.S. 473, 489 (2000). In the

death penalty context, the Supreme Court held that a second or subsequent

habeas petition asserting a Ford claim® is not second or successive: (1) if the

® A Ford claim is a claim asserted under Ford v. Wainwright, 477 U.S. 399 (1986),

alleging that a prisoner who was found competent to be tried, convicted, and sentenced to

death should not be executed because his present mental condition has deteriorated to the

Case No. 24-cv-282

Ford claim previously was presented in a first habeas petition and that claim

was dismissed as unripe or “premature,” Stewart v. Martinez-Villareal, 523

U.S. 637, 643 (1998); or (2) if the Ford claim is presented for the first time in

a second or subsequent habeas petition filed after the Ford claim first becomes

ripe, Panetit, 551 U.S. at 947. And the Magwood Court explained that when a

second or subsequent habeas petition “challenges a new judgment for the first

time, it is not ‘second or successive’ under § 2244(b).” Magmood, 561 U.S. at

324; see also Burton, 549 U.S. at 155-56 (rejecting petitioner’s argument “that

his 1998 and 2002 petitions challenged different judgments” because peti-

tioner was in state custody pursuant to the same 1998 judgment when he filed

each petition and “there was no new judgment intervening between the two

habeas petitions”’).

Harjo’s petition does not fit within any of the above-described excep-

tions to second or successive petitions. Unlike the petition in Slack, Harjo’s

1999 Petition was denied on the merits, not dismissed for failure to exhaust

available state remedies. Dkt. 7-4. Unlike the petitioners in Stewart and Pan-

etti, Harjo is not reasserting claims presented in his 1999 Petition and dis-

missed as unripe or asserting new claims not presented in the 1999 Petition

that did not ripen until after the conclusion of his first habeas proceeding.

And unlike the petitioner in Magwood, Harjo does not bring this petition to

attack a new, intervening judgment. Rather, like the petitioner in Burton,

Harjo brings a second-in-time petition to challenge the same state-court judg-

ment he challenged through the 1999 Petition. The Court thus finds that the

petition is a second or successive petition and is subject to the procedural re-

quirements in § 2244(b).

point of rendering him incompetent and therefore ineligible to be executed. Panett?, 551 U.S.

at 935.

Case No. 24-cv-282

Harjo’s petition does, however, present new claims. And in limited

circumstances, a district court may consider claims brought in a second or

successive petition if those claims were not presented in a prior petition. 28

U.S.C. § 2244(b)(2). But even assuming one or more of Harjo’s new claims

might fall within § 2244(b)(2)’s narrow exceptions, Harjo must first present

his claims to the Tenth Circuit and make a prima facie showing that his claims

fall within those exceptions, and the Tenth Circuit must grant him permission

to file a second or successive petition before this Court may consider Harjo’s

new claims. 28 U.S.C. § 2244(b)(3)(A); see also Case v. Hatch, 731 F.3d 1015,

1026-27 (10th Cir. 2013) (discussing § 2244(b)’s “gate-keeping require-

ments” and explaining that “§ 2244 requires an applicant to pass through two

gates,” first by making a prima facie showing in the court of appeals, and sec-

ond by making an evidentiary showing in district court). If Harjo does not

obtain authorization from the Tenth Circuit, this Court does not have juris-

diction to adjudicate any claims raised in his second or successive petition.

See Cline, 531 F.3d at 1251 (‘A district court does not have jurisdiction to ad-

dress the merits of a second or successive . . . § 2254 claim until [the court of

appeals] has granted the required authorization.” Harjo does not argue that

he obtained authorization from the Tenth Circuit to file this petition. Dkt. 1,

generally. Instead, he affirmatively and incorrectly states that he has not pre-

viously filed a habeas petition challenging the same judgment that he chal-

lenges through the petition. Jd. at 36. And he mistakenly argues that he is not

required to obtain authorization. Dkt. 8. On the record presented, the Court

thus finds that Harjo’s petition is an unauthorized second or successive peti-

tion.

The only remaining question is whether the petition should be dis-

missed or transferred to the Tenth Circuit for authorization. Cline, 531 F.3d

Case No. 24-cv-282

at 1251-52. Respondent argues dismissal is more appropriate because Harjo’s

claims are barred by the one-year statute of limitations. The Court agrees.

State prisoners face a one-year statute of limitations for seeking federal

collateral review of a state-court judgment under 28 U.S.C. § 2254. The lim-

itations period “run[s] from the latest of” one of four dates. But different

claims raised in the same petition may implicate different dates. See Prender-

gast v. Clements, 699 F.3d 1182, 1187 (10th Cir. 2012) (explaining that Ҥ

2244(d)(1) should be applied on a claim-by-claim basis”); see also Pace v.

DiGuglielmo, 544 U.S. 408, 416 n.6 (2005) (“[Section] 2244(d)(1) provides

that a ‘1-year period of limitation shall apply to an application for a writ of

habeas corpus.’ (Emphasis added.) The subsection then provides one means

of calculating the limitation with regard to the ‘application’ as a whole, §

2244(d)(1)(A) (date of final judgment), but three others that require claim-by-

claim consideration, § 2244(d)(1)(B) (governmental interference); §

2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual

predicate).”). Regardless of which event triggers the commencement of the

limitations period, that 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). Federal courts also may toll the limitations period for equitable

reasons, Holland v. Florida, 560 U.S. 631, 645 (2010), and may excuse non-

compliance with the statute of limitations if the petitioner asserts a credible

claim of actual innocence, McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).

Two limitations period are relevant here. Applying those limitations

periods to the facts of this case shows that Harjo’s claims are time-barred,

Case No. 24-cv-282

and Harjo’s assertion of actual innocence does not excuse the untimeliness

of his claims.?

First, and in most cases, a prisoner must file his habeas petition within

one year from “the date on which the judgment became final by the conclu-

sion of direct review or the expiration of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A). Subsection (d)(1)(A) applies to Harjo’s McGirt

claim. See Pacheco v. Habti, 62 F.4th 1233, 1245 (10th Cir. 2023) (“When Con-

gress enacted the limitations period in AEDPA, it discerned no reason to pro-

vide a blanket exception for jurisdictional claims.”); Owens v. Whitten, No.

22-5106, 2022 WL 17972141, at *1 (10th Cir. Dec. 28, 2022) (noting that case

law in this circuit “make[s] clear” that “the one-year limitations period set

out in § 2244(d)(1)(A), rather than the ones set out in § 2244(d)(1)(C) and/or

(D), applies to McGirt-based challenges to the validity of state convictions”).

Harjo’s McGirt claim is untimely. As previously stated, Harjo’s judg-

ment became final in February 1999. He had one year, or until February 2000

to file timely a federal habeas petition. He did file a timely habeas petition,

but he did not challenge the state court’s jurisdiction to prosecute him for a

crime he committed in Indian country. Dkt. 7-4."° And the untimely McGzrt

claim cannot be made timely through statutory tolling. Harjo’s 1999 Petition

° Respondent liberally construes Harjo’s petition as also asserting an argument for

equitable tolling based on Harjo’s allegation that his postconviction counsel abandoned him

after the state district court denied his first application for postconviction for relief. Dkt. 7

at 20-22. Even if the Court were to agree with Respondent’s generous construction of

Harjo’s petition, the Court finds that Harjo has not shown that equitable tolling renders his

petition timely.

© Admittedly, McGirt did not hold until 2020 that portions of Oklahoma are Indian

country. But the McGirt Court cited a 1993 Supreme Court decision for the proposition that

states generally lack jurisdiction to prosecute Indians for certain crimes committed in In-

dian country. See supra, n.5. Thus, even in 1999, it would have been possible for Harjo to

challenge the State’s exercise of criminal jurisdiction.

Case No. 24-cv-282

did not toll the limitations period. See Rhines v. Weber, 544 U.S. 269, 272

(2005) (noting that the statute of limitations is not tolled during the pendency

of a federal petition). And Harjo’s postconviction applications filed in state

court in 2013 and 2018 did not toll the limitations period because he filed

those applications more than a decade after his limitations period under §

2244(d)(1)(A) expired in February 2000. See Clark ». Oklahoma, 468 F.3d 711,

714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed

within the one year allowed by AEDPA will toll the statute of limitations.”’).

Further, Harjo’s assertion that he is actually innocent does not excuse the

untimeliness of the McGirt claim for two reasons. First, Harjo does not assert,

or provide evidence suggesting, that he did not commit the murder for which

he was convicted; rather, his professed “‘actual innocence” rests on his legal

claim that he cannot be sentenced to LWOP for a murder he committed when

he was a juvenile. Dkt. 1 at 28-34. Second, to the extent his assertion of actual

innocence rests on the alleged absence of jurisdiction in the convicting court,

that assertion too implicates legal innocence, not factual innocence. Pacheco,

62 F.4th at 1242-46. For these reasons, the Court finds it would not serve the

interests of justice to transfer the McGirt claim to the Tenth Circuit for au-

thorization.

Second, and less frequently, a prisoner must file his habeas petition

within one year from “the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been newly recog-

nized by the Supreme Court and made retroactively applicable to cases on

collateral review.” Jd. § 2244(d)(1)(C). Subsection (d)(1)(C) applies to

Harjo’s Miller claim because the Supreme Court held in Montgomery that Mil-

ler should be applied retroactively to cases on collateral review. But Harjo’s

Miller claim also is untimely.

Case No. 24-cv-282

Critically, the one-year limitations period under § 2244(d)(1)(C) be-

gins to run on the date the Supreme Court initially recognizes the constitu-

tional right asserted, not on the date the newly recognized right is made ret-

roactively applicable to cases on collateral review. See Dodd v. United States,

545 U.S. 353, 357 (2005). In Dodd, the Supreme Court considered when the

one-year limitations period for filing a 28 U.S.C. § 2255 motion to vacate a

sentence begins to run under § 2255, J 6(3)—a provision nearly identical to §

2244(d)(1)(C). Dodd, 545 U.S. at 356-57. The Dodd Court expressly rejected

the argument that the one-year limitations period “runs from the date on

which the right asserted was made retroactively applicable.” Jd. at 357. Ra-

ther, the Dodd Court held, the plain language of the provision “unequivocally

identifies one, and only one, date from which the 1-year limitation period is

measured: ‘the date on which the right asserted was initially recognized by

the Supreme Court.’” Jd. The Dodd Court recognized this interpretation of

the statute created “the potential for harsh results in some cases,” but rea-

soned that it was “not free to rewrite the statute that Congress has enacted.”

Id. at 359.

As previously stated, four of Harjo’s claims rely on the substantive rule

announced in Miller, and made retroactively applicable by Montgomery, to ar-

gue that his LWOP sentence imposed for a murder he committed as a juvenile

violates the Eighth Amendment. Dkt. 1 at 6-23, 28-33. Applying Dodd’s ra-

tionale, Harjo’s one-year limitations period under § 2244(d)(1)(C) began on

June 26, 2012, the day after Miller was decided, and would have expired on

June 26, 2013. See Dodd, 545 U.S. at 357. Harjo tolled this limitations period

on June 21, 2013—nearly one year after it began and with only five days left

before the expiration of his one-year limitations period—when he filed his

first application for postconviction relief. Dkt. 7 at 18-19; 28 U.S.C. §

2244(d)(2). But the state district court denied that application on October 1,

2013, and Harjo did not appeal. Dkt. 7-7. Thus, his limitations period began

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running again on November 2, 2013, when the thirty-day period to file a no-

tice of appeal expired, and his one-year limitations period expired five days

later, on November 7, 2013. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir.

2000) (holding that “regardless of whether a petitioner actually appeals a de-

nial of a post-conviction application, the limitations period is tolled during

the period in which the petitioner could have sought an appeal under state

law” (emphasis in original)). Harjo’s second application for postconviction

relief, filed in 2018, was filed too late to toll his already expired one-year lim-

itations period. Clark, 468 F.3d at 714. The Miller claim therefore is untimely.

Harjo resists this conclusion for two reasons. First, he appears to argue

that he had one state postconviction proceeding pending in state court for ten

years—between June 21, 2013, when he filed his first application for postcon-

viction relief, and June 16, 2023, when the OCCA affirmed the denial of his

second application for postconviction relief—and that he thus had one year

from June 16, 2023, to file a timely habeas petition. Dkt. 1 at 36-37; Dkt. 8 at

3-4. Arguably, the record of state court proceedings could be viewed as sup-

porting Harjo’s apparent view that the state courts treated his second appli-

cation as an amended or supplemented version of his first application." But

as Respondent contends, even if the record supports Harjo’s view that his

state postconviction proceeding spanned a decade, the fact remains that

Harjo had only five days left of his one-year limitations period after the OCCA

affirmed the denial of his second application for postconviction relief on June

16, 2023. Harjo’s limitations period under § 2244(d)(1)(C) thus began to run

again on June 17, 2023, and expired on June 22, 2023. Thus, even generously

applying statutory tolling principles, the limitations period applicable to

" Conversely, the record could also be viewed as acknowledging that the state dis-

trict court rejected Harjo’s Miller claim before the Supreme Court made Miller retroactively

applicable to cases on collateral review and that Montgomery, as well as intervening OCCA

decisions applying Montgomery, supported revisiting Harjo’s Miller claim. Under either

construction of the state court record, the Miller claim is time-barred.

Case No. 24-cv-282

Harjo’s Miller claim has expired. His claim is untimely because he did not file

the petition until June 13, 2024, nearly one year after the limitations period

expired.

Second, Harjo appears to argue that the Supreme Court’s decision in

Jones v. Mississippi, 493 U.S. 98 (2021), announced a new rule of substantive

and procedural law while his second application for postconviction relief was

pending, and, thus, provided him a later-commencing limitations period un-

der § 2244(d)(1)(C). Dkt. 1 at 36-37; Dkt. 8 at 5-6. But Jones did not recognize

a new constitutional right. Instead, Jones restated Miller’s holding that “an

individual who commits a homicide when he or she is under 18 may be sen-

tenced to life without parole, but only if the sentence is not mandatory and

the sentencer therefore has discretion to impose a lesser punishment.” Jones,

593 U.S. at 100. And Jones clarified that although Mz/ler requires “that a sen-

tencer follow a certain process—considering an offender’s youth and at-

tendant characteristics—before imposing” an LWOP sentence, Miller and

Montgomery both “squarely rejected” the proposition (advanced by the peti-

tioner in Jones) that “the sentencer must also make a separate factual finding

of permanent incorrigibility before sentencing a murderer under 18 to life

without parole.” Jones, 493 U.S. at 101, 106. As Respondent contends, Jones

thus did not provide Harjo with a new, later limitations period under §

2244(d)(1)(C) and does not make his Mi//er claim timely.

Third, to the extent Harjo’s assertion that he is “actually innocent” of

his LWOP sentence could be construed as invoking Perkins’s equitable excep-

tion to excuse the untimeliness of the Miller claim, that exception does not

apply. As previously discussed, Harjo asserts he is “actually innocent” based

on his view that his LWOP sentence violates the Eighth Amendment. Dkt. 1

at 28-33. The Perkins exception, though, focuses on factual innocence, not

legal innocence. Pacheco, 62 F.4th at 1241-46. Harjo has not shown that this

exception applies to excuse the untimeliness of his Miller claim.

Case No. 24-cv-282

Il

The Court concludes that Harjo’s petition is an unauthorized second

or successive petition, that Harjo’s claims are barred by the statute of limita-

tions, and that his petition should be dismissed, without prejudice, for lack of

jurisdiction rather than transferred to the Tenth Circuit for authorization to

file a second or successive petition.’” Further, because the absence of jurisdic-

tion to adjudicate the Petition is a plain procedural bar to relief, the Court

declines to issue a certificate of appealability. Slack, 529 U.S. at 484.

IT IS ORDERED that (1) Respondent’s motion to dismiss [Dkt. 6]

is granted; (2) Harjo’s petition [Dkt. 1] is construed as an unauthorized sec-

ond or successive petition and is dismissed, without prejudice, for lack of ju-

risdiction; (3) Harjo’s request for an evidentiary hearing is denied; (4) a cer-

tificate of appealability is denied; and (5) a separate judgment of dismissal

shall be entered in this matter.

DATED this 7th day of February 2025.

JouN D. RUSSELL

United States District Judge

® Because this Court lacks jurisdiction to adjudicate the petition, the Court denies

Harjo’s request for an evidentiary hearing, see Dkt. 1 at 33.