Harjo v. Drummond

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ROY D. HARJO, )

)

Petitioner, )

)

v. ) Case No. CIV-25-266-R

)

GENTNER F. DRUMMOND, )

)

Respondent(s). )

REPORT AND RECOMMENDATION

Petitioner Roy D. Harjo (“Petitioner”), a state prisoner proceeding pro se,1 seeks a

Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1).2 United States District Judge

David L. Russell referred the matter to the undersigned Magistrate Judge for initial

proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5). For the reasons set

forth below, the undersigned recommends that Petitioner’s application for habeas relief be

DISMISSED with prejudice as time-barred.

I. Screening Requirement

The court is required to promptly examine and summarily dismiss habeas petitions

prior to any answer or other pleading by the state, “[i]f it plainly appears from the petition

1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard

than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot

serve as Petitioner’s advocate, creating arguments on his behalf. See Yang v. Archuleta, 525

F.3d 925, 927 n.1 (10th Cir. 2008).

2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF

pagination.

and any attached exhibits that the petitioner is not entitled to relief.” Rule 4, Rules

Governing § 2254 Cases. As part of this screening authority, the court may address the

issue of timeliness. See Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts

are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s

habeas petition.”); Kilgore v. Att’y Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008)

(holding a court may dismiss a petition if “untimeliness is clear from the face of the

petition”). “[B]efore acting on its own initiative, a court must accord the parties fair notice

and an opportunity to present their positions.” Day, 547 U.S. at 210. Petitioner has an

opportunity to be heard on the issue by filing a timely objection to this Report and

Recommendation. See Smith v. Dorsey, 1994 WL 396069, at *3 (10th Cir. July 29, 1994)

(finding “no due process problem” where magistrate judge raised issue of procedural bar

sua sponte and petitioner had opportunity to object to report and recommendation prior to

district court’s adoption thereof) (citing Hardiman v. Reynolds, 971 F.2d 500, 502-05 (10th

Cir. 1992)).

II. Procedural History

On September 17, 2018, in the Pottawatomie County District Court, Petitioner

entered a blind plea to one count of assault and battery with a deadly weapon and four

counts of assault with a dangerous weapon. (Doc. 1, at 1-2); see also Pottawatomie County

District Court, Case No. CF-2017-665.3 The Pottawattamie County District Court

3https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&number=CF

-2017-00665&cmid=7899971 (Docket Sheet) (last visited May 28, 2025). The undersigned

takes judicial notice of the docket sheets and related documents in Petitioner’s state

criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir.

sentenced Petitioner to life imprisonment on all counts. (Doc. 1, at 1); Pottawatomie

County District Court, Case No. CF-2017-665, supra note 3. Petitioner timely moved to

withdraw his guilty plea, but the trial court denied the motion. Pottawatomie County

District Court, Case No. CF-2017-665, supra note 3. Petitioner then timely filed a petition

for a writ of certiorari with the Oklahoma Court of Criminal Appeals (“OCCA”), and the

OCCA denied the petition on August 29, 2019. (Doc. 1, at 2); OCCA, C-2018-1235.4

On July 30, 2020, Petitioner filed an Application for Post-Conviction Relief in the

Pottawatomie County District Court asserting that the court lacked jurisdiction over his

case pursuant to McGirt v. Oklahoma, 591 U.S. 894 (2020). (Doc. 1, at 3); Pottawatomie

County District Court, Case No. CF-2017-665, supra note 3. On September 18, 2023,

Petitioner sought a writ of mandamus from the OCCA, requesting that the OCCA order the

Pottawatomie County District Court to rule on his Application. See OCCA, Case No. MA-

2023-781.5 The OCCA directed the Pottawatomie County District Court to rule on the

Application within thirty days if it had not already done so. Id. On October 12, 2023, the

Pottawatomie County District Court denied the Application under State ex rel. Matloff v.

Wallace, 497 P.3d 686 (Okla. Crim. App. 2021), as Petitioner’s conviction was final when

2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court

and certain other courts concerning matters that bear directly upon the disposition of the

case at hand”) (citation omitted).

4 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=C-

2018-1235&cmid=125413 (Docket Sheet) (last visited May 28, 2025).

5 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-

2023-781&cmid=136198 (Docket Sheet) (last visited May 28, 2025)

McGirt was decided. (Doc. 1, at 3); Pottawatomie County District Court, Case No. CF-

2017-665, supra note 3. Petitioner timely filed a notice of post-conviction appeal but failed

to timely file a petition in error and supporting brief. Pottawatomie County District Court,

Case No. CF-2017-665, supra note 3.

On January 18, 2024, Petitioner filed a second Application for Post-Conviction

Relief, requesting permission to appeal the denial of his first Application out of time. Id.

The Pottawatomie County District Court recommended allowing the appeal out of time,

id., and the OCCA granted the request, OCCA, Case No. PC-2024-74.6 Petitioner filed his

post-conviction appeal, and the OCCA affirmed the lower court’s denial of his first

Application on May 31, 2024. (Doc. 1, at 24); OCCA, Case No. PC-2024-130.7 Petitioner

filed a petition for a writ of certiorari with the United States Supreme Court on August 16,

2024, and the Supreme Court denied the petition on November 18, 2024. (Doc. 1, at 4);

Supreme Court of the United States, Case No. 24-5552.8

III. The Petition

On February 27, 2025, Petitioner filed the instant Petition, challenging his

Pottawatomie County convictions and sentences pursuant to McGirt and other related

6 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-

2024-74&cmid=137002 (Docket Sheet) (last visited May 28, 2025).

7 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-

2024-130&cmid=137132 (Docket Sheet) (last visited May 28,2025).

8https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24

-5552.html (Docket Sheet) (last visited May 28, 2025).

authorities. (Doc. 1, at Ex. 1).9 In Ground One, Petitioner states that he is an “[e]nrolled

member of Muscogee (Creek) Nation of Oklahoma, since 1983, blood degree 7/8.” (Id. at

5). In Ground Two, Petitioner argues that the “District Court of Pottawatomie County

lack[s] jurisdiction and sovereign authority to prosecute Petitioner and Native Americans.”

(Id. at 6). In Ground Three, Petitioner states that “all Eastern Oklahoma is Indian County

under Major Crime Act and General Crime Act” and that “authority belongs to the United

States.” (Id. at 8). Petitioner also filed a Brief in Support of his Petition providing

additional argument for the grounds above. (See Doc. 2). In the Brief, Petitioner also

argues that his counsel provided ineffective assistance during his preliminary hearing and

that his counsel provided ineffective assistance during his post-conviction proceedings.

(Id. at 15-17).

IV. Analysis

A. AEDPA’s One-Year Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established

a one-year limitations period for federal habeas claims by petitioners in state custody. 28

U.S.C. § 2244(d)(1). The limitations period runs from the latest of:

(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;

9 See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison

mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).

(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.

Id. AEDPA includes a tolling provision for properly filed post-conviction actions:

The time during which a properly filed application for State postconviction

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.

Id. at § 2244(d)(2).

B. The Petition Should Be Dismissed Because It Is Untimely.

1. The Petition Is Untimely Under § 2244(d)(1)(A).

Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he

limitations period generally runs from the date on which the state judgment became final[,]

. . . but is tolled during the time state post-conviction review is pending.” Preston v.

Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)).

Since Petitioner timely moved to withdraw his guilty plea and timely appealed the denial

of the motion with the OCCA, but did not seek review by the United States Supreme Court,

his judgment became final when the time to file a petition for certiorari passed. Jones v.

Patton, 619 F. App’x 676, 678 (10th Cir. 2015); Locke v. Saffle, 237 F.3d 1269, 1273 (10th

Cir. 2001). A petition for certiorari must be filed with the United States Supreme Court

within 90 days of the entry of judgment by the state court of last resort. Sup. Ct. R. 13(1).

The OCCA affirmed the state district court on August 29, 2019, so Petitioner’s judgment

became final 90 days later, on November 27, 2019. The one-year statute of limitations

began the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Thus,

prior to any tolling event, Petitioner’s deadline to file his habeas petition was November

28, 2020. See id. (noting the limitations period began the day after the judgment became

final and ended one year later on the same day).

The statute of limitations ran until Petitioner filed his first Application for Post-

Conviction Relief on July 30, 2020, which was 120 days before the end of the limitations

period. The limitations period was tolled while the first Application was pending before

the state district court and during the window in which Petitioner could have appealed the

state district court’s denial of his first Application. See Gibson v. Klinger, 232 F.3d 799,

804 (10th Cir. 2000) (“[W]e hold today that, regardless of whether a petitioner actually

appeals a denial 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.”). In

Oklahoma, a party appealing the disposition of a post-conviction application regarding a

non-capital felony must submit a petition in error and supporting brief to the OCCA within

sixty days of the state district court’s final order. OCCA Rule 5.2(C). The Pottawatomie

County District Court denied Petitioner’s Application on October 12, 2023, so Petitioner

had until December 11, 2023, to appeal the denial to the OCCA. Since Petitioner did not

file an appeal during this sixty-day window, the statute of limitations resumed running on

December 12, 2023.

The limitations period then ran for thirty-seven more days, until January 18, 2024,

when Petitioner filed his second Application for Post-Conviction relief in which he sought

an appeal out of time. See Gibson, 232 F.3d at 804-05, 807 (holding that statute of

limitations runs between end of appeal window and the filing of an application to appeal

out of time). The statute of limitations was tolled during the pendency of the second

Application before the state district court and the OCCA. Since the OCCA granted the

second Application, and Petitioner timely filed the materials needed to appeal the denial of

the first Application, the limitations period remained tolled until the OCCA ruled on the

appeal. See id. at 807.

The OCCA affirmed the state district court’s denial of the first Application on May

31, 2024. The limitations period resumed running the next day, on June 1, 2024. Petitioner

timely filed a petition for a writ of certiorari with the United States Supreme Court, but

such an event does not toll the statute of limitations. Lawrence v. Florida, 549 U.S. 327,

332 (2007) (“The application for state postconviction review is therefore not ‘pending’

after the state court’s postconviction review is complete, and § 2244(d)(2) does not toll the

1–year limitations period during the pendency of a petition for certiorari.”). Furthermore,

Petitioner has not argued that equitable tolling should apply, nor has he alleged

extraordinary circumstances suggesting that equitable tolling is appropriate. Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking equitable tolling

bears the burden of establishing two elements: (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way.”). Thus, the

statute of limitations ran for the remaining eighty-three days, until August 23, 2024, when

it expired. Since Petitioner filed this habeas action on February 27, 2025, over six months

after the expiration of the statute of limitations, the Petition is untimely under §

2244(d)(1)(A).

2. Section 2244(d)(1)(C) Is Not Applicable Because McGirt Did Not

Recognize a New Constitutional Right.

Section 2244(d)(1)(C) allows the statute of limitations to run from “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.” However, as the Tenth Circuit has clearly stated,

“McGirt announced no new constitutional right” and thus does not allow Petitioner

additional time to file his habeas petition under § 2244(d)(1)(C). Pacheco v. Habti, 62

F.4th 1233, 1246 (10th Cir.), cert. denied, 143 S. Ct. 2672, 216 L. Ed. 2d 1245 (2023).

Rather, McGirt, “self-professedly resolved a question of ‘statutory interpretation,’

surveying many ‘treaties and statutes,’ to determine that ‘[t]he federal government

promised the Creek a reservation in perpetuity’ and ‘has never withdrawn the promised

reservation.’ The opinion addressed the United States Constitution only to explain

Congress’s exclusive authority to disestablish Indian reservations.” Id. (quoting McGirt,

140 S.Ct. at 2474, 2476, 2482). Because § 2244(d)(1)(C) does not apply in this case, and

Petitioner does not allege facts implicating §§ 2244(d)(1)(B) or (D), Petitioner’s action is

untimely.

V. Recommended Ruling and Notice of Right to Object

For the reasons discussed above, the undersigned recommends that the Petition for

a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice

as time-barred. Brown v. Roberts, 177 F. App’x 774, 778 (10th Cir. 2006) (“Dismissal

of a [§ 2254 habeas] petition as time barred operates as a dismissal with prejudice[.]’).

The undersigned advises Petitioner of his right to object to this Report and

Recommendation by June 18, 2025, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

72(b)(2). The undersigned further advises the Petitioner that failure to make timely

objection to this report and recommendation waives his right to appellate review of both

factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991).

This Report and Recommendation disposes of all issues and terminates the referral

to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 28" day of May, 2025.

UNITED STATES MAGISTRATE JUDGE

10