Pickens

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

DARRIN LYNN PICKENS,

Petitioner,

v. Case No. 25-CV-0022-SEH-CDL

SCOTT TINSLEY, Interim

Warden,1

Respondent.

OPINION AND ORDER

Petitioner Darrin Lynn Pickens (“Pickens”), appearing pro se, brings this

action pursuant to 28 U.S.C. § 2254, seeking federal habeas relief from the

judgment entered against him in the District Court of Tulsa County, Case

No. CF-1990-717. [ECF No. 1 at 1].2 Respondent Scott Tinsley

(“Respondent”) moves to dismiss the Petition for Writ of Habeas Corpus

(“Petition”), arguing this Court lacks jurisdiction to adjudicate the Petition

because it is an unauthorized second or successive petition or, in the

alternative, the Court should dismiss the Petition as time barred. [ECF Nos.

1 Pickens is incarcerated at Dick Conner Correctional Center, and Scott

Tinsley is the Interim Warden of that facility. The Court therefore

substitutes Scott Tinsley, Interim Warden, in place of Randy Harding as

party Respondent. See Rule 2(a), Rules Governing Section 2254 Cases in the

United States District Courts. The Clerk of Court shall note on the record this

substitution.

2 The Court’s citations refer to the CM/ECF header pagination.

10 and 11]. Pickens did not file a response. For the following reasons, the

Court finds it possesses jurisdiction to adjudicate the Petition, but the

Petition is time-barred. Therefore, as explained below, the Court grants, in

part, and denies, in part, Respondent’s Motion to Dismiss and dismisses the

Petition with prejudice.

BACKGROUND

I. State court proceedings

In 1990, Pickens was convicted by a Tulsa County jury of first-degree

felony murder, and robbery with a firearm, shooting with intent to kill, and

assault with intent to kill, all after former conviction of a felony. [ECF No.

11-2 at 2-3, 10-11]; see Pickens v. Gibson, 206 F.3d 988, 992-93 (10th Cir.

2000). Pickens was sentenced to death on the felony murder conviction and

fifty years’ imprisonment for the robbery, and ninety-nine years each for

assault and shooting with intent to kill. Pickens, 206 F.3d at 993. The

Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the convictions and

sentences on direct appeal. Pickens v. State, 850 P.2d 328 (Okla. Crim. App.

1993), cert. denied 510 U.S. 1100 (1994). The OCCA also affirmed the denial

of state post-conviction relief. Pickens v. State, 910 P.2d 1063 (Okla. Crim.

App. 1996).

II. Initial federal habeas proceeding

Pickens filed a habeas petition in this court in 1996, challenging his first-

degree felony murder conviction and death sentence. [ECF No. 11-3 at 2]; see

Pickens v. Buss, Case No. 96-CV-984-GKF-CDL. This court denied the 1996

petition and granted a certificate of appealability on four issues: 1) Pickens’s

post-arrest statement was unconstitutionally obtained; 2) the trial court

admitted an unconstitutionally obtained videotaped confession from a

separate case during sentencing; 3) prosecutorial misconduct; and 4)

ineffective assistance of trial counsel. [ECF No. 11-3 at 4-5]; see also Pickens,

206 F.3d at 992. The United States Court of Appeals for the Tenth Circuit

(“Tenth Circuit”) affirmed Pickens’s convictions but vacated his death

sentence based on the admission of the unconstitutionally obtained

videotaped confession from a separate case during sentencing. Pickens, 206

F.3d at 992, 996-97.

In 2001, Pickens was resentenced in state court. [ECF No. 11-6 at 2].

“Pursuant to negotiations of the parties, [Pickens] waived his right to jury

trial” and “was then sentenced to life without parole.” [Id.]. “The sentence

was ordered to be served consecutively with the sentences previously imposed

for Counts I, II, and III, and with his death sentence in Creek County District

Court Case No. CF-1990-66[3].” [Id.]. Pickens did not file a direct appeal in

state court to challenge the 2001 judgment. [ECF No. 11-2 at 23-24].

III. Subsequent federal habeas proceedings

Following the entry of the 2001 judgment, Pickens has returned to federal

court multiple times. In 2009, Pickens filed a petition for writ of habeas

corpus in this court. [ECF No. 11-9]; see Pickens v. Workman, Case No. 09-

CV-361-JHP-PJC, 2009 WL 2163109 at *1 (N.D. Okla. July 20, 2009). This

court determined the 2009 petition was a second or successive § 2254 petition

filed without prior authorization from the Tenth Circuit and dismissed the

petition for lack of jurisdiction. [ECF No. 11-10]. In 2013, Pickens sought

authorization from the Tenth Circuit to file a successive petition. [ECF No.

11-11]. The Tenth Circuit denied Pickens’s request based on Pickens’s

concession that he was not relying on a new and retroactively applicable rule

3 Pickens was also convicted by a Creek County jury of first-degree murder

and feloniously pointing a firearm stemming from a separate armed robbery

of a convenience store. See State v. Pickens, Case No. CF-1990-66 (Creek

Cnty.); see also Pickens v. State, 126 P.3d 612, 613 (Okla. Crim. App. 2005).

The jury sentenced Pickens to death on the murder conviction and ten years

imprisonment on the feloniously pointing a firearm. Pickens, 126 P.3d at

613. The Creek County death sentence was also ultimately vacated and

modified to life imprisonment without the possibility of parole. Id. at 621.

of constitutional law or on clear and convincing newly discovered evidence of

his innocence. [Id.].

Next, in 2022, Pickens returned to this court and filed multiple motions in

his 1996 habeas action seeking relief from judgment, under Federal Rule of

Civil Procedure 60(b). [ECF Nos. 11-12, 11-14]. Each motion was denied as

an unauthorized second or successive habeas petition. [ECF Nos. 11-13, 11-

17]. In February 2023, Pickens returned to the Tenth Circuit requesting

authorization to file a Rule 60(b) motion. [ECF No. 11-20]. The Tenth

Circuit noted it has “no authority to pre-screen nominal Rule 60(b) motions to

decide if they are true Rule 60(b) motions[.]” [Id. at 2]. The Tenth Circuit

denied the motion for authorization as unnecessary. [Id. at 3].

In this court, Pickens filed two more Rule 60(b) motions in the 1996

habeas action in March and April 2023. [ECF Nos. 11-15, 11-16]. Once

again, this court construed these motions as unauthorized second or

successive habeas petitions and dismissed them for lack of jurisdiction. [ECF

Nos. 11-18, 11-19].

Pickens returned to the Tenth Circuit in April 2024 and again requested

authorization to file a second or successive habeas petition. [ECF No. 11-21

at 2]. Pickens specifically requested authorization to present his claim that

the state suppressed exculpatory DNA evidence. [Id. at 2-3]. The Tenth

Circuit denied Pickens’s request, noting that Pickens failed to meet the

requirement that the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence. [Id. at 3].

IV. November 2024 request for authorization

Undeterred, Pickens filed another request for authorization to file a

second or successive habeas petition in November 2024. [ECF No. 11-24].

Pickens once again requested authorization to present his claim that the

prosecution suppressed exculpatory DNA evidence and testimony favorable to

his defense. [Id.]. In adjudicating Pickens’s November 2024 motion, the

Tenth Circuit again addressed whether Pickens’s proposed habeas petition

would be a second or successive petition. [ECF No. 11-22]. The Tenth Circuit

noted that Pickens’s 1996 petition “resulted in a new judgment,” namely, the

state court’s 2001 judgment modifying his death sentence to life without

parole, and determined the petition Pickens sought authorization to file

would be his first § 2254 petition challenging the 2001 judgment. [Id. at 1-2].

The Tenth Circuit relied on the United States Supreme Court’s 2010

Magwood decision4 to make this determination and noted that this court did

not have the benefit of the Magwood guidance when it dismissed Pickens’s

2009 petition for lack of jurisdiction. [Id. at 2]. The Tenth Circuit further

stated,

4 Magwood v. Patterson, 561 U.S. 320 (2010).

[s]ince then, both the district court and this court appear to have

assumed that Pickens requires authorization to file another § 2254

application challenging his Tulsa County conviction. But in

considering the instant motion for authorization, we have not

located any filing in the nature of a § 2254 application that was

decided on the merits since the State commuted Pickens’s sentence

in 2001. It therefore appears that Pickens does not require

authorization to file a § 2254 application challenging the 2001

judgment.

[Id. at 2]. The Tenth Circuit thus denied the November 2024 motion for

authorization as “unnecessary[.]” [Id. at 3].

It is against this backdrop that Pickens now files the instant Petition.

[ECF No. 1].

DISCUSSION

I. Second or successive analysis

Despite the Tenth Circuit’s strong suggestion that the Petition is Pickens’s

first petition challenging his 2001 judgment, Respondent contends this Court

lacks jurisdiction to adjudicate the Petition because it is a second or

successive petition, and Pickens did not obtain authorization from the Tenth

Circuit to file it. [ECF No. 11 at 16].

A district court must dismiss claims asserted in a second or successive

petition filed by a state prisoner if those claims were “presented in a prior

application.” 28 U.S.C. § 2244(b)(1). In limited circumstances, a district

court may consider claims presented in a second or successive petition filed

by a state prisoner if those claims were not presented in a prior petition. 28

U.S.C. § 2244(b)(2). However, before a state prisoner files a second or

successive petition in district court, raising either previously presented

claims or newly presented claims that might fall within § 2244(b)(2)’s narrow

exceptions, the prisoner must first file a motion “in the appropriate court of

appeals for an order authorizing the district court to consider” the second or

successive petition. 28 U.S.C. § 2244(b)(3)(A). If the state prisoner does not

obtain the requisite authorization, the district court does not have

jurisdiction to adjudicate any claims raised in the second or successive

petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam)

(“A district court does not have jurisdiction to address the merits of a second

or successive . . . § 2254 claim until [the court of appeals] has granted the

required authorization.”).

A. The Magwood decision

Accordingly, this Court must ascertain whether the Petition is an

unauthorized second or successive petition rendering this Court without

authorization, as Respondent contends, or whether the Petition is the first to

challenge the 2001 judgment. As noted by the Tenth Circuit, the Court’s

analysis begins with the Magwood decision. [ECF No. 11-22 at 1-2].

In Magwood, the petitioner challenged the sentence imposed in a new

judgment entered after his successful § 2254 petition. Magwood, 561 U.S. at

329–330. The Magwood Court concluded “the phrase ‘second or successive’

must be interpreted with respect to the judgment challenged” id. at 333, and

concluded, if “there is a ‘new judgment intervening between two habeas

petitions,’ [Burton v. Stewart, 549 U.S. 147, 156 (2007)], an application

challenging the resulting new judgment is not ‘second or successive’ at all.”

Id. at 341–342. It therefore held that the petitioner’s second petition was not

“second or successive” because it challenged the sentence imposed in the new

intervening judgment. Id. at 342.

The Magwood Court expressly did not address whether its holding would

permit “a petitioner who obtains a conditional writ as to his sentence to file a

subsequent application challenging not only his resulting, new sentence, but

also his original, undisturbed conviction” because those facts were not

presented. Id.

B. Circuit “split”

Most appellate courts addressing the question left unanswered by

Magwood have held that “a new judgment after a resentencing permits the

inmate to challenge the original conviction without clearing the second-or-

successive hurdles.” King v. Morgan, 807 F.3d 154, 159 (6th Cir. 2015); see

also In re Gray, 850 F.3d 139, 142 (4th Cir. 2017); In re Brown, 594 F. App’x

726, 729 (3d Cir. 2014)5; Insignares v. Sec’y, Florida Dep’t of Corr., 755 F.3d

5 The Court cites all unpublished decisions herein as persuasive authority.

Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

1273, 1281 (11th Cir. 2014); Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir.

2012); Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010). However, one

circuit court has taken a different approach.

The Seventh Circuit, in Suggs, held where a federal prisoner who has been

resentenced pursuant to a successful § 2255 petition challenges in a

subsequent § 2255 petition only his underlying, undisturbed conviction, the

petition is successive and subject to 28 U.S.C. § 2244’s gatekeeping

requirements. Suggs v. United States, 705 F.3d 279, 285 (7th Cir. 2013). In

reaching this conclusion, the Suggs court relied on pre-Magwood Seventh

Circuit precedent, which stated that “any challenge to an error preceding the

resentencing ‘must be treated as a collateral attack on the original conviction

and sentence, rather than as an initial challenge to the last sentence.’” Id. at

283 (quoting Dahler v. United States, 259 F.3d 763, 765 (7th Cir. 2001)).

C. Tenth Circuit guidance

The Tenth Circuit has not answered the question in a published opinion.

Nevertheless, in unpublished cases, the Tenth Circuit has aligned with the

majority of the circuit courts.

In one case, the petitioner, Wiseman, filed his first § 2255 motion in 2000.

United States v. Wiseman (Wiseman I), Case No. 16-CV-700, 2018 WL

1026373, at *2 (D.N.M. Feb. 21, 2018) (unpublished). The Tenth Circuit

remanded the matter for resentencing on one of the counts, and Wiseman

was resentenced in 2002. Id. In 2017, he filed another § 2255 motion

challenging both his convictions and his sentence. Id. at *3. Wiseman

argued that none of his claims were second or successive because of the new

intervening judgment entered in 2002. Id. at *2-3. Noting that Magwood

“left open the question whether, after resentencing, a petitioner would be

entitled to challenge not only his resulting, new sentence, but also his

original, undisturbed conviction,” the district court held that it was “bound by

the Tenth Circuit’s claim-by-claim approach to addressing criminal

judgments ... as set forth in Prendergast[6]” and transferred the matter to the

Tenth Circuit for authorization. Id. at *4, 6 (internal quotations and

citations omitted, emphases in original). However, without discussing

Prendergast, the Tenth Circuit found Wiseman’s motion challenging his

convictions was not second or successive because “the 2002 amended

judgments were new judgments under Magwood[.]” United States v.

Wiseman (Wiseman II), 767 F. App’x 696, 698 (10th Cir. 2019). The Tenth

Circuit therefore remanded the matter back to the district court. Wiseman II,

767 F. App’x at 698.

6 In Prendergast v. Clements, the Tenth Circuit held that otherwise time-

barred “attacks on [an] original conviction are [not] resurrected” by a

resentencing. 699 F.3d 1182, 1186 (10th Cir. 2012).

In other cases, the Tenth Circuit has reiterated the proper focus is the

judgment being challenged. See Broadus v. Jones, 414 F. App’x 149, 151

(10th Cir. 2011) (stating that, in determining whether a petition is second or

successive, “the proper question is which judgment did the [previous habeas]

applications attack, not which convictions” (emphases in original)); see also

Jackson v. Bowen, No. 22-6068, 2022 WL 2165789, at *1 (10th Cir. June 16,

2022) (unpublished) (“[A] habeas application will not be considered second or

successive if it is the first to challenge a particular judgment, even if the

prisoner has previously filed other applications challenging earlier

judgments.”).

The Tenth Circuit also deemed authorization unnecessary in a case with

facts and a procedural posture analogous to the case at bar. See Tillman v.

Bigelow, 672 F. App’x 803, 804 (10th Cir. 2016) (denying authorization as

unnecessary and noting, “[w]e explained that Supreme Court precedent

treated ‘the existence of a new judgment [as] dispositive’ in determining

whether a § 2254 application is second or successive.” (quoting Magwood, 561

U.S. at 338)). And, as noted, the Tenth Circuit signaled in this case that it

considered the 2001 judgment to be a new judgment under Magwood. [ECF

No. 11-22 at 2-3].

D. Pickens’s Petition

Pickens raises two claims: 1) a McGirt7 jurisdictional claim; and 2) a

Brady8 violation claim premised upon the state prosecution’s alleged

withholding of exculpatory DNA evidence. [ECF No. 1at 5-7]. Respondent

argues Pickens is challenging his underlying conviction and not any part of

his resentencing. [ECF No. 11 at 16]. Therefore, Respondent urges this

Court to focus on the claims presented within the Petition, adopt the Seventh

Circuit’s approach and deem Pickens’s Petition an unauthorized second or

successive petition. [Id. at 15-16]. Respondent acknowledges, “in

unpublished opinions, [the Tenth Circuit] appeared to side with the majority

side of the circuit split[]” but Respondent does not squarely address any of

the Tenth Circuit’s decisions. [Id. at 16].

The Tenth Circuit has indicated the majority, judgment-based approach is

appropriate. See supra. Further, the Tenth Circuit already determined

Pickens’s 1996 petition resulted in a “new judgment,” i.e., the 2001 judgment.

7 In 2020, the United States Supreme Court held that Congress did not

disestablish the Muscogee (Creek) Nation Reservation and that the land

within the boundaries of that reservation is “Indian country,” as defined in 18

U.S.C. § 1151(a). McGirt v. Oklahoma, 591 U.S. 894, 913, 933-34 (2020). The

federal government has exclusive jurisdiction, under the Major Crimes Act, to

prosecute certain crimes committed by Indians within Indian country. See 18

U.S.C. §1153.

8 Brady v. Maryland, 373 U.S. 83 (1963).

[ECF No. 11-22 at 1]. Therefore, the 1996 petition does not qualify as a first

habeas petition for purposes of the second-or-successive analysis because

Pickens did not, and could not have, challenged the 2001 judgment through

the 1996 petition. Further, none of Pickens’s habeas pursuits between 2009

and now were decided on the merits and, therefore, do not count as a first

habeas petition for purposes of the second-or-successive analysis. See

Douglas v. Workman, 560 F.3d 1156, 1188 n.18 (10th Cir. 2009). Accordingly,

the Petition is not second or successive, and preauthorization is not required.

[ECF No. 11-22]. The Court therefore denies Respondent’s Motion to

Dismiss, in part, as to the request to dismiss the Petition as an unauthorized

second or successive petition.

V. Statute of limitations analysis

Respondent moves, in the alternative, to dismiss Pickens’s Petition as

time barred. [ECF No. 11 at 23-32]. Under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), state prisoners have one year from the latest

of four triggering events in which to file a federal habeas petition. 28 U.S.C. §

2244(d)(1). These events include:

(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; [and]

(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)(A)-(D). The one-year limitations period generally runs

from the date the judgment became “final” under § 2244(d)(1)(A), unless a

petitioner alleges facts that implicate § 2244(d)(1)(B), (C), or (D). See Preston

v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).

Regardless of which provision governs the commencement date, a state

prisoner’s one-year 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). Federal courts also may toll the limitations period for equitable

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

noncompliance with the statute of limitations if the petitioner asserts a

credible claim of actual innocence, McQuiggin v. Perkins, 569 U.S. 383, 392

(2013).

A. 28 U.S.C. § 2244(d)(1)(A)

Pickens failed to initiate the Petition within the time mandated by 28

U.S.C. § 2244(d)(1)(A). Pickens was resentenced on September 4, 2001. ECF

No. 11-6 at 2; ECF No. 11-2 at 23. Pickens did not file a notice of appeal to

appeal the new judgment and sentence within ten days of the new judgment

and sentence being imposed in open court. See Rule 2.1(B), Rules of the

Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001)9

Therefore, the 2001 judgment became final on September 14, 2001. See Ezell

v. Allbaugh, 777 F. App’x 271, 273-74 (10th Cir. 2019). Pickens’s one-year

period to file a petition for writ of habeas corpus began September 15, 2001,

and absent statutory tolling, expired September 16, 2002.10 The Court

therefore finds, absent any tolling events, the January 15, 2025 Petition is

untimely under 28 U.S.C. § 2244(d)(1)(A).11

9 If the judgment is categorized as a plea since it was the result of

“negotiations” [see ECF No. 11-6 at 2 and ECF No. 11-2 at 23 (referencing

“acceptance of plea”)], Pickens had ten days to file an application to withdraw

his plea. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals,

Title 22, Ch. 18, App. (2001). Whether it is considered a new judgment or a

plea, Pickens still had ten days to initiate an appeal process and did not.

10 Pickens’s deadline was technically September 15, 2002. Since September

15, 2002, was a Sunday, Pickens’s one-year deadline was extended to

Monday, September 16, 2002. FED. R. CIV. P. 6(a)(1)(C).

11 Respondent urges pursuant to Prendergast, 699 F.3d 1182, and Burks v.

Raemsich, 680 F. App’x 686 (10th Cir. 2017), a claim-by-claim approach

looking back to the 1996 judgment must be employed for the AEDPA statute

The limitations period is statutorily tolled during the pendency of any

“properly filed application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2).

This statutory tolling provision, however, does not apply to applications for

state postconviction or other collateral review filed beyond the one-year

limitations period prescribed by the AEDPA. Clark v. Oklahoma, 468 F.3d

711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed

within the one year allowed by the AEDPA will toll the statute of

limitations.”); Anderson v. Cline, 397 F. App’x 463, 464 (10th Cir. 2010) (“[I]t

is long settled that a state court motion for collateral relief cannot restart the

clock on a limitations period that has already expired.”).

A review of the record indicates Pickens did not file an application for

state post-conviction or other collateral review until April 21, 2008. [ECF No.

11-2 at 24]. Since the April 21, 2008 application was filed well beyond

September 16, 2002, it does not provide any statutory tolling for Pickens

pursuant to § 2244(d)(2).12

of limitations analysis. [See ECF No. 11 at 27]. The Court need not

determine for purposes of the current analysis whether the interpretation of

“judgment” in Magwood applies with equal force to § 2244(d)(1)(A). The

Petition is untimely pursuant to both the 1996 and 2001 judgment.

12 If the statute of limitations is calculated from the 1996 judgment, Pickens

still is not entitled to any statutory tolling because he did not file an

application for state post-conviction or other collateral review within one year

B. 28 U.S.C. § 2244(d)(1)(D)

Pickens alleges throughout his Petition “the factual predicate for these

claims could not have been discovered previously through the exercise of due

diligence.” [ECF No. 1 at 5, 6, 7; see also id. at 13 (citing 28 U.S.C. §

2244(d)(1)(D)]. Respondent does not address § 2244(d)(1)(D) stating only,

“Petitioner hints at the applicability of § 2244(d)(1)(C) or § 2244(d)(1)(D) [],

neither is applicable.” [ECF No. 11 at 26, n. 11]. “By its plain language, §

2244(d)(1)(D) is directed to when the factual predicate of a petitioner’s claim

or claims could have been discovered through the exercise of due diligence.”

Resinger v. Farris, 804 F. App’x 1001, 1002 n.2 (10th Cir. 2020). “A factual

predicate constitutes the vital facts underlying those claims.” Purkey v.

Kansas, 281 F. App’x 824, 827 (10th Cir. 2008) (quotation omitted). Further,

“the limitation period under § 2244(d)(1)(D) begins on the date that a

reasonably diligent petitioner could have discovered the factual basis of his or

her claims, not the date that a particular petitioner first discovers the legal

basis of his or her claims.” Owens v. Whitten, 637 F. Supp. 3d 1245, 1252

(N.D. Okla. 2022) (emphases in original) (citing Stiltner v. Nunn, Case No.

21-CV-0374-GKF-CDL, 2022 WL 951997, at *5 (N.D. Okla. Mar. 29, 2022)

of April 24, 1996, the date the AEDPA was signed into law. [See ECF No. 11-

2 at 17]; see also Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998)

(noting, the “one-year limitations clock began to run on April 24, 1996, when

AEDPA went into effect.”).

(unpublished)). Trigger dates under § 2244(d)(1)(D) require “claim-by-claim

consideration.” Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).

i. The McGirt claim

Turning first to his McGirt claim, Pickens alleges, he is a “born and raised

bona fide resident-citizen of the Muscogee Creek [N]ation[.]” [ECF No. 1 at

5]. As such, “[t]he State of Oklahoma lacks the jurisdiction to prosecute on

exclusive native tribal – federally recognized native tribal nations in

Oklahoma’s reservations. Is a violation of due process – Fourteenth

Amendment, and in violation treaties – U.S. Constitution.” Id. Pickens does

not provide the date he alleges he discovered the factual predicate underlying

his claim. [See ECF No. 1].

Courts routinely and consistently reject the argument that McGirt renders

a petitioner’s habeas petition timely pursuant to § 2244(d)(1)(D) because the

limitation period under § 2244(d)(1)(D) begins on the date that a reasonably

diligent petitioner could have discovered the factual basis of his or her claims,

not the date that a particular petitioner first discovers the legal basis of his

or her claims. See Ford v. Dowling, No. 22-6138, 2023 WL 2641476, at *3

(10th Cir. Mar. 27, 2023) (unpublished) (“[Section] 2244(d)(1)(D) is

inapplicable because nothing in McGirt can be said to reveal a new factual

predicate for [the petitioner’s] claim.”); see also Sweet v. Hamilton, 634 F.

Supp. 3d 1048, 1052 (N.D. Okla. 2022) (rejecting petitioner’s arguments that

§ 2244(d)(1)(D) applies to McGirt claim). Petitioner’s claims rely on facts he

should have known when he was prosecuted—that he is a “bona fide resident-

citizen of the Muscogee Creek [N]ation”. [ECF No. 1 at 5]. Therefore,

regardless of when Pickens realized the potential legal significance of the

facts he alleges regarding his Indian status, his claim remains untimely.

ii. The Brady claim

Concerning his second claim, Pickens alleges “[t]he prosecution

suppressed exculpatory DNA evidence favorable to Petitioner’s defense, and

the withholding of the three polices [sic] testimony concerning this

suppression and the colation [sic] of this DNA evidence was intentionally

done. Fourteenth Amendment Brady violation.” [ECF No. 1 at 7]. The Court

understands Pickens’s claim to stem from the collection of DNA evidence

from his person on February 9, 1990, the date of his arrest, and on February

15, 1990, pursuant to a warrant. [See id.]. While his claim is difficult to

follow, he appears to allege on one hand, the DNA evidence was provided to

the jury and, on the other hand, DNA testing results were destroyed. [See

id.; see also id. at 34]. He also alleges the individuals who took the physical

samples did not testify at his trial and their testimony was “suppressed.”

[See id. at 7, 34].

Once again, Pickens does not reveal what date he discovered this alleged

factual predicate. [See ECF No. 1]. Pickens was aware of the DNA evidence

being collected on February 9, 1990, and February 15, 1990, as he was

present for the collection. [ECF No. 1 at 7]. He was also present at his trial

and knew what evidence was presented to the jury. Therefore, the factual

predicate of his exculpatory DNA evidence claim could have been discovered

through the exercise of due diligence by the end of his October 1990 jury trial.

[ECF No. 11-2 at 10-11].

Further undermining Pickens’s current claim is that he presented a nearly

identical claim in his April 2024 request for authorization. [Compare ECF

No. 1 at 22-35 with ECF No. 11-21 at 2-3]. The Tenth Circuit noted,

“[a]ssuming for argument’s sake that these claims are true, he fails the

requirement that ‘the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence,’ §

2244(b)(2)(B)(i).” [ECF No. 11-21 at 3]. For these reasons, the Court

concludes Pickens’s exculpatory DNA evidence claim is untimely pursuant to

§ 2244(d)(1)(D).13

C. Equitable tolling

While the one-year statute of limitations may be subject to equitable

tolling, such tolling “is only available when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by

13 Pickens did not allege any facts triggering §§ 2244(d)(1)(B) or (C).

Therefore, the Court does not analyze these subsections.

extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000). Moreover, a petitioner’s “burden in making this

demonstration is a heavy one: [federal courts] will apply equitable tolling

only if he is able to ‘show specific facts to support his claim of extraordinary

circumstances and due diligence.’” Vigil v. Jones, 302 F. App’x 801, 804 (10th

Cir. 2008) (quoting Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)).

Equitable tolling is only available in “rare and exceptional circumstances[.]”

York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003). Pickens has not

demonstrated any rare and exceptional circumstance which would entitle him

to equitable tolling.

D. Actual innocence

Finally, Pickens alleges he is actually innocent. [ECF No. 1 at 13, 16-17].

Successful actual-innocence claims are rare due to the demanding evidentiary

requirements for such claims. McQuiggin v. Perkins, 569 U.S. 383, 386 and

401 (2013); House v. Bell, 547 U.S. 518, 538 (2006). “[P]risoners asserting

innocence as a gateway to defaulted claims must establish that, in light of

new evidence, ‘it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt.’” House, 547 U.S. at 536-

37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord McQuiggin, 569

U.S. at 399 (applying the same standard to petitions asserting actual

innocence as a gateway to raise habeas claims that are time-barred under §

2244(d)(1)). “To be credible, a claim of actual innocence requires a petitioner

to present ‘new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—

that was not presented at trial.’” Fontenot v. Crow, 4 F.4th 982, 1031 (10th

Cir. 2021) (quoting Schulp, 513 U.S. at 324).

Pickens did not satisfy the demanding evidentiary requirements necessary

to raise an actual innocence gateway claim. Pickens did not present the

Court with any evidence, let alone new, reliable evidence. Therefore,

Pickens’s actual innocence gateway claim fails. For all the reasons explained

above, Respondent’s Motion to Dismiss the Petition as time barred is granted.

PENDING MOTION

Pickens also moved for summary judgment. [ECF No. 12]. Having

concluded Pickens’s Petition is barred by the applicable statute of limitations,

the Court denies as moot Pickens’s Motion for Summary Judgment.

CONCLUSION

The Court finds and concludes Pickens’s Petition for Writ of Habeas

Corpus [ECF No. 1] is time-barred and Pickens has not satisfied the

requirements to pass through the actual innocence gateway. The Court

therefore dismisses the Petition. The Court further concludes that no

certificate of appealability shall issue because no reasonable jurists would

debate the dismissal of the Petition on statute-of-limitations grounds. 28

U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 478, 484 (2000).

IT IS THEREFORE ORDERED that the Motion to Dismiss [ECF No.

10] is denied, in part, and granted, in part; the Petition [ECF No. 1] is

dismissed with prejudice; a certificate of appealability is denied; anda

separate judgment shall be entered in this matter.

IT IS FURTHER ORDERED that the Motion for Summary Judgment

[ECF No. 12] is denied as moot.

IT IS FURTHER ORDERED that the Clerk of the Court shall note on

the record the substitution of Scott Tinsley, Interim Warden, in place of

Randy Harding as party Respondent.

IT IS SO ORDERED this 28rd day of October, 2025.

Sane

Sara E. tale

UNITED STATES DISTRICT JUDGE

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