Petition for Writ of Certiorari — Paul Curtis Pemberton, Petitioner v. Michael Miller, Warden

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

PAUL CURTIS PEMBERTON,

Petitioner,

v.

MICHAEL MILLER, WARDEN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

APPENDIX TO THE PETITION FOR WRIT OF CERTIORARI

APPENDIX Al

UNITED STATES COURT OF APPl

FILED

United States Court of Appt

Tenth Circuit

FOR THE TENTH CIRCUIT

November 26, 2024

Christopher M. Wolpert

Clerk of Court

PAUL CURTIS PEMBERTON,

Petitioner - Appellant,

MICHAEL MILLER, Warden,

No. 24-7027

(D.C. No. 6:23-CV-00025-RAW-JAR)

(EJD. Okla.)

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before TYMKOVICH, McHUGH, and MORITZ, Circuit Judges.

Paul Curtis Pemberton, an Oklahoma prisoner proceeding pro se,1 seeks a

certificate of appealability (COA) to appeal from the district court’s opinion and order

dismissing his 28 U.S.C. § 2254 habeas petition as time-barred. We deny a COA and

dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case,

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We construe Pemberton’s pro se filings liberally, but we do not act as his

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

I. Background

In 2004, an Oklahoma state court jury convicted Pemberton of first-degree murder

and unlawful possession of a firearm after a former felony conviction. The trial court

sentenced him to life in prison, and the Oklahoma Court of Criminal Appeals (OCCA)

affirmed his convictions in 2006. Pemberton did not seek review in the United States

Supreme Court.

In 2020, the Supreme Court issued McGirt v. Oklahoma, 591 U.S. 894 (2020),

which changed the landscape for criminal prosecutions in Oklahoma. In McGirt, the

Court held the Muscogee (Creek) Reservation had never been disestablished and

constitutes Indian Country for purposes of federal court jurisdiction under the

Major Crimes Act, and therefore the State of Oklahoma lacked jurisdiction to prosecute

the petitioner in that case because he was an Indian who committed his crime in Indian

country; See id. at 897-99, 937. Pemberton raised a jurisdictional challenge to his

convictions in state post-conviction proceedings, but the trial court denied relief based on

a later OCCA opinion that held McGirt is not retroactive on collateral review and does

not void state convictions that were final prior to McGirt.

During the pendency of Pemberton’s state post-conviction proceedings, state

authorities refen ed Pemberton’s case to federal authorities based on the same conduct

underlying his state murder conviction. In 2021, a federal jury convicted Pemberton of

committing murder in Indian Country.2

2 This federal case is not at issue in this proceeding, but we note it here because

Pemberton relies on testimony from his federal trial to support his habeas claims.

2

In 2023, Pemberton filed his § 2254 habeas petition seeking to challenge his state

murder conviction. In it, he conceded his petition was not timely filed within the .

one-year limitations period in 28 U.S.C. § 2244(d)(1)(A). He argued, however, that

testimony introduced at his federal trial in 2021 showed that those same witnesses gave

false testimony at his 2004 state trial and constituted new evidence that could trigger a

new limitations period, citing § 2244(d)(1)(D).3 He also argued he could overcome the

time bar through a showing of actual innocence based on that same evidence and based

on his assertion that he could not have been found guilty of violating Oklahoma criminal

statutes because he is a member of the Muscogee (Creek) tribe and the crime occurred

within the boundaries of the Cherokee reservation.

The State moved to dismiss the petition as time-barred. The district court agreed

the petition was untimely. It concluded Pemberton could have discovered any alleged

perjury or false statements when the statements were originally made in 2004 at his state

trial. The court also determined Pemberton could have discovered his claim for

ineffective assistance of counsel when his attorney filed his appellate brief in 2005. To

the extent Pemberton argued the Supreme Court’s decision in McGirt gave him a new

factual predicate for his claim that he could not be convicted due to a jurisdictional

defect, the district court explained McGirt provided a new legal—not factual—predicate

i

:

for that claim.

3 Section 2244(d)(1)(D) provides that the one-year limitations period shall run

from “the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.”

3

The district court also rejected Pemberton’s argument that he had made a showing

of actual innocence to overcome the statute of limitations and have the court consider the

merits of his claims based on his jurisdictional-defect argument and the alleged false

testimony. The court explained actual innocence means factual innocence, not legal

insufficiency. The district court also concluded Pemberton had failed to present new,

reliable evidence of his innocence that was not presented at his state trial. And the

district court found that even with the alleged inconsistencies in the witness testimony

between Pemberton’s state and federal trials, the other evidence at his state trial

“overwhelmingly demonstrated [Pemberton’s] guilt,” including his own confession to

law enforcement that he shot his stepmother, and his father’s eyewitness testimony of the

shooting. R., vol. 2 at 866.

The district court granted the State’s motion to dismiss the habeas petition as

time-barred and denied a COA. Pemberton now seeks a COA from this court.

IL Discussion

A state prisoner must obtain a COA to appeal from a final order in a habeas

proceeding. See 28 U.S.C, § 2253(c)(1)(A). We may issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To

obtain a COA where, as here, a district court has dismissed a filing on procedural

grounds, Pemberton must show both “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)., We need not address

4

the constitutional question if we conclude that reasonable jurists would not debate the

district court’s resolution of the procedural one. Id. at 485.

A. Actual Innocence

The district court recognized that a claim of actual innocence may toll the

one-year statute of limitations in § 2244(d) and serve as a gateway for the court to

consider the merits of a habeas petitioner’s constitutional claims. See R., vol'. 2

at 861-62. But the court explained “actual innocence means factual innocence, not mere

legal insufficiency.” Id. at 862 (brackets and internal quotation marks omitted). It

further explained that a gateway claim of actual innocence “requires new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Id. at 864

(internal quotation marks omitted).

In his COA-application, Pemberton first reiterates his argument that he is factually

innocent because the crime occurred within Indian Country, and the Major Crimes Act

divests the State of criminal jurisdiction over Indians in Indian Country; therefore, he

could not have been convicted of violating Oklahoma criminal statutes. But he does not

explain how this jurisdictional argument shows factual innocence—that he did not

murder his stepmother—as opposed to legal insufficiency—that he was convicted by the

wrong jurisdiction. In a recent case where another Oklahoma prisoner advanced a similar

jurisdictional argument, we considered whether “the factual-innocence gateway is

available when one has been convicted by the wrong jurisdiction.” Pacheco v. Habti,

62 F.4th 1233, 1242 (10th Cir.), cert, denied, 143 S. Ct. 2672 (2023); see also id. at 1245

5

(“Ms. Pacheco’s actual-innocence claim is not based on evidence regarding what she did,

but on where she did it.”). We concluded “the rationale behind the gateway does not

support its application to conviction by the wrong jurisdiction.” Id. at 1242.4

Pemberton also argues he is factually innocent of murder based on newly

presented evidence. This argument appears to be primarily based on inconsistencies

between his father’s testimony at Pemberton’s 2004 state trial as compared to his father’s

testimony at Pemberton’s 2021 federal trial, and evidence regarding the victim’s wounds

and the trajectory of the shots fired.

' The district court concluded Pemberton “ha[d] not come close” to making the

showing for actual innocence—“that it is more likely than not any reasonable juror would

have reasonable doubt about [his] convictions if they hear the alleged minor'

discrepancies in witness testimony between the two trials.” R., vol. 2 at 86.6 (citation and.

internal quotation marks omitted).5 The court also explained the evidence about the

victim’s wounds and the trajectory of the shots fired was presented at Pemberton’s state

4 After noting there was “no suggestion of bad faith on the part of the State in

exercising jurisdiction to prosecute [Ms. Pacheco],” we left for another day the question

of whether a bad-faith arrogation of sovereignty to prosecute a particular person could

be ground for excusing a procedural default in a habeas case.” Pacheco, 62 F.4th

at 1245-46. The district court did not need to address that question here because it

likewise noted there was “no allegation of bad faith in the State’s prosecution” of

Pemberton. R., vol. 2 at 862.

5 Prisoners asserting actual innocence “must establish that, in light of new

evidence, it is more likely than not that no reasonable juror would have found [the]

petitioner guilty beyond a reasonable doubt,” Fontenot v. Crow, 4 F.4th 982, 1030

(lOthCir. 2021) (internal quotation marks omitted).

6

and federal trials, and both juries convicted him. The court therefore concluded the

evidence was not new and did not demonstrate Pemberton’s actual innocence.

Pemberton points to slight differences in the testimony between 2004 and 2021

about where his father said Pemberton was standing when he began shooting the victim,

but he does not address the district court’s reasoning that these minor differences in the

testimony between the two trials would not meet the required showing for actual

innocence, i.e., that no reasonable juror would have found him guilty of murder. He also

does not address the district court’s conclusion that the evidence about the trajectory of

the shots and the victim’s wounds was presented at his state trial, so it is not new.

Finally, Pemberton does not address the district court’s determination that the

evidence of his guilt was overwhelming. That evidence included his own confession that

he shot his stepmother and his father’s eyewitness testimony of the shooting. He makes

the conclusory, and unsupported, assertion his confession was “uncorroborated,” COA

Appl. at 4, but his confession was corroborated by his father’s eyewitness testimony.

And, as the district court recounted, the evidence showed Pemberton confessed to

multiple law enforcement officers, and the OCCA determined his statements were

voluntary.

Pemberton has failed to show reasonable jurists could debate the district court’s

conclusion that he did not make a sufficient showing of actual innocence to overcome the

time bar in § 2244(d).

7

B. Ineffective Assistance of Counsel (IAC)

Pemberton next argues he is entitled to submit new evidence showing that he was

convicted as the result of ineffective trial and appellate counsel. But he does not identify

any new evidence. Assuming it is the same evidence he relied on for his claim of actual

innocence, he has not shown that the factual predicates for his IAC claims could not have

been discovered sooner, as § 2244(d)(1)(D) requires.6 The State argued in its motion to

dismiss that Pemberton could have discovered his IAC claims no later than the date his

direct appeal brief was filed, and the district court agreed. Pemberton fails to address the

district court’s conclusion or to show that reasonable jurists would disagree with the

district court’s procedural ruling that his habeas petition was untimely.

III. Conclusion

We deny a COA and dismiss this matter. We also deny Pemberton’s motion to

take judicial notice of certain documents as unnecessary because the court prepared the

record on appeal, see 10th Cir. R. 10.3(c).

Entered for the Court

Nancy L. Moritz

Circuit Judge

6 Pemberton also contends the district court did not perform the analysis for

ineffective assistance of counsel under Stricklandv. Washington, 466 U.S. 668 (1984).

But that is a merits analysis, and the court determined that Pemberton’s habeas claims

were time-barred, so it did not reach the merits of any claims.

8

APPENDIX A-l(a)

UNITED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

December 27,2024

Christopher M. Wolpert

Clerk of Court

PAUL CURTIS PEMBERTON,

Petitioner - Appellant,

• No. 24-7027

(D.C. No. 6:23-CV-00025-RAW-JAR)

(E.D. Okla.)

v.

MICHAEL MILLER, Warden,

Respondent - Appellee.

ORDER

Before TYMKOVICH, McHUGH, and MORITZ, Circuit Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court

who are in regular active service. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, that petition is also denied.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

APPENDIX A-2

6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

)

PAUL CURTIS PEMBERTON,

)

Petitioner,

)

)

v.

)

MICHAEL MILLER, Warden,

)

Respondent.

)

Case No. 23-CV-025-RAW-JAR

OPINION AND ORDER

This action is before the Court on Respondent’s motion to dismiss Petitioner’s petition

for a writ of habeas corpus as barred by the statute of limitations. (Dkt. 11).1 Petitioner is

a pro se prisoner in the custody of the Oklahoma Department of Corrections who is

incarcerated at Allen Gamble Correctional Center in Holdenville, Oklahoma. He is

attacking his convictions in McIntosh County District Court Case No. CF-2004-57 for First

Degree Murder-Malice Aforethought (Count 1) and Unlawful Possession of a Firearm After

Former Felony Conviction (Count 2). (Dkt. 12-8 at I).2 The Court has before it for

consideration Petitioner’s habeas corpus petition with exhibits (Dkt. 1), Respondent’s motion

to dismiss and brief in support with exhibits (Dkts. 11, 12), Petitioner’s response to the

motion to dismiss with exhibits (Dkt. 14), and Petitioner’s objection to the motion to dismiss

(Dkt. 17).

The Court has carefully reviewed the record and construes Petitioner’s pro se

1 The Court’s citations refer to this Court’s CM/ECF header pagination.

2 Petitioner’s case apparently was referred to federal authorities based on the same conduct

underlying his state murder conviction. On February 23,2021, an Indictment was issued in United

States v. Pemberton, No. 21-CR-12-JFH (E.D. Okla). (Dkt. 12-5). He was tried by jury and

convicted under 18 U.S.C. §§ 1151, 1153 for Murder in Indian Country, and under 18 U.S.C. §

9240)(1) for Causing the Death of a Person in Violation of 18 U.S.C. § 924(c). (Dkt. 12-6). On

June 21,2022, Petitioner was sentenced to “Life as to each of Counts 1 & 2 of the Indictment” with

the terms of imprisonment to be served concurrently with one another. (Dkt. 12-7).

6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 2 of 17

pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). This relaxed standard,

however, does not relieve his burden of alleging sufficient facts on which a recognized legal

claim could be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

I.

Petitioner’s Claims.

Petitioner raises the following eight grounds for habeas corpus relief:

Ground One: The trial court erred in denying Petitioner’s Sixth Amendment

rights by not allowing Petitioner to represent himself pro se. (Dkt. 1 at 7).

Ground Two: The State of Oklahoma lacked jurisdiction over the homicide

of Deanna Pemberton because the tact of land where the crimes [are] alleged

to have occurred is in “Indian Country” violating [Petitioner’s] right to be

heard, right to fairness and right to procedural due process guaranteed under

the Fifth and Fourteenth Amendments of the United States Constitution. Id.

at 12.

Ground Three: The State of Oklahoma lacked jurisdiction over crimes

allegedly committed by [Petitioner] in Indian Country becausew [sic] he is an

enrolled citizen of the Muscogee (Creek) Nation and his arrest and prosecution

violated his Fifth and Fourteenth Amendment rights of the United States

Constitution. Id. at 17.

Ground Four: The petitioner’s arrest, seizure, and search of his person and

effects and his vehicle was in violation of the Fourth, Fifth and Fourteenth

Amendments of the.United States Constitution, as well as Article II, Sections]

21 and 30 of the Oklahoma Constitution; and he was not provided “an

opportunity for full and fair litigation” during the motion to suppress

proceeding in violation of Article II, Section 7 of the Oklahoma Constituion

[sic] and the Fifth and Fourteenth Amendments of the United States

Constitution. Id. at 18.

Ground Five: Petitioner’s statements were inadmissible because they were

made following an illegal, investigatory, pretextual arrest which was not.based

on probable cause in violation of the Fourth, Fifth, and Fourteenth

Amendments of the United States Constitution. Id. at 22.

GroundSix: Theprosecutorknowinglyusedpeijured te'stimonyto obtain this

conviction, the prosecutor knew or should have known the testimony was

false, establishing factual and actual innocence, and this prejudice resulted in

conviction in violation of the Due Process Clause, right to fair trial, and right

to be heard on Petitioner’s theory of defense infringing upon Petitioner’s Fifth

and Fourteenth Amendment rights of the United States Constitution. Id. at 26.

Ground Seven: The petitioner’s conviction was the result of an inadequate

2

5

6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 3 of 17

pre-trial investigation by trial counsel, because they were ineffective by

performing deficeintly [sic], and the deficiency was prejudicial to the outcome

that resulted in conviction of one who is actually innocent[.] Counsel utterly

failed to defend against the charges, rendering counsel’s representation

presumptively inadequate. This violated Petitioner’s right to the effective

assistance of counsel as gauranteed [sic] by the Sixth Amendment of the

United States Constitution. Id. at 41.

Ground Eight: The petitioner reci eved [sic] ineffective assistance of counsel

on his direct appeal, in violation of the Sixth Amendment of the United States

Constitution and Article II, Section 20 of the Oklahoma Constituion [sic]. Id.

at 46.

II.

The Antiterrorism and Effective Death Penalty Act of 1996

Respondent alleges the petition was filed beyond the one-year statute of limitations

imposed by the Antiterrorism and Effective Death Penalty Act of 1996, codified at28 U.S.C.

§ 2244(d) (AEDPA). (Dkts. 11, 12). The AEDPA gives state prisoners a one-year statute

of limitations to seek a writ of habeas corpus from federal courts as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court.

The limitation period shall run 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;

(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.

(2) The 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 peiiod of limitation under

this subsection.

28 U.S.C. § 2244(d).

3

6:23-cv-00025-RAW-3AR Document 24 Filed in ED/OK on 03/21/24 Page 4 of 17

A.

Untimeliness under 28 U.S.C. § 2244(d)(1)(A),

Petitioner was tried byjury and convictedin McIntosh County District Court CaseNo,

CF-2004-57 (Dkt. 12-2 at 14), and his Judgment and Sentence was entered on December 20,

2004. (Dkt. 12-8). He directly appealed the convictions to the OCCA, which affirmed his

convictions on March 29, 2006; Pemberton v. State, No. F-2004-1256 (Okla. Crim. App

Mar. 29„ 2006) (unpublished) (Dkt. 12-1). His convictions, therefore, became final 90 days

later on June 27,2006. See Sup. Ct. R. 13(1) (providing 90 days after entry of the judgment

to seek review with the United States Supreme Court). Absent a tolling event, the one-year

limitation period expired on June 28, 2007. See Gonzales, 565 U.S. at 150; Harris v.

Dinwiddle, 642 F.3d 902, 906 n. 6 (10th Cir. 2011); United States v. Hurst, 322 F.3d 1256,

1260 (10th Cir. 2003). The Court finds, and Petitioner concedes in his petition, that the

petition is untimely under § 2244(d)(1)(A). (Dkt. 1 at 4).

From 2008 to 2021, Petitioner filed numerous applications and motions in the state

district court and corresponding writs for extraordinary relief in the OCCA. (Dkt. 12-2; Dkt.

12-3). Because these filings all post-dated the expiration of Petitioner’s AEDPA limitation

period, and because he does not make any argument for equitable tolling that would require

consideration of whether he has been diligent in pursuing his state-court remedies, these

filings and rulings are not included here.

B.

Untimeliness under 28 U.S.C. § 2244(d)(1)(D)

1.

Trial Testimony

Petitioner alleges that while his petition is untimely under § 2244(d)(1)(A), "newly

presented” evidence introduced at his federal trial should grant him an alternative triggering,

date under 28 U.S.C. § 2244(d)(1)(D). (Dkt. 1 at 3). Under § 2244(d)(1)(D), a petitioner has

one year from the time that a new “factual predicate” for the claim or claims could have been

4

•

6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 5 of 17

discovered “through the exercise of due diligence.” To avail himself of § 2244(d)(1)(D),

Petitioner need not show “the maximum feasible diligence but only due, or reasonable

diligence.” Stams v. Andrews, 524 F.3d 612,618 (5th Cir. 2008) (quotingMoore v. Knight,

368 F.3d 936,938 (7th Cir. 2004)) (internal quotes omitted). See also Lottv. Coyle, 261 F.3d

594, 605 (6th Cir. 2001) (burden lies with petitioner to show he exercised due diligence).

Respondent maintains that Petitioner has failed to show the exercise of due

diligence as to his claim. (Dkt. 12 at 14).

In an attempt to- show that testimony at his 2004 state trial was different or

inconsistent with testimony given by the same witnesses in his 2021 federal trial, Petitioner

cites to the state trial transcripts. (Dkt. 1 at 23-48). Respondent argues that it is clear that

any “perjury” or false statements made by the state’s witnesses at the state trial should have

been easily discoverable through even minimal diligence in 2004. While Petitioner claims

he only discovered the allegedly false statements made by the State’s witnesses when he

heard them testify at his federal trial, if the statements truly were false, Petitioner would have

recognized that fact when the statements originally were made in the state trial. See Taylor

v. Martin, 757 F.3d 1122, 1124 (10th Cir. 2014). See also Mehdipour v. Whitten, Case No.

CIV-19-206-C, 2019 WL4858346, at *2 (W.D. Okla. July23,2019) (unpublished) (“Where

a habeas claim is based on alleged false testimony, the fact of the false testimony is generally

discovered or discoverable at the time the witness gives the false testimonyf.]”).

Petitioner claims that the testimony given by nearly all of the State’s witnesses in his

state trial was perjured, inaccurate or coerced; the result of illegal searches or

interviews/interrogations due to lack of jurisdiction; or based on the ineffectiveness of his

trial counsel. (Doc. 1 at 28-45). First, as to Petitioner’s claim that the State’s witnesses’trial

testimony was perjured, inaccurate, or coerced-the fact of the allegedly false testimony was

5

6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 6 of 17

generally discoverable at the time the testimony was given in 2004. The Tenth Circuit has

rejected such arguments before:

Our unpublished case, Craft v. Jones, 435 F. App’x 789 (10th Cir. 2011)

(unpublished), is persuasive. There, the petitioner sought to avail himself of

§ 2244(d)(1)(D) because he had “new evidence in the form of an affidavit.”

Id. at 791. The affiant claimed that he was present during the stabbing for

which the petitioner was convicted, and that the petitioner had committed the

stabbing in self-defense. Id. This court held that the “date on which the

factual predicate of the claim... could have been discovered” was the date of

the stabbing, not the date of the affidavit.

Id. (quoting 28 U.S.C. §

2244(d)(1)(D)). If the affiant was present at the stabbing, as he claimed, then

the petitioner would have been aware that the affiant was a witness to the event

long before the affidavit. Id.

Taylor, 757 F.3d at 1124 (citing Craft, 435 F. App’x at 791). See also Mehdipour,

CIV-19-206-C, 2019 WL 4858346 at *2.

Restated, the Tenth Circuit found “Mr. Taylor knew or should have known that Mr.

Cheatham’s testimony was false when he heard Mr. Cheatham testify to something Mi'.

Taylor knew to be untrue.” Taylor, 757 F.3d at 1123-24. The same is true in this case. If,

as Petitioner alleges, the State’s witnesses lied on the stand regarding their observations and

investigation concerning Petitioner’s crimes, that fact would have been available to him at

the time of the state trial on October 25-27, 2004. (Dkt. 12-9, Trial Transcripts Vol. I for

McIntosh District Court Case No. CF-2004-57; Dkt. 12-10, Trial Transcripts Vol. II for

McIntosh District Court Case No. CF-2004-57; Dkt. 12-11, Trial Transcripts Vol. Ill for

McIntosh District Court Case No. CF-2004-57).

As set forth above, the statute of limitations began to run under § 2244(d)(l )(D) when

the factual predicate of the claim could have been discovered through exercise of due

diligence, not when it was actually discovered. Section 2244(d)(1)(D) provides petitioners

with a later accrual date than § 2244(d)(1)(A) only “‘if vital facts could not have been

known’” by the date the appellate process ended. Schlueter v. Varner, 384 F.3d 69, 74 (3d

6

6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 7 of 17

Cir. 2004) (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)). Therefore, the “due

diligence clock starts ticking when a person knows Or through reasonable diligence could

discover the vital facts, regardless of when—if any—legal significance is discovered. It is

clear the allegedly false statements made by the State’s witnesses in Petitioner’s 2004 state

trial were available in 2004. See Taylor, 757 F.3d at 1123-24; Mehdipour, CIV-19-206-C,

2019 WL 4858346, at *2. For Petitioner, the “due diligence” clock started to run when

Petitioner observed the allegedly false statements in October 2004 (Dkt. 12-9), even before

his convictions became final. As such, § 2244(d)(1)(D) does not provide him a later

triggering date than § 2244(d)(1)(A) or render his petition timely.

2.

Ineffective Assistance of Appellate Counsel

Petitioner claims in Ground Eight that he received ineffective assistance of appellate

counsel in his direct appeal. He asserts he first i_aised this claim as his fifth proposition in

his July 7,2020, application for post-conviction relief. (Dkt. 1 at 46). Although Petitioner’s

allegations are unclear, according to the state district court’s order entered on October 21,

2020, the fifth proposition raised a claim “on the narrow issue of whether [the state district

court] would have jurisdiction under the rationales of McGirt v. Oklahoma, 140 S.Ct.

2020).” (Dkt. 1-3 at 5). The issue was set for a status conference regarding an evidentiaiy

hearing. Id. at 6. In a November 3, 2021, order denying post-conviction relief, the state

district court found there was no need for an evidentiary hearing.

(Dkt. 1-3 at 9).

Petitioner’s application had raised three specific issues related to jurisdiction: “1) the

Petitioner’s status as an Indian under federal law; 2) if the offense constitutes a major ciime

under the Major Crimes Act. 18 U.S.C.A. § 1153; and 3) whether the crime occurred on the

Creek Reservation.” (Dkt. 1-3 at 12).

■The state district court further found that “McGirt has prospective application, but

7

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6:23-cv-00025-RAW-JAR Document 24 Filed in ED/OK on 03/21/24 Page 8 of 17

‘was never intended to annul decades of final convictions.” (Dkt. 1-3 at 13 (quoting State

ex rel. Matloffv. Wallace, 497 P.3d 686, 693 (Okla. Crim. App. Aug. 12,2021)). Therefore,

the state district court denied Petitioner’s application for post-conviction relief. (Dkt. 1-3 at

13).

Petitioner coinplains that the state district court failed to apply Strickland v.

Washington, 466 U.S. 668, 687, to address his ineffective assistance of appellate counsel

claim. (Dkt, 1 at 46). He also .contends the state district court should have analyzed any

jurisdiction claim under Solem v. Bartlett, 465 U.S. 463,470-73 (1984), because his post­

conviction application was filed on July 8,2020, prior to theMcGirt decision. (Dkt. 1 at 49).

Respondent asserts the latest date Petitioner reasonably could have discovered the

ineffectiveness of his appellate counsel would have been the date his appellate brief was

filed, June 20, 2005, which was prior to Petitioner’s convictions even becoming final. See

Reyes v. Thaler, 2012 WL 1116748, at *2 n.4 (N.D. Tex. April 2, 2012) (unpublished)

(stating that petitioner cannot invoke § 2244(d)(1)(D), because he could have discovered the

factual predicate of his ineffective assistance claims at the time of trial when counsel

committed the alleged acts and omissions).

Further, to the extent Petitioner is claiming that McGirt v. Oklahoma, 591 U.S.

140 S. Ct. 2452 (July 9, 2020), or Sharp v. Murphy,

U.S.

,

, 140 S. Ct. 2412 (July 9,

2020), gave him a new factual predicate because he is an Indian and his crimes occurred on

a Cherokee allotment, McGirt and Murphy provide the legal, not factual predicate for

Petitioner’s claims, and Petitioner was well aware of his Indian County jurisdictional claims,

as he began to assert the jurisdictional argument in state court in 2018. (Dkt. 12-12, Petition

for Writ of Habeas Corpus and Brief in Support in OCCA Case No. HC-2018-1247). See

Johnson v. Louthan, No. 22-5064, 2022 WL 4857114, at *3 (10th Ch. Oct. 4, 2022)

(unpublished) (rejecting petitioner’s argument that his Indian-country jurisdictional claim

8

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could be timely under § 2244(d)(1)(D) and reasoning, in part, that a reasonably diligent

petitioner could have discovered the factual predicate of the claim before the McGirt

decision, because “the absence of an Act of Congress disestablishing the Creek reservation

has been known in this circuit since 2017”); Mitchell v. Nunn, 601 F. Supp. 3d 1076, 1083

(N.D. Okla. April 28, 2022) (rejecting petitioner’s argument that McGirt and ^sst-McGirt

state court decisions provided factual predicate for claim challenging the convicting court’s

jurisdiction over crime committed in Indian country and made that claim timely under §

2244(d)(1)(D), when facts of that case demonstrated that petitioner first asserted the claim

in state court in March 2017). For all the above reasons, the Court finds Petitioner has failed

to show he is entitled to an alternative triggering date for his AEDPA statute of limitations

under 28 U.S.C. § 2244(d)(1)(D).

C.

Equitable Tolling

Equitable tolling of § 2244(d)(l)’s one-year statute of limitations is available “only

in rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir.

2003). “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way

and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted). The

petitioner carries the strong burden of establishing equitable tolling. Yang v. Archuleta, 525

F.3d 925,928-29 (10th Cir. 2008). Because Petitioner has failed to allege or argue equitable

tolling, the Court finds this remedy is not justified.

D.

Actual Innocence

Petitioner alleges his untimely habeas petition should be considered by way of the

actual innocence gateway. (Dkt. 1 at 4). “A claim of actual innocence may toll the AEDPA

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Document 24 Filed in ED/OK on 03/21/24 Page 10 of 17 ,

statute of limitations.” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (citing

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). A petitioner’s claims of innocence,

however, must amount to a “colorable showing of factual innocence.” Demarest v. Price,

130 F.3d 922, 941 (10th Cir. 1997).

Such a showing does not in itself entitle the petitioner to relief but instead

serves as a “gateway” that then entitles the petitioner to consideration of the

merits of his claims. Brecheen v. Reynolds , 41 F.3d 1343, 1357 (10th Cir.

1994) (quotingHerrera v. Collins, 506 U.S. 390,404 (1993)). In this context,

factual innocence means that “it is more likely than not that no reasonable

juror would have found petitioner guilty beyond a reasonable doubt.” Schlup

V; Delo, 513 U.S. 298, 327 (1995); see also Murray v. Carrier, 477 U.S. 478,

496 (“[W]e think that in an extraordinary case, where a constitutional violation

has probably resulted in the conviction of one who is actually innocent, a

federal habeas court may grant the wnt even in the absence of a showing of

cause for the procedural default.”). Factual innocence requires a stronger

showing than that necessary to establish prejudice. Schlup, 513 U.S. at 326.

Demarest, 130 F.3d at 941-42. Moreover, the Supreme Court has recognized that “‘[a]ctual

innocence’ means factual innocence, not mere legal insufficiency.” Bousleyv. United States,

523 U.S. 614, 623 (1998) (citingSawyer v. Whitley, 505 U.S. 333, 339 (1992)).

As an initial matter, most, if not all of Petitioner’s “actual innocence” claim rests on

his jurisdictional claim and alleged false testimony. (Dkt. 1 at 4-7). There is, however, no

allegation of bad faith in the State’s prosecution. Petitioner also claims actual innocence

based on the evidence presented at his federal trial. Id. at 3-6, 26-41).

The OCCA made the following factual findings in Petitioner’s direct appeal, which

are entitled to a presumption of correctness, unless Petitioner produces clear and convincing

evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

In September 2003, the 33 year old [Petitioner] moved in with his father and

step-mother, Donald and Deanna Pemberton, in Checotah. Donald Pemberton

was retired from his own business contract pumping in the oil fields.

Pemberton had tided to help [Petitioner] establish his own business, on at least

two prior occasions. However, [Petitioner] proved to be irresponsible and he

was never able to make a go of the businesses.

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[Petitioner] had a good relationship with his father and step-mother. In

particular, Deanna, the victim in this case, washed iris clothes, prepared his

meals, cleaned his room and basically took care of [Petitioner], This

relationship changed when [Petitioner] wrecked Deanna’s car in October.

[Petitioner] and Deanna began to argue frequently. Deanna stopped washing

[Petitioner's clothes and cleaning his room. In November, the two got into a

bad argument, and [Petitioner] was asked to move out. By Christmas,

[Petitioner] still had not saved enough money to move out of the Pemberton’s

home. With money from his father, [Petitioner] finallymoved outofthe house

shortly after Christmas.

[Petitioner] moved to Muskogee. On April 4, 2004, at about 10:00 a.m„

[Petitioner] called his father from a pay phone in Muskogee and asked if he

could have Pemberton’s old satellite receiver. While Pemberton was talking

to [Petitioner]; the victim picked up another phone line in the house. Hearing

[Petitioner] on the other end, Deanna shouted at [Petitioner] to leave them

alone and that he was not getting anything from them.

According to [Petitioner]’s statements to the police, he hung up the pay phone

in Muskogee furious with his step-mother. He drove home, got his gun and

some money. He then drove to Wal-Mart and purchased 550 rounds of

ammunition for the gun. [Petitioner] then drove approximately 50 miles to

Checotah. Arriving at approximately 3:30 p.m., [Petitioner] walked through

the garage and into the Pemberton’s home. His father was in the den, sitting

in his recliner, watching television when [Petitioner] walked in. Ignoring his

father’s suggestions to leave, [Petitioner] turned toward the hallway. About

this time, the victim walked down the hallway, shouting at [Petitioner] to leave

the house. [Petitioner] shot her. By his own words he “raised the gun and shot

her.” [Petitioner] initially fired at the victim from across the room, causing her

to spin around and fall to the ground. He then walked over to her and

continued to shoot as she lay on the ground. [Petitioner] fired till [sic] the gun

was empty. He continued to fire even after all six rounds of ammunition had

been spent.

Donald Pemberton went to check his wife’s pulse. As he knelt beside her, he

heard the gun click as [Petitioner] attempted to continue firing the gun. Once

[Petitioner] realized the gun was empty he threw the gun on the floor and told

his father to call the police. [Petitioner] told his father, “we’ll [sic] you’ve

destroyed my life, now I’ve destroyed yours.”

Four of the bullets struck the victim in the head and one struck her in the chest.

One of her wounds was consistent with being shot while in a prone position.

She died at the scene.

Pemberton v. State, No. F-200401256, slip op. at 1-3 (Okla. Crim. App. Mar. 29, 2006).

(Dkt. 12-1 at 1-3).

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Petitioner argues in his 400-pIus page petition and attached exhibits that his murder

conviction was the result of unlawful searches, involuntary confessions, perjured testimony,

ineffective assistance of trial counsel, and prosecutorial misconduct, without which he would

have been found not guilty. (Dkt. 1 at 26-45). In support of this claim, he attaches a

multitude of documents to his petition, including numerous pages of transcripts from his

federal trial—without context—that he claims show that several of the State’s witnesses

“perjured” themselves, although it is unclear whether he is claiming the alleged perjury

occurred at his state or federal trial. (Dkt. 1-6).

Respondent alleges Petitioner’s claim of actual innocence fails, because it is not

comprised of new, reliable evidence that was not presented at trial. The Tenth Circuit has

held that the evidence is “new” as long as it is “newly presented,” and it need not be “newly

discovered.” Fontenot v. Crow, 4 F.4th 982,1032 (10th Cir. 2021). It also made clear that

actual innocence claims “must be based on more than the petitioner’s speculations and

conjectures. The gateway claim must ‘be credible’ and requires ‘new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Taylor v. Powell, 7 F.4th 920, 927 (10th

Cir. 2021) (quoting House v. Bell, 547 U.S. 518, 537 (2006)). See also Herrera v. Collins,

506 U.S. 390,417-418 (1993) (rejecting actual innocence claim based on affidavits which,

aside from one provided by an individual who was nine years old at the time of the crime,

largely consisted of hearsay); Fisher v. Pacheco, Case No. 21-8070,2022 WL 420480, at * 1

(1 Oth Cir. Feb. 11,2022) (unpublished) (rejecting actual innocence claim where thepetitioner

argued that his claim of self-defense was supported by the discovery of two pieces of

allegedly exculpatory evidence contained within pretrial discovery materials: 1) statements

made by petitioner’s young children that allegedly were different from the inculpatory

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statements they gave to police; and 2.) a “cryptic notation” in a police report alluding that the

petitioner’s wife’s diary described weapons and booby traps, because such evidence was not

reasonably reliable).

Here, the Court agrees with Respondent that “Petitioner’s bald assertions and

reference to testimony given in a federal trial are largely Petitioner’s own characterizations,

sweeping conclusions, and—at times—nonsensical descriptions of testimony presented by

various witnesses and are wholly unsupported by any credible documentation or evidence

save for Petitioner’s own statements, speculation, and conjecture.” (Dkt; 12 at 21 (citing

Dkt. 1 at 28-45)). The Court finds this evidence is insufficient to support a claim of actual,

factual innocence.

Further, none of the allegedly “new” evidence shows that Petitioner is innocent of the

crimes ofwhich he was convicted. In fact, the evidence showed that he confessed to multiple

law enforcement officers, and the OCCA determined his statements to law enforcement were

voluntary. Pemberton, No. F-2004-1256, slip op. at 13-16 (Dkt. 12-1). The OCCA’s

recitation of the facts concerning Petitioner’s confession stated the following:

When Deputy Hall arrived [on the murder scene] several minutes [after the

shooting], [Petitioner] was sitting on the tailgate of his truck parked in the

driveway. Shortly thereafter, Sheriff Coleman arrived. By this time,

[Petitioner] was lying on the ground. [Petitioner] looked up at the Sheriff and

said, “she drove me crazy.” [Petitioner] said he did not want to talk with

anyone except the Sheriff. [Petitioner] was taken to the Sheriffs car where he

was read his fights. [Petitioner] waived those rights and admitted he drove

from Muskogee with the gun and shot the victim. When asked why he shot the

victim, [Petitioner] replied, “the bitch drove me crazy.” When asked why he

shot her six times, [Petitioner] said that was all the bullets he had.

[Petitioner] was transported to the countyjail by Deputy Jackson. On the way,

[Petitioner] cried a little and commented, “they’re going to fry me, aren’t

they?” [Petitioner] said he didn’t know why he shot his step-mother, that he

was mad, and that he should never have gone into the house. Upon entering

his cell, [Petitioner] announced, “I shot my step-mother,” “I shot her six

times.”

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At approximately 5:20 p.m., that day, [Petitioner] was interviewed by OSBI

Agent Jones. The interview, which was tape-recorded, was conducted in an

office at the Sheriffs Department, [Petitioner] waived his rights and agreed

to speak with Agent Jones without the benefit of legal counsel. [Petitioner]

admitted to shooting the victim, essentially setting out the facts as recited

above. In addition, [Petitioner] said he had drunk five 24 ounce beers that day,

before the shooting, and one beer after the shooting. He said that the victim

had cursed at him on the phone. He admitted to shooting the victim as she

walked down the hallway and then again as she lay on the floor. When asked

why he was so upset, he said he was mad at his father because he had turned

his business over to his sister and not him, and that he felt his father was

responsible for an injury he had received several years before while trying to

unclog a drain line.

Pemberton, No. F-2004-1256, slip op. at 3-4 (Dkt. 12-1).

Even with the purported discrepancies in the witness testimony at his state and federal

trials, the Court finds the other evidence presented at the state trial, such as Petitioner’s

confession,3 physical evidence recovered from the scene, and Petitioner’s father’ s eyewitness

testimony overwhelmingly demonstrated Petitioner’s guilt. Petitioner has not come close to

showing that it is “more likely than not any reasonable juror would have reasonable doubt”

about Petitioner’s convictions, Fontenot, 4 F. 4th at 1031 n.20 (citing House v. Bell, 547 U.S.

518,53 8 n. 3 0), if they hear the alleged minor discrepancies in witness testimony between the

two trials. See Creller v. Crow. No. 22-6062,2022 WL 16964948, at *5 (10th Cir. Nov. 16,

3 The Court acknowledges that Fontenot also involved a confession, yet the Tenth Circuit

found the actual innocence gateway was satisfied. Fontenot, 4 F.4th at 1055-56 (holding trustworthy

eyewitness accounts that cast doubt on Fontenot’s confession and “interlock with statements made

at or prior to [Fontenot’s] new trial” were enough to open the actual innocence gateway). In the

present case, however, the OCCA found the record supported the trial court’s finding of

voluntariness as to Petitioner’s statements to police after his arrest, because “the mere fact that

[Petitioner] may have been intoxicated does not render his statement inadmissible” and there was

“no indication in either situation in the present case that [Petitioner] was unable to understand the

meaning and effect of the rights read to him.” Pemberton, No. F-2004-1256 at 15 (Dkt. 12-1). The

OCCA further stated that the “specificity of detail [Petitioner] provided concerning his activities

leading up to and including the shooting demonstrates he was folly alert.” Id. at 15. Petitioner’s

self-serving statements alone are not enough to open the actual innocence gateway. In addition,

unlike Fontenot—in which the Tenth Circuit stated that the newly presented evidence was more likely

to open the actual innocence gateway because of the weakness of the State’s case—Petitioner never

challenges the sufficiency of the State’s evidence, only that his confession may have been the

product of either intoxication or coercion, both ofwhich the OCCA rejected in finding his confession

was voluntary. Pemberton, No. F- 2004-1256 at 13-16 (Dkt. 12-1 at 13-16).

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2022) (unpublished) (stating petitioner’s “new evidence” in the form of an affidavit his son

submitted “generally corroborating [p]etitioner’s version of events” failed to meet the actual

innocence standard as other evidence at trial, such as a confession by petitioner and medical

testimony, demonstrated petitioner’s guilt).

Regarding Petitioner s alleged recantation”4 during his federal suppression hearing

where he claimed that Deanna Pemberton was already dead when he entered the home, these

self-serving assertions of innocence do not constitute credible, reliable evidence sufficient

to show actual innocence. Resinger v. Bolt, No. CIV-19-161-JHP-KEW, 2020 WL 618822,

at 2 (E.D. Okla. Feb. 10, 2020) (unpublished). See also Pfeil v. Everett, 9 F. App’x 973,

979 (10th Cir. 2001) (unpublished) (“two self-serving assertions of innocence” are

“insufficient to make a colorable showing of innocence”).

Petitioner also asserts the testimony of Agent Dailey, combined with the testimony

of Dr. Sibley regarding Ms. Pemberton’s wounds and the trajectory of the shots fired in this

case, prove that Petitioner could not have fired the gun in such a way to have caused one of

the six gunshot wounds to Ms. Pemberton. (Dkt. 1 at 36-38). This claim, without more, is

not enough to show that he did not murder Ms. Pemberton. The jury heard all this evidence

fiom Agent Dailey and Dr. Sibley in both his State and federal trials, and both juries

convicted him. Therefore, it cannot be said that this evidence is “new” or demonstrates actual

innocence under McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (“[A] petitioner does not

meet the threshold requirement unless he persuades the district court that, in light of the new

Petitioner alleges the jury in his state case did not hear evidence that he “recanted” his

confession on Apnl 19, 2002 citing his post-conviction application. (Dkt. 1 at 29). Respondent

maintains Petitioner did not “recant” his statements about Ms. Pemberton’s murder, only that he

consumed the equivalent to a twelve pack of beer” before being questioned (Dkt 12 at 17-18

n.8). As set forth above, the OCCA fully considered that issue in Petitioner’s direct appeal and

determined his statements to police were admissible. Pemberton, No. F-2004-1256, slip op. at

?

\^-l)- Also, the jury heard ample evidence from several witnesses regarding

Petitioner s alcohol consumption the day of the murder during the State trial. Id.

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evidence, no juror, acting reasonably, would have voted .to find him guilty beyond a

reasonable doubt.”) (citations omitted).

Finally, Petitioner claims that his father, the government’s eyewitness in both the state

and federal trials, testified inconsistently in the 2021 federal trial when compared to the 2004

state trial. (Dkt. 1 at 36). This allegation is insufficient to meet the standard for actual

innocence. Respondent contends Petitioner’s actual complaint is that Mr. Pemberton

consistently claimed that Petitioner shot Ms. Pemberton once “real close to her head,” while

Dr. Sibley found no indication of a shot from that close a range. (Dkt. 1 at 34-36). Even if

Petitioner’s assertion is correct, however, this evidence does not prove that Petitioner didnot

shoot Ms. Pemberton, and it serves only as potential impeachment evidence for Mr.

Pemberton’s statements and cannot serve as the basis for an actual innocence claim. See

Stafford v. Saffle, 34 F.3d 1557, 1562-62 (10th Cir. 1994).

Petitioner is basing his actual innocence claim on evidence presented in his federal

trial. Respondent points out, however, that like the state jury, the federal jury convicted him

of murder beyond a reasonable doubt. Petitioner, therefore cannot show that in light of this

evidence, “it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt. Fontenot, 4 F.4th at 1030.

III.

Conclusion

After careful review, the Court finds that Petitioner’s petition for a writ of habeas

corpus is untimely under the AEDPA. Therefore, the petition must be dismissed.

IV.

Certificate of Appealability

The Court further finds Petitioner has not shown “at least, that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether [this] court was correct in its

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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also 28 U.S.C. §

2253(c). Therefore, Petitioner is denied a certificate of appealability. See Rule 11(a) of the

Rules Governing Section 2254 Cases.

ACCORDINGLY, Respondent’s motion to dismiss time-bairedpetition (Dkt. 11) is

granted, and Petitioner is denied a certificate of appealability. Petitioner’s motion for an

evidentiary hearing (Dkt. 13) is denied as moot.

IT IS SO ORDERED this 21s' day of March 2024.

HONORABLE RONALD A. WHITE

UNITED STATES DISTRICT JUDGE

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