Pacheco v. El Habti.
No. 20-7002. 9/15/2022. E.D.Okla. Judge Hartz. Habeas Corpus Petition—28 USC § 2254—Statute of Limitations—State Court Jurisdiction—Major Crimes Act—Actual Innocence Exception—New Constitutional Right Exception—Certificate of Appealability.
September 15, 2022
Appellant was convicted in state court of first-degree child-abuse murder in 2014. She filed an application under 28 USC § 2254 seeking habeas corpus relief in federal district court. The application alleged insufficient evidence and ineffective assistance of counsel. While the application was pending, the Tenth Circuit decided Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), which held that a large portion of Oklahoma is “Indian country” for purposes of the Major Crimes Act, which provides for exclusive federal jurisdiction over certain enumerated crimes committed by Indians in “Indian country.” Because appellant is an Indian found to have committed a serious crime at a location since determined to be on an Indian reservation, she sought to amend her application to assert that the state courts lacked jurisdiction over the offense.
The district court denied the request to amend on the ground that the new claim was time-barred and thus the amendment would be futile. A one-year period of limitation applies to an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment of a state court. On appeal, appellant maintained that the actual innocence exception excused her jurisdictional claim from the statute of limitations, or, alternatively, the statute of limitations reset when the US Supreme Court affirmed Murphy and decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), rendering timely her request to amend.
The Tenth Circuit rejected appellant’s actual innocence exception argument, which requires a petitioner to show that it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence. Here, appellant did not argue innocence based on new evidence, but rather that the alleged crime did not occur in Indian country. No case law supports the proposition that the factual-innocence gateway is available to one convicted by the wrong jurisdiction. This exception is based on equity, and factual innocence turns on the moral culpability of the defendant, not jurisdictional issues.
The Tenth Circuit further held that McGirt did not announce a new constitutional rule; rather, it resolved a question of statutory interpretation. The district court therefore did not err in denying the motion to amend.
The Tenth Circuit declined to issue a certificate of appealability (COA) on eight claims unrelated to the jurisdictional issue. A COA will issue only if the applicant has made a substantial showing of the denial of a constitutional right, and appellant failed to meet this burden.
The district court’s order denying leave to amend was affirmed, and the Tenth Circuit denied a COA on the additional claims.