Thompson v. Whitten ( 2023 )

Appellate Case: 22-5067 Document: 010110807205 Date Filed: 02/02/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 2, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
GARRICK DON THOMPSON,
Petitioner - Appellant,
v. No. 22-5067
(D.C. No. 4:21-CV-00491-GFK-CDL)
RICK WHITTEN, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Garrick Thompson, an Oklahoma prisoner proceeding pro se,1 seeks a certificate
of appealability (COA) to appeal the district court’s order dismissing his federal habeas
petition under 28 U.S.C. § 2254 as untimely. For the reasons explained below, we deny
Thompson’s request and dismiss this matter.
Thompson is serving a 35-year prison sentence on his Oklahoma convictions for
assault and battery with a deadly weapon, robbery with a firearm, and first-degree
burglary. In November 2011, the Oklahoma Court of Criminal Appeals (OCCA) affirmed
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed.
R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
1
We liberally construe Thompson’s pro se pleadings, but we will not act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Appellate Case: 22-5067 Document: 010110807205 Date Filed: 02/02/2023 Page: 2
his convictions and sentence on direct appeal. Nearly a decade after his unsuccessful
direct appeal, Thompson sought postconviction relief in state court. Relying on McGirt v.
Oklahoma, 140 S. Ct. 2452 (2020), he argued that Oklahoma lacked jurisdiction to
prosecute him because he is an enrolled member of the Muscogee (Creek) Nation and his
crimes took place on the Creek Reservation. See id. at 2478 (holding Creek Reservation
remains “Indian country” for purposes of Major Crimes Act, 18 U.S.C. § 1153, because
Congress never disestablished it; as a result, “[o]nly the federal government, not the
State, may prosecute Indians for major crimes committed” there). The state district court
denied relief, and the OCCA affirmed, citing its recent precedent holding that McGirt
does not apply retroactively on collateral review to convictions that became final before
its announcement, like Thompson’s did. See State ex rel. Matloff v. Wallace, 497 P.3d
686, 688 (Okla. Crim. App. 2021), cert. denied, Parish v. Oklahoma, 142 S. Ct. 757
(2022).
Thompson then turned to federal court, filing the underlying § 2254 petition in
November 2021 to challenge the jurisdictional basis of his convictions. The State moved
to dismiss the petition as untimely because Thompson filed it more than one year after his
convictions became final. See 28 U.S.C. § 2244(d)(1)(A). The district court granted the
motion, dismissed the petition, and declined to issue a COA.
Thompson now requests a COA from this court, seeking to challenge the district
court’s order dismissing his federal habeas petition. See 28 U.S.C. § 2253(c)(1)(A). To
obtain a COA, Thompson must “show[], at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
2
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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). If we conclude that
reasonable jurists would not debate the district court’s procedural ruling, we need not
address the constitutional question. Id. at 485.
Thompson argues that reasonable jurists could debate whether his petition was
timely. The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-
year statute of limitations for filing a federal habeas petition. See § 2244(d)(1).
Ordinarily, that limitations period begins to run when the state-court judgment becomes
final “by the conclusion of direct review or the expiration of the time for seeking such
review.” § 2244(d)(1)(A). But AEDPA delays this start date if (1) state action created an
unlawful impediment to filing the petition, (2) the petitioner asserts a constitutional right
newly recognized by the Supreme Court and made retroactive to cases on collateral
review, or (3) the factual predicate for the claim could not previously have been
discovered through due diligence. § 2244(d)(1)(B)–(D). Here, the district court concluded
that Thompson’s one-year clock began to run from the date of final judgment in February
2012, when the 90-day window for seeking certiorari review at the United States
Supreme Court expired following his direct appeal to the OCCA, and therefore lapsed
one year later. See Sup. Ct. R. 13.1. In reaching this conclusion, the district court rejected
Thompson’s suggestion that § 2244(d)(1)(C) or (D) applied to delay the limitations
period based on either a newly recognized constitutional right or a diligently discovered
factual predicate.
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On appeal, Thompson again invokes § 2244(d)(1)(D), which runs the one-year
limitations period from “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” In support,
Thompson asserts the OCCA’s August 2021 ruling in Matloff, that McGirt has no
retroactive effect, created a new “factual predicate” under § 2244(d)(1)(D) because the
OCCA relied on it to dispose of his request for state postconviction relief. In his view,
“Matloff is wrong,” and he had one year from the date of the decision to challenge it.
Aplt. Br. 8. But Thompson’s habeas petition challenges the jurisdictional basis of his
convictions, not the OCCA’s decision in Matloff—a case unrelated to his own that had no
legal effect on his convictions. See § 2254(a) (specifying that federal courts may entertain
§ 2254 petition “only on the ground that [petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States”). And Thompson’s petition alleges
just two facts that together constitute the factual predicate for his claim: (1) he is a
member of the Muscogee (Creek) Nation and (2) his crimes occurred in Indian country.
Because both these facts were available to Thompson through due diligence before his
judgment became final, he cannot benefit from § 2244(d)(1)(D).
Even if we liberally construe Thompson’s argument that McGirt applies
retroactively (and Matloff erred in holding otherwise) as invoking § 2244(d)(1)(C), his
argument fails. That provision restarts the one-year clock on “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.” § 2244(d)(1)(C). But contrary to Thompson’s assertion,
4
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“McGirt announced no new constitutional right”; it merely “resolved a question of
‘statutory interpretation,’” determining that Congress had not disestablished the Creek
Reservation. Pacheco v. El Habti, 48 F.4th 1179, 1191 (10th Cir. 2022) (quoting McGirt,
140 S. Ct. at 2474); see also Owens v. Whitten, No. 22-5106, 2022 WL 17972141, at *1
(10th Cir. Dec. 28, 2022) (noting this court’s recent caselaw “make[s] clear” that “the
one-year limitations period set out in § 2244(d)(1)(A), rather than the ones set out in
§ 2244(d)(1)(C) and/or (D), applies to McGirt-based challenges to the validity of state
convictions”).
Thus, Thompson fails to show that reasonable jurists could debate the district
court’s procedural ruling that his petition was time-barred. We therefore deny his COA
request and dismiss this appeal. See Slack, 529 U.S. at 484. As a final matter, we grant
Thompson’s motion to proceed in forma pauperis on appeal.
Entered for the Court
Nancy L. Moritz
Circuit Judge
5