Woods v. Nunn

Appellate Case: 21-6117 Document: 010110611724 Date Filed: 11/30/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DAVID DEAN WOODS,
Petitioner - Appellant,
No. 21-6117
v. (D.C. No. 5:21-CV-00237-G)
(W.D. Okla.)
SCOTT NUNN,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
David Dean Woods, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA
to appeal “the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court”). He also seeks leave to
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 21-6117 Document: 010110611724 Date Filed: 11/30/2021 Page: 2
proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we
deny both requests and dismiss this matter.1
I. BACKGROUND
Mr. Woods was convicted of trafficking illegal drugs, harboring a fugitive, being a
felon in possession of a firearm, and possessing a controlled substance. He was
sentenced to 20 years in prison.
Mr. Woods sought post-conviction relief in state court. Relying on McGirt v.
State of Oklahoma, 140 S. Ct. 2452 (2020), he argued the state court lacked
jurisdiction because the underlying crimes occurred on the Chickasaw Nation’s land.
The court denied the application, stating that Mr. Woods “had failed to prove or even
allege that he is a member of any recognized Indian tribe.” ROA at 18.
In his appeal (“Petition in Error”) to the Oklahoma Court of Criminal Appeals
(“OCCA”), Mr. Woods argued that “the 1866 Treaty between the Chickasaws and the
United States reserves civil and criminal jurisdiction to the Chickasaw Nation for matters
that arise in Chickasaw Nation” for Indians and non-Indians alike. Id. at 19-20. The
OCCA affirmed the denial of post-conviction relief, noting that Mr. Woods’s application
stated “that he is not a member of any Indian tribe.” Id. at 20.
Mr. Woods next filed a § 2254 application in federal district court, again alleging
the state court lacked jurisdiction because the crimes occurred in Indian country. In a
1
Because Mr. Woods appears pro se, “we liberally construe his filings, but we
will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
2
Appellate Case: 21-6117 Document: 010110611724 Date Filed: 11/30/2021 Page: 3
Report and Recommendation (“R&R”), a magistrate judge recommended dismissal of the
application because Mr. Woods is not a member of an Indian tribe and his crimes were
not committed against an Indian tribe member. The district court, having received no
objection from Mr. Woods, adopted the recommendation and entered judgment
dismissing the action.
Three weeks later, the district court received an objection to the R&R from Mr.
Woods. Instead of relying on McGirt, Mr. Woods claimed that “the State Court lacked
jurisdiction due to treaty provisions found in the 1830 Treaty of Dancing Rabbit Creek
(Article 4) 7 Stat. 333, and the 1866 Treaty with Choctaws and Chickasaws (Article 8),
14 Stat. 769.” Id. at 34. He further stated that his “actual claim relies on Article 8 of the
1866 Treaty, . . . which states that the tribe shall have jurisdiction over ‘people other than
Indians’ who commit crimes within their boundaries.” Id. Mr. Woods also moved to
vacate the dismissal of his § 2254 application.
The district court considered the objection, which did not contest that Mr. Woods
is a non-Indian or that his crimes were not committed against an Indian. The court stated
that (1) his § 2254 application cited McGirt and made no reference to treaties, (2) his
objection failed to address the numerous authorities cited in the R&R holding that state
courts retain jurisdiction over victimless crimes even when they occur on Indian land, and
(3) the cited portion of the 1866 Treaty did not confer on the Chickasaw Tribe exclusive
authority to prosecute non-Indians who commit crimes on Indian land. The court
therefore denied Mr. Woods’s objection and his motion to vacate. It also denied a COA.
3
Appellate Case: 21-6117 Document: 010110611724 Date Filed: 11/30/2021 Page: 4
II. DISCUSSION
We must grant a COA to review a § 2254 application. 28 U.S.C. § 2253(c)(1)(A);
see Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To receive a COA, an applicant
must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), and must show “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
In his brief to this court Mr. Woods writes that he sought post-conviction relief in
the state district court by claiming that “the 1830 and 1866 Treaties . . . reserve[d] civil
and criminal jurisdiction to the Choctaw and Chickasaw Nation for matters that arise in
Choctaw and Chickasaw Nation.” Aplt. Br. at 1. The OCCA said that Mr. Woods relied
only on the 1866 Treaty. ROA at 19-20. In his § 2254 application, Mr. Woods failed to
mention any treaty. The district court, however, responding to Mr. Woods’s objection to
the R&R, held the 1866 Treaty did not deprive the state court of jurisdiction over Mr.
Woods’s criminal prosecution.2
2
The district court did not address the 1830 Treaty given that Mr. Woods said in
his objection to the R&R that his “actual claim relies on Article 8 of the 1866 Treaty.”
ROA at 34. Also, in his appeal to the OCCA from the state district court’s denial of his
post-conviction petition, his “Brief in Support of Petition in Error” relied only on the
1866 Treaty. Although this brief is not in the record on appeal, we may take judicial
notice of it. See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010)
(recognizing a court may take judicial notice of docket information from another court);
Pace v. Swerdlow, 519 F.3d 1067, 1072–73 (10th Cir.2008) (stating a federal court may
take judicial notice of state court documents); Fed. R. Evid. 201(b)(2).
4
Appellate Case: 21-6117 Document: 010110611724 Date Filed: 11/30/2021 Page: 5
In reaching this conclusion, the district court said that Mr. Woods relied on Article
8 of the 1866 Treaty providing that the annual tribal general assembly has the “power to
legislate upon all subjects and matters pertaining to . . . the administration of justice
between members of the several tribes of the said Territory, and persons other than
Indians and members of said tribes or nations.” Id. at 46 (quoting Treaty with the
Choctaw and Chickasaw art. 8, ¶ 4, Apr. 28, 1866, 14 Stat. 769).
In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 (1978), the Supreme
Court held that “Indians do not have criminal jurisdiction over non-Indians absent
affirmative delegation of such power by Congress.” Mr. Woods has not advanced a
specific or developed argument as to why the 1866 Treaty qualifies as an “affirmative
delegation.” See United States v. Wells, 873 F.3d 1241, 1254 (10th Cir. 2017)
(explaining that we may deem waived a pro se litigant’s inadequately briefed argument).
Without doing so, his habeas application fails under Oliphant and this court’s precedent.3
In United States v. Langford, 641 F.3d 1195, 1197 (10th Cir. 2011), this court held
that a state court has exclusive jurisdiction over the prosecution of a crime that occurred
in Indian country when, as in this case, there is no Indian perpetrator or victim. See
3
In his brief, Mr. Woods refers to the Treaty of Dancing Rabbit Creek, Sept. 27,
1830, 7 Stat. 333, and the Treaty of Doaksville, 11 Stat. 573, Jan. 17, 1837, Aplt. Br. at 3,
but he did not include them in his § 2254 application and mentioned the 1830 Treaty only
in passing in his objection to the R&R. He thus has waived any arguments based on
those treaties. See United States v. Nelson, 868 F.3d 885, 891 n.4 (10th Cir. 2017) (Our
“rule against considering new arguments on appeal applies equally when ‘a litigant
changes to a new theory on appeal that falls under the same general category as an
argument presented at trial.’”).
5
Appellate Case: 21-6117 Document: 010110611724 Date Filed: 11/30/2021 Page: 6
United States v. McBratney, 104 U.S. 621, 624 (1881). Mr. Woods admitted in his state
post-conviction application that he is not a member of an Indian tribe. ROA at 20. And
he does not contest that he did not commit a crime against an Indian. Thus, even if Mr.
Woods committed his crimes on Chickasaw land, the state court properly exercised
jurisdiction.
Mr. Woods has failed to show that reasonable jurists would debate the district
court’s dismissal of his § 2254 application. He thus is not entitled to a COA.
III. CONCLUSION
We deny Mr. Woods’s requests for a COA and ifp status, and we dismiss this
matter.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
6