Winterhalter v. Nunn

Appellate Case: 22-6054 Document: 010110725718 Date Filed: 08/17/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 17, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
FRANKIE DEAN WINTERHALTER,
Petitioner - Appellant,
v. No. 22-6054
(D.C. No. 5:21-CV-01193-F)
SCOTT NUNN, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
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Frankie Winterhalter seeks a certificate of appealability (COA) to appeal the
dismissal by the United States District Court for the Western District of Oklahoma of his
application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a
COA to appeal denial of a § 2254 motion). Because the court correctly found the
application untimely, we deny a COA and dismiss the appeal.
In 2011 Mr. Winterhalter was convicted in Oklahoma of using a vehicle in the
discharge of a weapon and second-degree burglary. His convictions were affirmed by the
Oklahoma Court of Criminal Appeals (OCCA) in 2012.
*
This order is not binding precedent except under the doctrines of law of the case,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.
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In 2021 Mr. Winterhalter filed his § 2254 application in federal district court. His
only argument is based on McGirt v. Oklahoma, 140 S. Ct. 2452, 2459–60 (2020), in
which the Supreme Court held that the Creek Reservation had never been disestablished
and that its lands remained Indian country for purposes of the Major Crimes Act, 18
U.S.C. § 1153, which provides for exclusive federal jurisdiction over certain serious
offenses committed by Indians in Indian country. Alleging that he is an Indian (a member
of the Otoe-Missouria Nation) who committed his crimes in Indian country (the Cherokee
Reservation), Mr. Winterhalter argues that the Oklahoma state courts lacked jurisdiction
over his offenses. The magistrate judge recommended dismissing the § 2254 application
as untimely. The district court overruled Mr. Winterhalter’s objections to the magistrate
judge’s report and recommendation, adopted it, dismissed the application, and denied a
COA.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) 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) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id. If the application was denied on procedural
grounds, the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show “that
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jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides
that 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.” 28 U.S.C.
§ 2244(d)(1). The limitations period runs from the latest of four possible starting points,
but only one was invoked by the district court and Mr. Winterhalter does not challenge
that choice: “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). In this
context, “a judgment becomes final when the defendant has exhausted all direct appeals
in state court and the time to petition for a writ of certiorari from the United States
Supreme Court has expired (which is 90 days after the decision by the State’s highest
court).” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).
Because Mr. Winterhalter did not petition for a writ of certiorari from the Supreme
Court, his convictions became final on January 24, 2013, ninety days after affirmance by
the OCCA on October 26, 2012. He had one year from that date to file his § 2254
application. Instead, he waited several years and did not file his application until
December 22, 2021, far after the deadline. He raises three arguments against the time bar
to his § 2254 application.
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First, Mr. Winterhalter argues that the limitations period should be equitably
tolled. “[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) (internal
quotation marks omitted). Mr. Winterhalter is not entitled to equitable tolling because no
extraordinary circumstance prevented him from filing on time. He invokes the “general
misunderstanding between federal authorities and state authorities as to whether any
reservations continued to exist in Oklahoma,” which “was not cleared up until” McGirt.
Aplt. Br. at 5. But equity does not relieve a habeas applicant from a time bar simply
because he was one of many who had not thought to raise a legal argument earlier. See
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that
ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse
prompt filing.” (internal quotation marks omitted)); Head v. Wilson, 792 F.3d 102, 111
(D.C. Cir. 2015) (rejecting applicant’s argument that equitable tolling was available for
time until unfavorable precedent was superseded by favorable decision); see also Griffith
v. Bryant, 625 F. App’x 914, 916–17 (10th Cir. 2015) (that applicant “did not know until
a fellow inmate told him in 2013” about a potential legal claim was not extraordinary
circumstance warranting equitable tolling); Parkhurst v. Wilson, 525 F. App’x 736, 738
(10th Cir. 2013) (applicant’s “recent discovery of a relevant legal defense” was not
extraordinary circumstance warranting equitable tolling).
In discussing equitable tolling Mr. Winterhalter also references the fundamental-
miscarriage-of-justice exception. While it is true that courts have “equitable authority to
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invoke the miscarriage of justice exception to overcome expiration of the statute of
limitations governing a first federal habeas petition,” McQuiggin v. Perkins, 569 U.S.
383, 397 (2013), the Supreme Court has “explicitly tied the miscarriage of justice
exception to the petitioner’s innocence,” Schlup v. Delo, 513 U.S. 298, 321 (1995). Mr.
Winterhalter has not even alleged innocence, so he does not qualify for the exception.
Second, Mr. Winterhalter asserts that a criminal judgment entered by a court
without jurisdiction cannot become “final” under 28 U.S.C. § 2244(d)(1)(A). But, as
already noted, when a judgment becomes final depends only on when certain procedures
have been completed.
Third, Mr. Winterhalter contends that AEDPA’s statute of limitations is
unconstitutional as applied to his jurisdictional claim on three grounds: (a) it “violates the
exclusive and plenary power of Congress to confer jurisdiction on a sovereign with
respect to crimes committed by or against Indians or in Indian country,” Aplt. Br. at 3,
(b) it violates the Supremacy Clause of the United States Constitution, and (c) it violates
the Constitution’s Suspension Clause, see U.S. Const. art. I, § 9, cl. 2, which prohibits
suspension of the writ of habeas corpus unless necessary in cases of rebellion or invasion.
These arguments are nonstarters. AEDPA is itself an act of Congress; applying an act of
Congress can hardly encroach on its own powers. And applying AEDPA here could not
violate the Supremacy Clause, as acts of Congress like AEDPA are “the supreme Law of
the Land.” U.S. Const. art. VI, cl. 2. The Suspension Clause claim is also meritless.
“Whether the one-year limitation period violates the Suspension Clause depends on
whether the limitation period renders the habeas remedy ‘inadequate or ineffective’ to
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test the legality of detention.” Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998). But
Mr. Winterhalter has not shown that the statute of limitations has rendered the habeas
remedy inadequate or ineffective in his circumstances. See id. at 978 (AEDPA’s
limitations period did not render habeas remedy inadequate or ineffective in barring claim
by applicant who did not demonstrate actual innocence, incompetence, or entitlement to
equitable tolling); Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir. 2001) (similar).
Reasonable jurists could not debate the district court’s ruling that Mr.
Winterhalter’s § 2254 application was time-barred. We GRANT the motion for leave to
proceed in forma pauperis, DENY a COA, and DISMISS the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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