Lamarr v. Nunn

Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 12, 2022 _________________________________ Christopher M. Wolpert Clerk of Court WALTER E. LAMARR, Petitioner - Appellant, v. No. 22-6063 (D.C. No. 5:22-CV-00129-D) SCOTT NUNN, (W.D. Okla.) Respondent - Appellee. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________ Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. _________________________________ Walter E. Lamarr, an Oklahoma prisoner represented by counsel, seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 petition. The district court dismissed his petition as untimely. Because the district court’s procedural ruling is not debatable, we deny a COA and dismiss this matter.

Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 2

I. BACKGROUND In 1995, Mr. Lamarr pleaded guilty in Oklahoma state court to trafficking in illegal drugs and was sentenced to thirty-five years’ imprisonment.1 In 2016, Mr. Lamarr filed a pro se application for post-conviction relief in state court, which was denied. In 2018, he filed a second application for post-conviction relief in state court arguing the state trial court lacked jurisdiction to convict him. Specifically, Mr. Lamarr argued “because he is a member of the Wichita and Affiliated Tribes, he committed the crimes for which he was convicted in ‘Indian Country,’ and the crimes for which he was convicted are covered by the Indian Assimilative Crimes Act, 18 U.S.C. § 1152,” the state trial court lacked jurisdiction to convict him. App. at 19. The state trial court denied this second application and the Oklahoma Court of Criminal Appeals affirmed.

In February 2022, Mr. Lamarr, represented by counsel, filed a 28 U.S.C. § 2254 petition in the United States District Court for the Western District of Oklahoma, arguing the convicting court lacked subject matter jurisdiction, based on McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The assigned magistrate judge recommended his petition be dismissed as untimely because it was not filed within one year of the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) effective date. See Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (“Where a conviction became final before AEDPA took effect, . . . the one year limitation period for a federal habeas petition starts on AEDPA’s Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 3 effective date, April 24, 1996.”). Mr. Lamarr objected to the recommendation, arguing “his conviction could never become final for the [purposes of] AEDPA” because the convicting court lacked jurisdiction. App. at 9. The district court overruled Mr. Lamarr’s objection, adopted the magistrate judge’s recommendation, and dismissed Mr. Lamarr’s § 2254 petition as untimely. The district court explained that Mr. Lamarr’s “argument that a challenge to the state district court’s jurisdiction on habeas review is not subject to the limitations period . . . lacks merit,” and his petition “is, therefore, untimely and barred by the statute of limitations.” Id. at 5–6. The district court also denied a COA.

Mr. Lamarr now seeks a COA in this court.

II. DISCUSSION Mr. Lamarr must “seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482 (10th Cir. 2000). Because the district court denied his petition on procedural grounds without reaching the merits, Mr. Lamarr must show “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,” to obtain a COA. Id. at 484. “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 Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 4 allowed to proceed further.” Id. Because the district court was correct to dismiss Mr. Lamarr’s petition as untimely, “no appeal [is] warranted.” Id. AEDPA establishes a one-year statute of limitations period during which a person in state custody may file a habeas petition. 28 U.S.C. § 2244(d); see also Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). Mr. Lamarr acknowledges that the one-year limitations period began on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Because his conviction became final before Congress enacted AEDPA, the one-year limitations period started on AEDPA’s effective date: April 24, 1996. See Fisher, 262 F.3d at 1143. Over twenty-five years passed between AEDPA’s effective date and when Mr. Lamarr filed his habeas petition in federal district court.

Mr. Lamarr’s sole argument is that because the state trial court lacked jurisdiction to convict him under McGirt, his conviction was never “final” and therefore, AEDPA’s time limitations period does not apply and cannot bar his habeas petition. This argument is meritless. We need not address whether the state trial court actually lacked jurisdiction to convict Mr. Lamarr because a habeas claim predicated on a convicting court’s lack of subject matter jurisdiction “is subject to dismissal for untimeliness.” Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011) (unpublished); see also Murrell v. Crow, 793 F.

App’x 675, 679 (10th Cir. 2019) (unpublished) (dismissing for untimeliness state prisoner’s habeas claim that the state court lacked jurisdiction to prosecute him); United States v. Patrick, 264 F. App’x 693, 694–95 (10th Cir. 2008) (unpublished) (affirming the district court’s dismissal of an untimely habeas petition challenging the convicting Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 5 court’s jurisdiction). This court has clearly explained that challenges to the convicting court’s jurisdiction are considered due process challenges, subject to AEDPA’s limitations period. See Yellowbear v. Wyo. Attorney Gen., 525 F.3d 921, 924 (10th Cir. 2008) (explaining “[a]bsence of jurisdiction in the convicting court is. . .a basis for federal habeas corpus relief cognizable under the due process clause”); Gibson v. Klinger, 232 F.3d 799, 803, 808 (10th Cir. 2000) (affirming dismissal of due process habeas claim as time barred under AEDPA). AEDPA’s limitations period therefore applies to Mr. Lamarr’s petition, and the district court was correct to dismiss it as time barred.2 Reasonable jurists therefore “could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484.

III. CONCLUSION For these reasons, we DENY a COA and DISMISS this matter.

Entered for the Court

Carolyn B. McHugh Circuit Judge