Graham v. White

101 F.4th 1199

Kimberly GRAHAM, Petitioner - Appellee, v. Tamika WHITE, Warden, Respondent - Appellant.

No. 23-5069

United States Court of Appeals, Tenth Circuit

FILED May 17, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:23-CV-00164-CVE-SH)

Jennifer L. Crabb, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma (Gentner F. Drummond, Attorney General for the State of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellant.

T. Richard O'Carroll, O'Carroll & O'Carroll, Tulsa, Oklahoma, for Petitioner-Appellee.

Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal addresses due process when a state district court modifies an order after the controlling precedent changes. Here a state district court relied on existing precedent to vacate a defendant's convictions. But the state appellate court then overruled that precedent. With this change in precedent, could the state district court modify its prior ruling and reinstate the convictions without violating the defendant's right to due process? The state appeals court answered yes, but the federal district court answered no and granted habeas relief to the defendant.

We reverse the grant of habeas relief. Regardless of whether the state appeals court had erred, its rejection of the due process claim was at least reasonable based on the facts and Supreme Court precedent.

Background

1. The state district court vacates the defendant's convictions based on existing precedent.

This appeal grew out of Ms. Kimberly Graham's state convictions for committing first-degree manslaughter and leaving the scene of a fatal accident. See Okla. Stat. tit. 21, § 711; Okla. Stat. tit. 47, § 10-102.1. After the convictions became final, Ms. Graham applied for postconviction relief on grounds that she was a Native American and the events took place on a reservation. While this application was pending, the Supreme Court held in McGirt v. Oklahoma that

• Congress had not disestablished the reservation and

• the State of Oklahoma lacked jurisdiction to prosecute crimes committed by Native Americans within this reservation.

— U.S. —, 140 S. Ct. 2452, 2459, 207 L.Ed.2d 985 (2020).¹

But did McGirt apply to defendants (like Ms. Graham), whose convictions had already become final? The Oklahoma Court of Criminal Appeals initially answered yes in Bosse v. State, 484 P.3d 286 (Okla. Crim. App. 2021). The day after Bosse took effect,² the state district court granted post-conviction relief to Ms. Graham and vacated her convictions.

2. The state district court reinstates the convictions after the state appeals court changes its precedent.

The next day, the Oklahoma Court of Criminal Appeals recalled its mandate in Bosse. Appellant's App'x vol. 1, at 90-91. Despite recall of the Bosse mandate, the State declined to appeal the vacatur of Ms. Graham's convictions. After the appeal deadline expired, the Oklahoma Court of Criminal Appeals overruled Bosse and decided that McGirt didn't apply retroactively to convictions that had become final. State ex rel. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021).³

Image materials not available for display.

Given the new decision, could the state district court modify its initial order and reinstate Ms. Graham's convictions? The State thought so and asked the state district court to

• rescind the initial order (vacating the convictions) and

• reinstate the convictions.

Appellant's App'x vol. 1, at 150-60. The state district court granted these requests. Id. at 82-85.

With the convictions reinstated, Ms. Graham asked the Oklahoma Court of Criminal Appeals for a writ of prohibition, arguing that a liberty interest had arisen from the order vacating her convictions. Id. at 80; see Boutwell v. Keating, 399 F.3d 1203, 1212 (10th Cir. 2005) ("[A] liberty interest inherent in the Due Process Clause arises upon an inmate's release from confinement."). The resulting question was whether the State could deprive her of that liberty interest based on the state appellate court's change in precedent. Ms. Graham urged the state appeals court to answer no, arguing that reinstatement of her convictions would arbitrarily deprive her of a liberty interest.

The Oklahoma Court of Criminal Appeals disagreed with Ms. Graham and denied her request for a writ of prohibition. Graham v. Priddy, No. PR-2021-1332, slip op. at 4 (Okla. Crim. App. Apr. 18, 2023) (unpublished). In denying the request, the court reasoned that

• the new precedent had prevented application of McGirt to convictions that had already become final and

• the initial order (vacating the convictions) had been "unauthorized under Oklahoma law."

Id. at 3-4.

3. The federal district court concludes that reinstatement of Ms. Graham's convictions was an arbitrary deprivation of her liberty interest.

Ms. Graham sought habeas relief, claiming that

• the initial order (vacating the convictions) had created a liberty interest and

• the reinstatement of her convictions had arbitrarily stripped her of that liberty interest.

The federal district court agreed with Ms. Graham and granted habeas relief. The State appeals, arguing that

• habeas relief isn't available because the alleged defects involve only state law and post-conviction procedures and

• the federal district court should have deferred to the state appeals court because it had acted reasonably.

We reject the State's arguments about the availability of a habeas claim. Ms. Graham is asserting federal claims, not state-law claims, and she's challenging the reinstatement of her convictions rather than defects in post-conviction procedures. But we agree with the State on the reasonableness of the state appellate court's decision. Because that decision rested on a reasonable application of the facts and Supreme Court holdings, the federal district court should have deferred to the state appeals court. With that deference, we reverse the grant of habeas relief.

Availability of Habeas Relief

The State argues that Ms. Graham couldn't obtain habeas relief even if she were right on the merits because the claim involves only a violation of state law and misapplication of post-conviction procedures. We disagree with the State.

1. Ms. Graham alleged a violation of the Fourteenth Amendment, not just state law.

Habeas relief is available for a violation of the federal constitution, but not for a violation of state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The State points out that Ms. Graham alleges a misapplication of Oklahoma law. If Ms. Graham had stopped there, her claim wouldn't support habeas relief. But Ms. Graham also alleges a denial of due process from the misapplication of state law. These allegations involve a violation of not only state law but also the federal constitution.

Granted, the theories involving state law and the federal constitution are intertwined. But "in rare circumstances, a determination of state law can be so arbitrary or capricious as to constitute an independent due process violation." Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir. 2007) (alterations and quotation marks omitted) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)).

Ms. Graham not only labels her claim as constitutional, but also alleges that it was arbitrary for the state court to jettison the initial order (vacating the convictions). Though this allegation turns on an antecedent question of state law, an arbitrary application of state law could impinge on the right to due process. See id. So the claim isn't confined to a violation of state law.

2. The claim involves a challenge to convictions rather than postconviction procedures.

Habeas corpus generally involves challenges to the fact or duration of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); McIntosh v. U. S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997). These challenges typically involve defects in the underlying conviction.

From time to time, however, prisoners seek habeas relief based on perceived errors in a state's corrective processes. Many states, like Oklahoma, provide post-conviction remedies even though they're not constitutionally required. See Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (concluding that states have no constitutional obligation to provide post-conviction relief). Given the availability of these remedies, a defendant might seek habeas relief based on a state court's errors in the post-conviction proceedings. But habeas relief is unavailable when the error involves only the post-conviction procedures rather than the imposition of the conviction or sentence. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) ("[B]ecause the constitutional error [the petitioner] raises focuses only on the State's post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim.").

The State characterizes Ms. Graham's claim as a challenge to postconviction procedures. But Ms. Graham isn't complaining about those procedures. She is instead complaining about the reinstatement of her convictions through the state district court's grant of post-conviction relief to the State.

Typically, a conviction comes after a trial or guilty plea. Here the convictions were reinstated through post-conviction relief to the State. But the impact on Ms. Graham was the same. With the convictions reinstated, Ms. Graham could seek habeas relief just like any other prisoner.⁴

Error in Granting Habeas Relief

Though a writ of habeas corpus could be available for a constitutional violation, we must determine whether the federal district court was correct in issuing the writ. In issuing the writ, the court concluded that it could decide in the first instance whether...