Graham v. White

678 F.Supp.3d 1332

Kimberly GRAHAM, Petitioner, v. Tamika WHITE, Warden, Respondent.

Case No. 23-CV-0164-CVE-SH

United States District Court, N.D. Oklahoma

Signed June 22, 2023

Thomas Richard O'Carroll, O'Carroll & O'Carroll, Tulsa, OK, for Petitioner

Caroline Elizabeth Jane Hunt, Jennifer L. Crabb, Office of the Attorney General, Oklahoma City, OK, for Respondent.

OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

Before the Court is petitioner Kimberly Graham's 28 U.S.C. § 2254 petition for writ of habeas corpus filed April 25, 2023 (Dkt. # 1). Having considered the petition, the response in opposition to the petition (Dkt. # 8), the reply brief (Dkt. # 9), and applicable law,¹ the Court concludes that Graham is in state custody in violation of her Fourteenth Amendment right to due process. The Court therefore grants the petition and directs White to immediately release Graham from state custody.

I.

Graham brings this action to challenge the lawfulness of her custody under the reinstated judgment and sentence entered against her in April 2023, in Tulsa County District Court Case No. CF-2007-5987. Dkt. # 1, at 1; Dkt. # 8-14.² In that case, Graham was sentenced, in September 2009, to serve 107 years in custody of the Oklahoma Department of Corrections ("ODOC") following her convictions as to five counts of first-degree manslaughter, in violation of OKLA. STAT. tit. 21, § 711 (2001), and one count of leaving the scene of a fatality accident, in violation of OKLA. STAT. tit. 47, § 10-102.1 (2001). Dkt. # 8-5, at 1. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed Graham's judgment and sentence on August 31, 2011. Id. at 1, 7. Graham did not seek further direct review by filing a petition for writ of certiorari in the United States Supreme Court ("Supreme Court"). Dkt. # 8, at 2 n.4. Her judgment became final on November 30, 2011. Dkt. # 8-9, at 4.

On November 21, 2012, Graham applied for postconviction relief in the Tulsa County District Court ("TCDC"), under Oklahoma's Post-Conviction Procedure Act, OKLA. STAT. tit. 22, §§ 1080-1088.1 (2022). Dkt. # 1-2, at 109; Dkt. # 8, at 2. The TCDC did not order a response or take any other action on Graham's application.³ Dkt. # 8-9, at 2. On August 30, 2017, Graham supplemented her pending application with a new claim. Dkt. # 1-2, at 109; Dkt. # 8, at 2; Dkt. # 8-6, at 1; see OKLA. STAT. tit, 22, § 1086 (2022) ("All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application."). She claimed that the state did not have jurisdiction to prosecute her because she is Indian and she committed the crimes for which she was convicted within the boundaries of the Muscogee (Creek) Nation Reservation ("Indian-country jurisdiction claim"). Dkt. # 8-6, at 1-4.

Because Graham asserted her Indian-country jurisdiction claim at the beginning of what proved to be a fundamental shift in the understanding of how criminal jurisdiction is allocated among tribal, state, and federal authorities in Oklahoma—and because that shift is central to the Fourteenth Amendment claim she presents in this habeas action—the Court discusses the procedural history of Graham's quest for postconviction relief in the context of legal developments related to her claim and state laws governing postconviction relief.

As legal support for her Indian-country jurisdiction claim, Graham cited 18 U.S.C. §§ 1151-1153, Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), and Murphy v. Royal, 866 F.3d 1164 (10th Cir. Aug. 8, 2017), amended and superseded on denial of reh'g by 875 F.3d 896 (10th Cir. 2017) ("Murphy I"), aff'd sub nom. Sharp v. Murphy, — U.S. —, 140 S. Ct. 2412, 207 L.Ed.2d 1043 (2020) ("Murphy II"). Dkt. # 8-6, at 1-4. In Murphy I, the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") considered a habeas petitioner's Indian-country jurisdiction claim that was first raised in state court through a second postconviction appeal. 875 F.3d at 907-09. Applying Bartlett, the Tenth Circuit held that because Congress has not disestablished the Muscogee (Creek) Nation Reservation, the land within the boundaries of that reservation is "Indian country" for purposes of the Major Crimes Act, 18 U.S.C. § 1153 ("MCA"). Murphy I, 875 F.3d at 966.⁴ Under § 1153(a), only the federal government has jurisdiction to prosecute certain crimes, including manslaughter, that are committed by Indians within "Indian country." See McGirt v. Oklahoma, — U.S. —, 140 S. Ct. 2452, 2478, 207 L.Ed.2d 985 ("[T]he MCA applies to Oklahoma according to its usual terms: Only the federal government, not the State, may prosecute Indians for major crimes committed in Indian country."); id. at 2480 ("When Congress adopted the MCA, it broke many treaty promises that had once allowed tribes like the Creeks to try their own members. But, in return, Congress allowed only the federal government, not the States, to try tribal members for major crimes."); see also 18 U.S.C. § 1151 (defining "Indian country"). As factual support for her claim, Graham attached to her application evidence showing that she has a degree of Indian blood and that she is a member of the Cherokee Nation.⁵ Dkt. # 8-6, at 6. The TCDC did not order a response or take any other action on Graham's supplemental application until July 17, 2020, after the Supreme Court issued two decisions central to her Indian-country jurisdiction claim. Dkt. # 8-9, at 2.

On July 9, 2020, the Supreme Court issued decisions in McGirt v. Oklahoma, — U.S. —, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020), and Murphy II. In McGirt, an Oklahoma prisoner petitioned the Supreme Court for a writ of certiorari to review the OCCA's decision denying his application for postconviction relief. See McGirt v. Oklahoma, — U.S. —, 140 S. Ct. 659, 205 L.Ed.2d 417 (2019) (granting petition for writ of certiorari). Like the habeas petitioner in Murphy I, the prisoner in McGirt claimed that because he is Indian, the federal government, not the state, should have prosecuted him for major crimes he committed within the boundaries of the Muscogee (Creek) Nation Reservation. McGirt, 140 S. Ct. at 2459; Murphy I, 875 F.3d at 928. The question presented in McGirt was narrow: whether the land promised to the Muscogee (Creek) Nation through treaties signed by the United States government in 1832 and 1833 "remains an Indian reservation for purposes of federal criminal law." 140 S. Ct. at 2459. The McGirt Court held that because Congress did not disestablish the Muscogee (Creek) Nation Reservation the land within the historical boundaries of that reservation is "Indian country," as defined in 18 U.S.C. § 1151(a), and, as a result, the federal government has exclusive jurisdiction, under the MCA, to prosecute certain crimes committed by Indians within those boundaries. McGirt, 140 S. Ct. at 2468, 2479-80. Relying on its decision in McGirt, the Supreme Court in Murphy II summarily affirmed the Tenth Circuit's decision in Murphy I. Murphy II, 140 S. Ct. at 2412. While the question in McGirt was narrow, the impact of its decision was broad. As the McGirt Court explained, Oklahoma had been prosecuting Indians for crimes committed in Indian country since statehood, despite the "plain terms" of the MCA. 140 S. Ct. at 2476-78. The McGirt Court recognized that its decision "risk[ed] upsetting some convictions," but reasoned that "[o]ther defendants who do try to challenge their state convictions may face significant procedural obstacles, thanks to well-known state and federal limitations on postconviction review in criminal proceedings." Id. at 2479-80.

On July 17, 2020, the TCDC ordered a status conference on Graham's application for postconviction relief. Dkt. # 1-2, at 110. The state filed a response on October 2, 2020, and, over the next several months, both parties filed additional briefs and motions focusing solely on Graham's Indian-country jurisdiction claim. Id. at 110-11. The state's primary argument was that Graham's claim was procedurally barred, either because she waived it by failing to raise it on direct appeal or because the doctrine of laches barred relief. Dkt. # 8-10, at 14.

On March 11, 2021, the OCCA decided an Indian-country jurisdiction claim asserted by a non-Indian Oklahoma prisoner who had been sentenced to death. Dkt. # 9-2 (Bosse v. State, 484 P.3d 286 (Okla. Crim. App. 2021) ("Bosse I"), corrected (Mar. 19, 2021) ("Bosse I"), withdrawn, and superseded by 499 P.3d 771 (Okla. Crim. App. 2021) ("Bosse II"), cert. denied, — U.S. —, 142 S. Ct. 1136, 212 L.Ed.2d 23 (2022)).⁶ Applying McGirt's reasoning, the OCCA held, in a published opinion, that Congress did not disestablish the Chickasaw Reservation. Id. at 5-10. Based on that holding, the OCCA granted postconviction relief to the prisoner who, like Graham, sought postconviction relief to invalidate convictions that were final before McGirt was decided, and the OCCA remanded the case to the state district court with directions to dismiss.⁷ Id. at 1, 16-19, 23-24. Significantly, in Bosse I, the OCCA rejected the state's position that the Indian-country jurisdiction claim was procedurally barred through waiver or by the doctrine of laches. Id. at 16-19. The OCCA reasoned that it had "repeatedly held that the limitations of post-conviction or subsequent post-conviction statutes do not apply to claims of lack of jurisdiction," and the OCCA expressly stated that "McGirt provides a previously unavailable legal basis for [the Indian-country jurisdiction] claim." Id. at 18-19. The OCCA stayed issuance of the mandate in Bosse I for twenty days, or until March 31, 2021. Id. at 24. On March 31, 2021, the OCCA continued the stay of the issuance of the mandate in Bosse I, pending its ruling on the state's motion for leave to file a petition for rehearing. Id. On April 7, 2021, the OCCA denied the state's petition for rehearing, reasoning that a petition for...