Caldwell v. Dowling

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 30, 2023
• Docket: 22-6185
• Status: Unpublished

Opinion

Appellate Case: 22-6185 Document: 010110835309 Date Filed: 03/30/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 30, 2023 _________________________________ Christopher M. Wolpert Clerk of Court JIMMY CALDWELL,

Petitioner - Appellant,

v. No. 22-6185 (D.C. No. 5:22-CV-00340-JD) JANET DOWLING, Warden, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. _________________________________

Jimmy Caldwell, a state prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to challenge the district court’s order denying his habeas petition as

untimely. For the reasons explained below, we deny his COA request and dismiss this

matter.

In 2004, Caldwell pleaded guilty to one count of child sexual abuse in Oklahoma

state court. The state court imposed a 50-year sentence, and Caldwell did not appeal. In

2020, Caldwell sought postconviction relief in state court, contending that the state court

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 Although we liberally construe Caldwell’s pro se filings, we do not act as his advocate or create arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Appellate Case: 22-6185 Document: 010110835309 Date Filed: 03/30/2023 Page: 2

lacked jurisdiction over him under McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and the

Major Crimes Act (MCA), 18 U.S.C. § 1153(a). The state trial court denied relief, and

the Oklahoma Court of Criminal Appeals (OCCA) affirmed.

Caldwell then filed this habeas petition under 28 U.S.C. § 2254, advancing the

same lack-of-jurisdiction argument. The magistrate judge assigned to Caldwell’s case

recommended dismissing the petition as untimely. Although Caldwell did not file formal

objections to this recommendation, he twice filed notices of appeal and COA motions

with this court. After Caldwell voluntarily dismissed his first attempted appeal and we

sua sponte dismissed the second (given the absence of a final judgment from the district

court), the district court liberally construed Caldwell’s attempted appellate filings as

objections. The district court then overruled those objections, adopted the magistrate

judge’s report and recommendation with minor modifications, and held that Caldwell’s

petition was untimely. It therefore dismissed the petition with prejudice and declined to

issue a COA.

Caldwell now requests a COA from this court, seeking to challenge the dismissal

of his habeas petition.2 See 28 U.S.C. § 2253(c)(1)(A). We will grant a COA if Caldwell

can “show[], at least, 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.” Slack v.

2 We construe Caldwell’s combined opening brief and COA application as a notice of appeal. See Smith v. Barry, 502 U.S. 244, 248–49 (1992) (holding that brief filed in appellate court was effective as notice of appeal); Martin v. Rios, 472 F.3d 1206, 1207 (10th Cir. 2007) (treating COA application as notice of appeal). 2 Appellate Case: 22-6185 Document: 010110835309 Date Filed: 03/30/2023 Page: 3

McDaniel, 529 U.S. 473, 484 (2000). If we conclude that reasonable jurists would not

debate the district court’s procedural ruling, we need not address the constitutional

question. Id. at 485.

We begin with the procedural timeliness ruling. There is a one-year deadline for

filing a federal habeas petition. See 28 U.S.C. § 2244(d)(1). Typically, this one-year

period begins to run when the state-court judgment becomes final “by the conclusion of

direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). But

this start date can be delayed if (1) state action created an unlawful impediment to filing

the petition, (2) the petitioner asserts a constitutional right newly recognized by the

Supreme Court that applies retroactively to cases on collateral review, or (3) the factual

predicate for the claim could not previously have been discovered through due diligence.

§ 2244(d)(1)(B)–(D).

Here, the district court concluded that Caldwell’s deadline began running when his

conviction became final in September 2004 and expired one year later, in September

2005. See § 2244(d)(1)(A). In so ruling, the district court rejected Caldwell’s argument

that, based on McGirt, § 2244(d)(1)(C) or (D) delayed the starting date for the one-year

deadline. It also rejected Caldwell’s argument that the one-year deadline does not apply

to him because his conviction, entered by a court lacking jurisdiction, never became final.

And it noted that Caldwell did not argue for and was not entitled to any kind of tolling or

equitable exception.

Before this court, Caldwell reasserts that McGirt established a new and retroactive

rule of constitutional law under § 2244(d)(1)(C), making his petition timely. But we

3 Appellate Case: 22-6185 Document: 010110835309 Date Filed: 03/30/2023 Page: 4

recently held otherwise, rejecting a § 2244(d)(1)(C) argument because “McGirt

announced no new constitutional right.” Pacheco v. El Habti, 48 F.4th 1179, 1191 (10th

Cir. 2022). There is accordingly no room for debate about whether McGirt triggers a later

starting date for habeas petitions under § 2244(d)(1)(C), and we decline to issue a COA

on this basis.

The remainder of Caldwell’s brief merely reiterates his position that the state court

lacked jurisdiction over him because he is an Indian who committed an MCA crime in

Indian country. But this assertion does not help Caldwell escape the untimeliness of his

habeas petition: “[A] habeas claim predicated on a convicting court’s lack of

subject[-]matter jurisdiction ‘is subject to dismissal for untimeliness.’” Lamarr v. Nunn,

No. 22-6063, 2022 WL 2678602, at *2 (10th Cir. July 12, 2022) (unpublished) (quoting

Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011)).3 And reasonable jurists could

not debate the district court’s procedural ruling that Caldwell’s petition was untimely. See

Slack, 529 U.S. at 484. We therefore deny his COA request and dismiss this appeal.

Entered for the Court

Nancy L. Moritz Circuit Judge

3 We cite Lamarr for its persuasive value. See 10th Cir. R. 32.1(A). 4