Smith v. Crow

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 21, 2022
• Docket: 22-7007
• Status: Unpublished

Opinion

Appellate Case: 22-7007 Document: 010110756634 Date Filed: 10/21/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 21, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MICHAEL LEE SMITH,

Petitioner - Appellant,

v. No. 22-7007 (D.C. No. 6:21-CV-00139-RAW-KEW) SCOTT CROW, DOC Director, (E.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

Michael Lee Smith is charged with first-degree murder in state court in Oklahoma.

He is currently in the State’s custody while serving a sentence for a different

Oklahoma-law conviction. Mr. Smith filed in the district court an application seeking

habeas relief under 28 U.S.C. § 2241, arguing that the state court lacks subject matter

jurisdiction to prosecute him on the pending murder charge. Citing Younger v. Harris,

401 U.S. 37 (1971), the district court abstained from considering Mr. Smith’s habeas

application, dismissed it without prejudice, and denied a certificate of appealability

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-7007 Document: 010110756634 Date Filed: 10/21/2022 Page: 2

(COA). Mr. Smith seeks a COA from this court to appeal the district court’s judgment.

We deny a COA and dismiss the matter.

I. Background

Mr. Smith is facing prosecution in Wagoner County District Court in Oklahoma

for a murder that occurred in 1986. He moved to dismiss the murder charge, arguing,

among others, the state court lacks jurisdiction to prosecute him because the crime

occurred in Indian country. After the state trial court denied his motion, Mr. Smith

sought a writ of prohibition on the same ground from the Oklahoma Court of Criminal

Appeals (OCCA). The OCCA denied a writ, noting his claim implicating subject matter

jurisdiction can be reviewed on direct appeal, and concluding Mr. Smith failed to show

the trial court’s exercise of power will result in an injury for which he has no adequate

remedy.

Mr. Smith then filed a § 2241 habeas application in the district court.1 He asserted

the state court lacks subject matter jurisdiction to prosecute him under the reasoning in

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), because the crime occurred in Indian

country, specifically, within the boundaries of the Muscogee (Creek) Nation. McGirt

reversed an Indian’s Oklahoma state-court conviction, holding the offense occurred on

the Creek reservation that Congress had not disestablished, and the crime was therefore

subject to exclusive federal jurisdiction under the Major Crimes Act, 18 U.S.C. § 1153.

1 Mr. Smith is awaiting trial on the murder charge in Wagoner County District Court. Because he is a pre-trial detainee, he properly filed his application for habeas relief under § 2241. See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007). 2 Appellate Case: 22-7007 Document: 010110756634 Date Filed: 10/21/2022 Page: 3

See McGirt, 140 S. Ct. at 2459-60, 2482. In his § 2241 application, Mr. Smith did not

allege that he, or the murder victim, is an Indian. But he argued that under Oklahoma’s

Enabling Act, the State ceded exclusive jurisdiction over crimes committed on Indian

land to the federal government, without regard to the race of the defendant or victim.

Mr. Smith asked the district court to order the state trial court to dismiss the criminal case

against him.

The State moved to dismiss Mr. Smith’s § 2241 application, arguing dismissal was

warranted under the Younger abstention doctrine. The district court concluded it must

abstain from intervening in Mr. Smith’s state-court criminal proceedings. Applying

Younger, the court ruled the state proceedings were ongoing, offered an adequate forum

for his jurisdictional claim, and implicated important state interests. See Winn v. Cook,

945 F.3d 1253, 1258 (10th Cir. 2019) (stating three-part Younger test). It further found

no exception to Younger abstention applied, and in particular, that Mr. Smith failed to

show he would suffer irreparable injury unless the district court intervened. See id.

(discussing applicable exceptions to Younger abstention including “irreparable injury”).

But the court acknowledged that dismissal may be more appropriate under Ex parte

Royall, 117 U.S. 241 (1886), and its progeny. And it ultimately decided “that regardless

of whether Petitioner’s claim is considered under Younger or Ex Parte Royall,

federal-court intervention is not warranted.” Aplt. App. at 13 n.3.

II. Discussion

Mr. Smith must obtain a COA to appeal the district court’s dismissal of his § 2241

application. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). “A certificate of

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appealability may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court

dismissed Mr. Smith’s habeas application on a procedural ground rather than reaching the

merits of his claim, he must show that reasonable jurists would debate (1) whether the

district court’s procedural ruling was correct, and (2) whether his application states a

valid claim for the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473,

484 (2000). “Section 2253 mandates that both showings be made before the court of

appeals may entertain the appeal.” Id. at 485.

We conclude that reasonable jurists would not debate that dismissal of

Mr. Smith’s application was required, but the more specific authority for the dismissal

was Ex parte Royall. See Kirk v. Oklahoma, No. 21-6050, 2021 WL 5111985, at *2

(10th Cir. Nov. 3, 2021) (unpublished). Younger and Ex parte Royall are related

doctrines. Both decisions are based upon “comity, that is, a proper respect for state

functions,” and they stand for “the requirement that special circumstances must exist

before the federal courts exercise their habeas corpus, injunctive, or declaratory judgment

powers to stop state criminal proceedings.” Dolack v. Allenbrand, 548 F.2d 891, 893

(10th Cir. 1977) (internal quotation marks omitted). Younger addressed a federal court’s

equitable power to issue an injunction enjoining state proceedings, see 401 U.S. at 43-45,

while Ex parte Royall, like Mr. Smith’s case, involved a request for habeas relief, see

117 U.S. at 245.

In Ex parte Royall, the Supreme Court held federal courts have habeas corpus

jurisdiction to discharge a state-court pretrial detainee from custody on the basis that his

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detention violates the constitution. See 117 U.S. at 245, 250. But the Court further

concluded a federal court should not exercise its discretion to exert that power except in

very limited circumstances and should instead allow the state court to pass upon

constitutional questions in the first instance. Id. at 251-52. Acknowledging exceptions to

this rule, the Court pointed to “cases of urgency[] involving the authority and operations

of the [federal] government [or] the obligations of this country to or its relations with

foreign nations.” Id. at 251. The Supreme Court has also authorized federal habeas relief

in a pretrial case where, rather than seeking to litigate a federal defense to a criminal

charge, the habeas applicant sought to compel the state to bring him to trial. See Dolack,

548 F.2d at 893-94 (discussing Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484 (1973)).

“[O]nly in the most unusual circumstances is a defendant entitled to have federal

interposition by way of injunction or habeas corpus until after the jury comes in,

judgment has been appealed from and the case concluded in the state courts.” Id. at 894

(internal quotation marks omitted).

Reasonable jurists would not debate the district court’s conclusion that no special

circumstances justify federal-court intervention in Mr. Smith’s state-court criminal case.

His is not a “case[] of urgency” involving the federal government’s authority or

operations or its relations with a foreign government, as described in Ex parte Royall,

117 U.S. at 251. Nor is Mr. Smith seeking to compel the state to bring him to trial. See

Braden, 410 U.S. at 491-92.

Mr. Smith’s COA Application focuses almost entirely on the merits of his

underlying contention that the state court lacks jurisdiction to prosecute him because the

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crime occurred in Indian country. To the limited extent he addresses the district court’s

abstention ruling, his contentions invoke the same ground: the state court’s alleged lack

of jurisdiction. On that basis, Mr. Smith argues habeas relief is warranted because he has

shown an exceptional circumstance and irreparable injury, and that no important state

interest is involved. The law does not support Mr. Smith’s assertion. A contention that

the state court lacks jurisdiction to try a defendant is not a basis for a federal court to

intervene in an ongoing prosecution by granting a writ of habeas corpus. See Ex parte

Royall, 117 U.S. at 253 (indicating that, after a judgment of conviction in state court, a

federal court may grant a writ of habeas corpus to discharge the conviction on the ground

that the state court lacked jurisdiction); Winn, 945 F.3d at 1263 (“With the notable

exceptions of cases involving double jeopardy and certain speedy trial claims, federal

habeas relief, as a general rule, is not available to defendants seeking pretrial review of

constitutional challenges to state criminal proceedings.” (internal quotation marks

omitted)).2

Mr. Smith contends the grant of a COA on a similar jurisdictional question in

another case “demonstrates that the lack of jurisdiction is of exceptional circumstance”

2 Mr. Smith relies on Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007), for the proposition that § 2241 is a proper avenue for challenging his pretrial detention. In Walck we concluded the “case present[ed] an extraordinary circumstance warranting federal intervention.” Id. at 1233. But Walck was a double jeopardy case readily distinguishable from Mr. Smith’s case: “[A] threatened state prosecution in violation of the Double Jeopardy Clause is a circumstance warranting federal intervention” because that clause “protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” Id. (internal quotation marks omitted). Thus, in such a case, the habeas applicant can show irreparable injury absent federal-court intervention. See id. 6 Appellate Case: 22-7007 Document: 010110756634 Date Filed: 10/21/2022 Page: 7

such that the district court’s dismissal of his § 2241 application “is debatable among

reasonable jurists.” COA Appl. at 19. This assertion also lacks merit. In the case he

relies on, Murphy v. Royal, an Indian sought habeas relief under 28 U.S.C. § 2254,

challenging his murder conviction on the ground the state court lacked jurisdiction

because the crime occurred in Indian country. See 875 F.3d 896, 903, 911 (10th Cir.

2017), aff’d sub nom, 140 S. Ct. 2412 (2020). In applying the legal standard in

§ 2253(c)(2) to grant a COA in Murphy, we concluded only that the jurisdictional

question was debatable. We did not determine the issue constituted an exceptional

circumstance in any context, much less decide it was a basis to intervene in a pending

state criminal case. Our grant of a COA in Murphy does not demonstrate that the district

court’s procedural ruling in Mr. Smith’s case is debatable by reasonable jurists.

In sum, federal habeas relief is not available to Mr. Smith because

a prisoner in custody under the authority of a state should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the state to test the validity of his arrest and detention. To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several states . . . . Whitten v. Tomlinson, 160 U.S. 231, 247 (1895).

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III. Conclusion

Because Mr. Smith has not demonstrated that reasonable jurists would debate the

district court’s procedural ruling in dismissing his § 2241 habeas application, we deny a

COA and dismiss the matter.

Entered for the Court

Veronica S. Rossman Circuit Judge