Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parris v. Whitten

United States District Court, N.D. Oklahoma

July 8, 2019

WILLIAM GARY PARRIS, Petitioner,
v.
RICK WHITTEN,[1] Respondent.

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE

         Petitioner William Gary Parris commenced this 28 U.S.C. § 2254 habeas corpus action to challenge the constitutional validity of the judgments and sentences entered against him in four District Court of Tulsa County cases. Before the Court is Respondent's motion to dismiss the habeas petition (Dkt. 12). Respondent filed a brief in support of the motion to dismiss (Dkt. 13), and Petitioner filed a response (Dkt. 14). For the reasons that follow, the Court grants Respondent's motion and dismisses the petition, in part, for lack of jurisdiction and, in part, as time-barred.

         I.

         Petitioner contests the validity of the judgments and sentences entered against him the District Court of Tulsa County, Case Nos. CF-1993-5539, CF-1996-4634, CF-2001- 443 and CF-2009-3997. Dkt. 1, at 2. In Case No. CF-1993-5539, Petitioner was convicted, upon a guilty plea, of one count of larceny of an automobile and, on February 17, 1994, the trial court sentenced him to serve five years in prison. Dkt. 1, at 2; Dkt. 13, at 1. Petitioner was discharged from this sentence on May 22, 1995. Dkt. 13-2.

         In Case No. CF-1996-4634, Petitioner was convicted, upon a guilty plea, of one count of larceny of an automobile, one count of possessing drug paraphernalia, and one count of driving under the influence resulting in great bodily injury. Dkt. 1, at 2; Dkt. 13, at 2. On January 24, 1997, the trial court ordered Petitioner to serve prison terms of 15 years, 15 years, and 5 years. Dkt. 13, at 2. Petitioner was released on parole on November 22, 2000, with a parole completion date of September 22, 2006. Dkt. 13-3.

         In Case Case No. CF-2001-443, Petitioner pleaded guilty to one count of larceny of an automobile and one count of eluding a police officer and was sentenced, on February 26, 2001, to prison terms of 15 years and 10 years. Dkt. 1, at 2; Dkt. 13-1. Petitioner was “Discharged to Sentence completed” on November 9, 2007. Dkt. 13-4.

         Finally, in Case Case No. CF-2009-3397, Petitioner pleaded guilty to one count of second-degree murder, four counts of burglary of an automobile, one count of assault with a dangerous weapon, and one count of unlawfully possessing a controlled drug (methamphetamine). Dkt. 1, at 2; Dkt. 13, at 4. On June 21, 2010, the trial court imposed a 30-year prison term and four 8-year prison terms, all to be served consecutively, and two 6-year prison terms, to be served concurrently with the consecutive sentences and with each other. Dkt. 1, at 2. Petitioner remains incarcerated under these sentences. Dkt. 13, at 4.

         On September 21, 2017, Petitioner filed an application for post-conviction relief in state district court. Dkt. 13-1, at 1; Dkt. 13-5, at 45. Petitioner alleged the State violated his due process rights, under the state and federal constitutions, because in each of his Tulsa County District Court cases “[t]he trial court lacked subject matter jurisdiction because Petitioner is an Indian and the crime occurred in Indian County [sic].” Dkt. 13-1, at 2. In support of this claim, Petitioner cited “Murphy v. Royal, 2017 WL 3389877 (10th Cir.).” Id. The state district court denied Petitioner's application on October 13, 2017. Dkt. 13-6, at 5. The court reasoned that “the Murphy decision [was] not yet good law” because the mandate had not issued and, in any event, Petitioner failed to establish that the crime at issue occurred in Indian Country. Dkt. 13-6, at 6-7.[2]

         The Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial of post-conviction relief on June 26, 2018. Dkt. 1, at 3-4; Dkt. 13-7, at 1. Like the state district court, the OCCA reasoned Petitioner's reliance on Murphy was “premature” given that the United States Supreme Court granted certiorari in May 2018, meaning that the Tenth Circuit Court of Appeals' Murphy decision was “not a final decision.” Dkt. 13-7, at 1-2.[3]

         Petitioner, appearing pro se, [4] filed the instant federal habeas petition on July 26, 2018. Dkt. 1, at 1. As he did in state court, Petitioner claims the trial court lacked subject-matter jurisdiction, in all four of his above-referenced state criminal cases, because “Petitioner and the victim[s] are Indians within the meaning of federal law and the crime[s] occurred in Indian County [sic] as defined by 18 USC § 1151.” Id. at 5.[5] In support, Petitioner cites to Article IV of the Treaty of Dancing Rabbit Creek as well as 18 U.S.C. § 1151, but does not mention Murphy. Id. at 5-6.

         II.

         Respondent moves to dismiss the habeas petition for three reasons. First, he contends Petitioner is no longer “in custody” within the meaning of 28 U.S.C. § 2254(a) as to three of his state-court judgments. Dkt. 13, at 1-3. Second, he contends the petition is time-barred under 28 U.S.C. § 2244(d)(1) as to the only state-court judgment for which he remains in custody. Id. at 4-8. Third, he contends Petitioner failed to exhaust available state remedies as required by 28 U.S.C. § 2254(b)(1)(A). Id. at 8-13. For the reasons that follow, the Court agrees with Respondent's first and second contentions and thus finds it unnecessary to address the third.

         A. Custody

         A state prisoner seeking federal habeas relief must show that he is “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a). This in-custody requirement is jurisdictional. Calhoun v. Att'y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014). And the petitioner must satisfy the requirement “at the time the habeas petition is filed.” Id. (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Thus, “[f]ederal courts have no jurisdiction to consider § 2254 petitions unless the petitioner is in custody pursuant to [the] challenged conviction when the petition is filed.” Garey v. Ulibarri, 332 Fed.Appx. 445, 446 (10th Cir. 2009) (unpublished)[6] (citing Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir. 2008)).

         Respondent contends Petitioner is no longer “in custody pursuant to the judgment of a State court” as to the judgments entered against him in Tulsa County Nos. CF-1993-5539, CF-1996-4634 and CF-2001-443 because Petitioner has discharged his sentences in each case. Dkt. 13, at 1-3; see Maleng v. Cook, 490 U.S. 488, 492 (1989) (explaining that when a state prisoner has fully discharged the sentence imposed for his conviction, “the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody' for purposes of a habeas attack upon it”).

         Petitioner concedes he discharged his sentences and that he is no longer in custody as to these three cases. Dkt. 14, at 11. Nonetheless, he argues that “each of [these judgments] contribute to the sentencing on CF-2009-3397” and “the basis on which CF-2009-3397 is invalidated would also apply to each of the other cases.” Id. It's true that “in very limited circumstances, the ‘in custody' requirement may be satisfied where a petitioner challenges a ‘conviction [that] was used to enhance the sentence he is now serving.'” Neiberger v. Rudek, 450 Fed.Appx. 719, 724 (10th Cir. 2011) (unpublished) (alteration in original) (quoting Anderson-Bey v. Zavaras, 641 F.3d 445, 453 (10th Cir. 2011)). However, to satisfy the in-custody requirement in this manner, the petitioner must “challenge[] a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody.” Id. (quoting Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 396 (2001)). Even liberally construing the petition, the Court does not read it as anything other than a direct attack on each of his underlying state-court judgments. Dkt. 1, at 5-6. Specifically, Petitioner claims the trial court in each criminal case lacked subject-matter jurisdiction, rendering his convictions in all four cases invalid. Id. Like the petitioner in Neiberger, Petitioner “has not framed his habeas petition as an attack on his current sentence, on the ground that it was enhanced by his [1994, 1997 and 2001] convictions.” 450 Fed.Appx. at 725. Nor does the Court find it reasonable to construe Petitioner's bare assertion in his response brief- that his prior state-court judgments “contribute to the sentencing” in his 2009 case-as sufficient to reframe his petition into one asserting such an attack. Dkt. 14, at 11.[7]

         Based on the foregoing, the Court finds that Petitioner fails to satisfy the “in-custody” requirement as to the judgments entered against him in the District Court of Tulsa County, Nos. CF-1993-5539, CF-1996-4634 and CF-2001-443. The Court therefore dismisses the petition without prejudice, in part, for lack of jurisdiction as to any habeas claims challenging the constitutional validity of these three state-court judgments. Respondent concedes, and the Court finds, that Petitioner is in custody under the judgment entered against him in Case Case No. CF-2009-3397. Dkt. 13, at 4. Nonetheless, as discussed next, the Court agrees with Respondent that Petitioner's challenge to that judgment is time-barred.

         B. Timeliness

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), state prisoners have one year from the latest of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.