United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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
appearing pro se,  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. 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.
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.
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) (citing Erlandson v.
Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir.
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”).
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
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
the Antiterrorism and Effective Death Penalty Act (AEDPA),
state prisoners have one year from the latest of the