Lamarr v. Nunn ( 2022 )

Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 12, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WALTER E. LAMARR,
Petitioner - Appellant,
v. No. 22-6063
(D.C. No. 5:22-CV-00129-D)
SCOTT NUNN, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Walter E. Lamarr, an Oklahoma prisoner represented by counsel, seeks a
certificate of appealability (“COA”) to challenge the district court’s dismissal of his 28
U.S.C. § 2254 petition. The district court dismissed his petition as untimely. Because the
district court’s procedural ruling is not debatable, we deny a COA and dismiss this
matter.
*
This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 2
I. BACKGROUND
In 1995, Mr. Lamarr pleaded guilty in Oklahoma state court to trafficking in
illegal drugs and was sentenced to thirty-five years’ imprisonment.1 In 2016, Mr. Lamarr
filed a pro se application for post-conviction relief in state court, which was denied. In
2018, he filed a second application for post-conviction relief in state court arguing the
state trial court lacked jurisdiction to convict him. Specifically, Mr. Lamarr argued
“because he is a member of the Wichita and Affiliated Tribes, he committed the crimes
for which he was convicted in ‘Indian Country,’ and the crimes for which he was
convicted are covered by the Indian Assimilative Crimes Act, 18 U.S.C. § 1152,” the
state trial court lacked jurisdiction to convict him. App. at 19. The state trial court denied
this second application and the Oklahoma Court of Criminal Appeals affirmed.
In February 2022, Mr. Lamarr, represented by counsel, filed a 28 U.S.C. § 2254petition in the United States District Court for the Western District of Oklahoma, arguing
the convicting court lacked subject matter jurisdiction, based on McGirt v. Oklahoma,
140 S. Ct. 2452 (2020). The assigned magistrate judge recommended his petition be
dismissed as untimely because it was not filed within one year of the Antiterrorism and
Effective Death Penalty Act’s (“AEDPA”) effective date. See Fisher v. Gibson, 262 F.3d
1135, 1142 (10th Cir. 2001) (“Where a conviction became final before AEDPA took
effect, . . . the one year limitation period for a federal habeas petition starts on AEDPA’s
1
Mr. Lamarr does not dispute the district court’s or magistrate judge’s account of
the state court proceedings, and we therefore rely on those descriptions here.
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Appellate Case: 22-6063 Document: 010110709334 Date Filed: 07/12/2022 Page: 3
effective date, April 24, 1996.”). Mr. Lamarr objected to the recommendation, arguing
“his conviction could never become final for the [purposes of] AEDPA” because the
convicting court lacked jurisdiction. App. at 9. The district court overruled Mr. Lamarr’s
objection, adopted the magistrate judge’s recommendation, and dismissed Mr. Lamarr’s
§ 2254 petition as untimely. The district court explained that Mr. Lamarr’s “argument
that a challenge to the state district court’s jurisdiction on habeas review is not subject to
the limitations period . . . lacks merit,” and his petition “is, therefore, untimely and barred
by the statute of limitations.” Id. at 5–6. The district court also denied a COA.
Mr. Lamarr now seeks a COA in this court.
II. DISCUSSION
Mr. Lamarr must “seek a COA to obtain appellate review of the dismissal of his
habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482 (10th Cir. 2000). Because the
district court denied his petition on procedural grounds without reaching the merits,
Mr. Lamarr must show “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,” to obtain
a COA. Id. at 484. “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should be
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allowed to proceed further.” Id. Because the district court was correct to dismiss
Mr. Lamarr’s petition as untimely, “no appeal [is] warranted.” Id.AEDPA establishes a one-year statute of limitations period during which a person
in state custody may file a habeas petition. 28 U.S.C. § 2244(d); see also Rhine v. Boone,
182 F.3d 1153, 1154 (10th Cir. 1999). Mr. Lamarr acknowledges that the one-year
limitations period began on “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1)(A). Because his conviction became final before Congress enacted
AEDPA, the one-year limitations period started on AEDPA’s effective date: April 24,
1996. See Fisher, 262 F.3d at 1143. Over twenty-five years passed between AEDPA’s
effective date and when Mr. Lamarr filed his habeas petition in federal district court.
Mr. Lamarr’s sole argument is that because the state trial court lacked jurisdiction
to convict him under McGirt, his conviction was never “final” and therefore, AEDPA’s
time limitations period does not apply and cannot bar his habeas petition. This argument
is meritless. We need not address whether the state trial court actually lacked jurisdiction
to convict Mr. Lamarr because a habeas claim predicated on a convicting court’s lack of
subject matter jurisdiction “is subject to dismissal for untimeliness.” Morales v. Jones,
417 F. App’x 746, 749 (10th Cir. 2011) (unpublished); see also Murrell v. Crow, 793 F.
App’x 675, 679 (10th Cir. 2019) (unpublished) (dismissing for untimeliness state
prisoner’s habeas claim that the state court lacked jurisdiction to prosecute him); United
States v. Patrick, 264 F. App’x 693, 694–95 (10th Cir. 2008) (unpublished) (affirming the
district court’s dismissal of an untimely habeas petition challenging the convicting
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court’s jurisdiction). This court has clearly explained that challenges to the convicting
court’s jurisdiction are considered due process challenges, subject to AEDPA’s
limitations period. See Yellowbear v. Wyo. Attorney Gen., 525 F.3d 921, 924 (10th Cir.
2008) (explaining “[a]bsence of jurisdiction in the convicting court is. . .a basis for
federal habeas corpus relief cognizable under the due process clause”); Gibson v. Klinger,
232 F.3d 799, 803, 808 (10th Cir. 2000) (affirming dismissal of due process habeas claim
as time barred under AEDPA). AEDPA’s limitations period therefore applies to
Mr. Lamarr’s petition, and the district court was correct to dismiss it as time barred.2
Reasonable jurists therefore “could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.” Slack,
529 U.S. at 484.
III. CONCLUSION
For these reasons, we DENY a COA and DISMISS this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
2
While Mr. Lamarr does not argue AEDPA’s limitations period should be tolled,
it is worth noting that his state court applications for post-conviction relief did not toll the
limitations period because he filed both of them after the one-year limitations period had
expired. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state
petitions for post-conviction relief filed within the one year allowed by AEDPA will toll
the statute of limitations.”). Nor did McGirt establish a new constitutional right that
would trigger a new date for the limitations period. See Hill v. Nunn, No. 22-6042, 2022
WL 2154997 at *1 (10th Cir. June 15, 2022) (unpublished).
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