48 F.4th 1179
10th Cir.2022Background
- In 2013 Pacheco (a member of the Keetoowah Band of the Cherokee Nation) was tried in Oklahoma state court for first-degree child-abuse murder and convicted; conviction affirmed by the OCCA in 2016.
- Pacheco filed a federal habeas application under 28 U.S.C. § 2254 in October 2016 raising insufficiency and ineffective-assistance claims; she later sought to amend to add a jurisdictional challenge.
- This litigation overlapped with Murphy v. Royal (10th Cir.) and McGirt v. Oklahoma (Supreme Court), which held that large portions of eastern Oklahoma (including tribal reservations) remain Indian country for Major Crimes Act purposes.
- After McGirt, state courts found Pacheco is Indian and the crime occurred in Indian country, but the OCCA denied postconviction relief as McGirt was a new, nonretroactive procedural rule.
- Pacheco moved in 2019 to amend her federal petition to assert state-court lack of jurisdiction; the district court denied leave to amend as untimely and not relation-back, and the Tenth Circuit granted a COA limited to that timeliness/jurisdictional-amendment issue.
- The Tenth Circuit affirmed: it held Pacheco could not invoke the actual-innocence gateway to overcome AEDPA’s time bar for a jurisdictional claim and McGirt did not announce a new constitutional right that restarts AEDPA’s limitations period; it denied additional COAs.
Issues
| Issue | Pacheco's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the actual-innocence gateway excuses AEDPA time bar for a jurisdictional claim | Actual innocence of the charged state crime because prosecution lacked jurisdiction (wrong forum) excuses untimeliness | Actual-innocence applies only to factual innocence of the criminal conduct, not legal/jurisdictional errors | Denied — gateway does not apply here; jurisdictional defect is legal, not factual, for equitable actual-innocence relief |
| Whether McGirt announced a new constitutional right that restarts AEDPA’s limitations clock under §2244(d)(1)(C) | McGirt announced a controlling rule (due process/compelled jurisdiction) that is a newly recognized constitutional right | McGirt was statutory interpretation of treaties/statutes; it did not announce a new constitutional right | Denied — McGirt is statutory interpretation, not a newly recognized constitutional right, so §2244(d)(1)(C) does not reset the clock |
| Whether the proposed amendment related back to the original habeas pleading under Rule 15 / Mayle | The jurisdictional claim should be allowed or deemed timely after McGirt | The proposed claim does not share the same core operative facts and is time-barred; amendment would be futile | Denied — amendment was untimely, did not relate back, and would be futile because AEDPA’s time bar was not excused |
| Whether a COA should issue on Pacheco’s preserved insufficiency and ineffective-assistance claims | COA warranted on multiple trial error and counsel-performance claims | State: district court’s denial was correct under AEDPA deferential standards | Denied — the district court’s rulings were not debatable among reasonable jurists; COA denied on additional claims |
Key Cases Cited
- Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) (held Creek Reservation is Indian country for Major Crimes Act purposes)
- McGirt v. Oklahoma, 140 S. Ct. 2452 (U.S. 2020) (held the Creek Reservation was never disestablished; statutory interpretation of treaties and statutes)
- Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (established actual-innocence gateway standard: more likely than not no reasonable juror would convict)
- McQuiggin v. Perkins, 569 U.S. 383 (U.S. 2013) (confirmed actual innocence can overcome AEDPA time bar)
- Bousley v. United States, 523 U.S. 614 (U.S. 1998) (actual innocence means factual innocence, not mere legal insufficiency)
- Mayle v. Felix, 545 U.S. 644 (U.S. 2005) (relation-back under Rule 15(c): new claims must share a common core of operative facts)
- Rehaif v. United States, 139 S. Ct. 2191 (U.S. 2019) (distinguishes jurisdictional elements from elements describing the evil Congress seeks to prevent)
- Brown v. Davenport, 142 S. Ct. 1510 (U.S. 2022) (recognizes equitable discretion in habeas corpus despite AEDPA’s statutory framework)