Pacheco v. El Habti

Appellate Case: 20-7002 Document: 010110739879 Date Filed: 09/15/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 15, 2022

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

DELILA PACHECO,

Petitioner - Appellant,

v. No. 20-7002

ABOUTANAA EL HABTI, Warden,

Respondent - Appellee.
_________________________________

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:16-CV-00450-RAW-KEW)
_________________________________

Kathleen Shen, Assistant Federal Public Defender (Shira Kieval, Assistant Federal Public
Defender, and Virginia L. Grady, Federal Public Defender, with her on the briefs),
Denver, Colorado, for Petitioner - Appellant.

Caroline Hunt, Assistant Attorney General (Ashley L. Willis, Assistant Attorney General,
and John M. O’Connor, Attorney General of Oklahoma, with her on the brief), Oklahoma
City, Oklahoma, for Respondent - Appellee.
_________________________________

Before HARTZ, SEYMOUR, and MORITZ, Circuit Judges.
_________________________________

HARTZ, Circuit Judge.
_________________________________

Delila Pacheco was convicted in Oklahoma of first-degree child-abuse murder.

She sought relief in the United States District Court for the Eastern District of

Oklahoma, filing an application under 28 U.S.C. § 2254. While her application was
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pending, we decided Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), holding that a

large portion of the State of Oklahoma is “Indian country” for purposes of the Major

Crimes Act, which provides for exclusive federal jurisdiction over certain

enumerated crimes committed by Indians in “Indian country.” 18 U.S.C. § 1153(a).1

Ms. Pacheco—an Indian found to have committed a serious crime at a location since

determined to be on an Indian reservation—sought to amend her application to assert

a claim that the state courts lacked jurisdiction over the offense.

The district court denied the request to amend on the ground that the new

claim was time-barred. We granted a certificate of appealability (COA) on this issue.

See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under

§ 2254). Ms. Pacheco argues on appeal (1) that the time bar to her jurisdictional

claim should be excused under the actual-innocence exception and, alternatively, (2)

that the statute of limitations reset when the Supreme Court declared the underlying

law in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), rendering timely her request to

amend. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the

1
Subsection 1153(a) states:

Any Indian who commits against the person or property of another
Indian or other person any of the following offenses, namely, murder,
manslaughter, kidnapping, maiming, a felony under chapter 109A,
incest, a felony assault under section 113, an assault against an
individual who has not attained the age of 16 years, felony child abuse
or neglect, arson, burglary, robbery, and a felony under section 661 of
this title within the Indian country, shall be subject to the same law and
penalties as all other persons committing any of the above offenses,
within the exclusive jurisdiction of the United States.

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district court’s order denying leave to amend because Ms. Pacheco’s jurisdictional

argument does not show actual innocence, and McGirt did not announce a new

constitutional right. We deny a COA on any further issues.

I. BACKGROUND

In 2014 Ms. Pacheco was tried in Oklahoma state court for first-degree child-

abuse murder in connection with the death of her two-year-old foster daughter. See

Okla. Stat. tit. 21, § 701.7(C). The Oklahoma Court of Criminal Appeals (OCCA)

summarized the evidence presented at trial as follows:

Appellant was convicted of intentionally using unreasonable and lethal
force against two-year-old A.H. in the early morning hours of December 8,
2013. Appellant and her husband, Longino Pacheco, lived in rural
Cherokee County with their three teenage children. A few months before
the homicide, Appellant had obtained custody of A.H. and her three-year-
old sister, H.H., who were relatives of Appellant. The child, who slept on
the floor beside Appellant’s bed, died from internal bleeding caused by
blunt-force trauma to her liver; she also had many bruises on her face and
body. Appellant told police that on the night in question, the child refused
to go to sleep, and she (Appellant) had to get up several times to attend to
her. By all accounts, the child had some behavioral problems; for example,
she would often gag herself to get attention or to keep from falling asleep.
Appellant’s husband testified that he heard Appellant spank the child in the
middle of the night, and that he heard the child say “owie” around the same
time. Nevertheless, neither Appellant nor any other member of the family
admitted to having any idea how the child was bruised, or what caused her
death.

R., Vol. I at 205. Ms. Pacheco was convicted and sentenced to life imprisonment with

the possibility of parole. In 2016 the OCCA affirmed the conviction and sentence.

A few months later Ms. Pacheco filed an application under 28 U.S.C. § 2254

in federal district court. Her only claims alleged insufficient evidence and ineffective

assistance of counsel. Then we decided Murphy, which held that the Muscogee

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(Creek) Reservation is Indian country for purposes of the Major Crimes Act, 18

U.S.C. § 1153(a). See 875 F.3d at 966. As a result, Oklahoma state courts lacked

jurisdiction to try the applicant, a member of the Creek Nation, for a murder that had

occurred on the Creek Reservation. See id. Although our holding in Murphy was

limited to the Creek Reservation, the Creek Nation shares its relevant history in

Oklahoma with “the other Indian nations that composed the ‘Five Civilized Tribes’—

the Cherokees, Chickasaws, Choctaws, and Seminoles.” McGirt, 140 S. Ct. at 2483

(Roberts, C.J., dissenting).

Ms. Pacheco first sought postconviction relief under Murphy in state court.2

Alleging that she was a member of the Cherokee Nation who allegedly committed an

offense enumerated in the Major Crimes Act on the Cherokee Reservation, she

argued that “the State of Oklahoma was without jurisdiction to charge, try, convict,

and sentence her for the major crime of murder in the first degree - child abuse.”

Aplt. Suppl. Br., Attach. A-2. The state courts denied relief, ruling that Ms.

Pacheco’s application was premature because the Supreme Court had granted a

petition for a writ of certiorari in Murphy.

Ms. Pacheco shifted her attention back to federal court. In 2019 she moved for

2
At the parties’ request we exercise our discretion to take judicial notice
of the documents in Ms. Pacheco’s state-court postconviction proceedings,
which postdated the initiation of this federal habeas proceeding. See United
States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“[W]e may
exercise our discretion to take judicial notice of publicly[ ]filed records in our
court and certain other courts concerning matters that bear directly upon the
disposition of the case at hand.”).

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leave to file a supplemental brief on the same jurisdictional challenge. The district

court construed the motion as a motion for leave to amend under Federal Rule of

Civil Procedure 15 and denied the motion because it was untimely and the proposed

amendment did not relate back to the original pleading. The court denied relief on the

other claims in the application, and it denied a COA on January 16, 2020. Ms.

Pacheco filed a timely notice of appeal to this court and sought a COA on a number

of issues.

On July 9, 2020, the Supreme Court affirmed Murphy and decided McGirt,

which held that the Creek Reservation had never been disestablished and that the land

it encompassed remained Indian country for purposes of the Major Crimes Act. See

Sharp v. Murphy, 140 S. Ct. 2412 (2020) (per curiam); McGirt, 140 S. Ct. at 2482

(“The federal government promised the Creek a reservation in perpetuity. Over time,

Congress has diminished that reservation. It has sometimes restricted and other times

expanded the Tribe’s authority. But Congress has never withdrawn the promised

reservation.”). Armed with this new Supreme Court authority, Ms. Pacheco once

more pressed her jurisdictional challenge in state court in a second application for

postconviction relief. The trial court found (1) that Ms. Pacheco had one-half Indian

blood and was a recognized member of the Keetoowah Band of the Cherokee Nation,

making her an Indian for purposes of federal law,3 and (2) that the crime of

3
See United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012) (“To find
that a person is an Indian the court must first make factual findings that the person
has ‘some Indian blood’ and, second, that the person is ‘recognized as an Indian by a
tribe or by the federal government.’” (citation omitted)).

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conviction occurred on the Cherokee Reservation, which is Indian country.4 But the

OCCA ultimately denied relief, citing its recent holding that McGirt announced a

new procedural rule that was not retroactively applicable and noting that Ms.

Pacheco’s conviction became final before McGirt was decided. See State ex rel.

Matloff v. Wallace, 497 P.3d 686, 688 (Okla. Crim. App. 2021), cert. denied sub

nom. Parish v. Oklahoma, 142 S. Ct. 757 (2022).

Meanwhile, on December 7, 2020, this court granted a COA on the following

issue:

whether the district court erred in denying Pacheco’s request to amend her
habeas application under Federal Rule of Civil Procedure 15 to include a
claim that the state court lacked jurisdiction to charge, try, and convict her
because she is an Indian, the victim was an Indian, and the crime occurred
in Indian country.

Order Granting COA at 1. We appointed counsel and ordered supplemental briefing.

II. DISCUSSION

Because Ms. Pacheco is an Indian found to have committed a major offense in

Indian country, no party disputes that if she were tried today for the murder of A.H.,

she would be tried in federal court under the Major Crimes Act.5 The question is

4
See Hogner v. State, 500 P.3d 629, 635 (Okla. Crim. App. 2021) (under
reasoning of McGirt, Cherokee Reservation has never been disestablished and
remains Indian country).
5
The State does not contest that the conduct for which Ms. Pacheco was
prosecuted triggers the Major Crimes Act, so we need not decide which enumerated
offense Ms. Pacheco would have been prosecuted under in federal court. See 18
U.S.C. § 1153(a) (listing “murder,” “manslaughter,” and “felony child abuse or
neglect” as major crimes). And we need not address what law would govern a
hypothetical federal prosecution. See id. § 1153(b) (“Any offense referred to in
subsection (a) of this section that is not defined and punished by Federal law in force

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whether any “legal doctrines . . . designed to protect those who have reasonably

labored under a mistaken understanding of the law,” McGirt, 140 S. Ct. at 2481, now

preclude relief.

A. Timeliness of Jurisdictional Claim

The OCCA affirmed Ms. Pacheco’s conviction on direct review on April 15,

2016. She filed her § 2254 application in federal court on October 17, 2016. She then

moved to file a supplemental brief on November 6, 2019, and she submitted a

proposed supplemental brief on November 26 that presented her jurisdictional

challenge. Construing the November 2019 filings as a motion for leave to amend

under Federal Rule of Civil Procedure 15, the district court determined that the

proposed amendment set forth an untimely claim and that the amendment did not

relate back to her original pleading. The court therefore denied leave to amend.

We review for abuse of discretion a district court’s decision to deny leave to

amend a § 2254 application. See Stafford v. Saffle, 34 F.3d 1557, 1560 (10th Cir.

1994). Because a § 2254 application “may be amended or supplemented as provided

in the rules of procedure applicable to civil actions,” 28 U.S.C. § 2242, we look to

Rule 15 for applicable law. Under Rule 15(a)(1) a pleading may be amended “once as

a matter of course” within 21 days after (A) serving the pleading or (B) service of a

responsive pleading or preresponse motion. When, as here, Paragraph 15(a)(1) does

within the exclusive jurisdiction of the United States shall be defined and punished in
accordance with the laws of the State in which such offense was committed as are in
force at the time of such offense.”).

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not apply, a party may amend only with the opposing party’s written consent or the

court’s leave. See Fed. R. Civ. P. 15(a)(2). The “court should freely give leave when

justice so requires.” Id. But it may deny leave to amend for the purpose of asserting a

new claim if “it is apparent that such a claim would be futile.” Stafford, 34 F.3d at

1560. For the reasons that follow, we hold that an amendment would be futile.

An amendment would be futile if the new claim sought to be asserted is time-

barred. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that “[a] 1-year period of limitation shall apply to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of a State court.”

28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of, as relevant

here, (1) “the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review” or (2) “the date on

which the constitutional right asserted was initially recognized by the Supreme Court,

if the right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review.” Id. § 2244(d)(1)(A), (C). A proposed claim

asserted outside the limitations period is generally time-barred. But an amendment

“relates back to the date of the original pleading” when “the amendment asserts a

claim or defense that arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). A

court therefore should not grant a habeas applicant leave to amend to assert new

claims outside AEDPA’s limitations period unless there exists “a common core of

operative facts uniting the original and newly asserted claims.” Mayle v. Felix, 545

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U.S. 644, 659 (2005) (internal quotation marks omitted).

On appeal Ms. Pacheco does not argue that her jurisdictional claim shares a

common core of facts with the claims asserted in her original pleading. But she

nevertheless offers two reasons why the district court erred in denying leave to

amend on untimeliness grounds, the proposed amendment’s failure to relate back

notwithstanding. First, she argues that the actual-innocence exception entirely

excuses her jurisdictional claim from AEDPA’s statute of limitations. Second, she

contends that her request to amend was timely because AEDPA’s statute of

limitations reset when the Supreme Court decided McGirt, which she reads as

announcing a new constitutional right. We reject both arguments and conclude that

the district court did not err in denying the motion for leave to amend.

1. Actual innocence

A proper showing of actual innocence by a habeas petitioner enables the

petitioner to pursue a claim that would otherwise be barred on grounds other than the

merits. “[T]he petitioner’s claim of actual innocence does not serve as the basis for

granting habeas relief. Instead, the claim of actual innocence is joined with a

procedurally defaulted claim to serve as a gateway through which a habeas petitioner

must pass to have his otherwise barred constitutional claim considered on the

merits.” Taylor v. Powell, 7 F.4th 920, 926 (10th Cir. 2021) (footnote and internal

quotation marks omitted); see McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)

(“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may

pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of

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limitations.”). Also known as the “miscarriage of justice” exception, the actual-

innocence exception applies “when a petitioner can demonstrate that he is actually

innocent of the crime of conviction.” Taylor, 7 F.4th at 926. To qualify for the

exception, “the petitioner must show that it is more likely than not that no reasonable

juror would have convicted him in the light of the new evidence.” Schlup v. Delo,

513 U.S. 298, 327 (1995). “It is important to note in this regard that ‘actual

innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998).

Ms. Pacheco invokes the actual-innocence exception to excuse the untimely

assertion of her jurisdictional claim.6 But she does not argue innocence based on new

evidence that she did not commit child-abuse murder. Rather, she argues that she did

not commit the charged crime because she was accused of committing a crime under

Oklahoma law and one element of that crime is that the crime (if, as here, committed

6
The State argues that Ms. Pacheco’s actual-innocence arguments are waived
because she did not mention actual innocence either in district court or in her pro se
opening brief in this court. But the district court raised the statute of limitations sua
sponte as the basis for denying leave to amend; the court entered judgment on the
same day, without giving Ms. Pacheco notice or an opportunity to respond. We agree
with Ms. Pacheco that in district court she had no opportunity to argue actual
innocence as a ground for excusing untimeliness. See Fed. R. Civ. P. 46 (“Failing to
object does not prejudice a party who had no opportunity to do so when the ruling or
order was made.”). And we are aware of no rule that arguments made in a counseled
supplemental brief but not in a prior pro se brief are waived. (If we were to apply
such a rule here, there would have been little point in appointing appellate counsel or
ordering supplemental briefing in the first place.) Finally, we note that at oral
argument counsel for the State acknowledged, “As a practical matter this is a very
important issue that we would like resolved.” Oral Arg. at 19:45–50. In these
circumstances we deem it appropriate to address Ms. Pacheco’s actual-innocence
claim.

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by an Indian) did not occur in Indian country.

Ms. Pacheco’s argument is simple and straightforward, and it may be literally

accurate.7 But she cites no case law supporting the proposition that the factual-

innocence gateway is available when one has been convicted by the wrong

jurisdiction. And, in our view, the rationale behind the gateway does not support its

application to conviction by the wrong jurisdiction, at least in the context of this

case.

It is essential to recognize that the factual-innocence gateway is an exception

7
There is some question, however, whether an element of the crime alleged
against Ms. Pacheco was that it did not occur in Indian country. The Oklahoma
statute codifying child-abuse murder lists no element related to Indian status or
Indian country. See Okla. Stat. tit. 21, § 701.7(C). And the State’s highest criminal
court has ruled that Oklahoma defendants challenging the state courts’ jurisdiction on
Major Crimes Act grounds bear the initial burden of production. See Hogner v. State,
500 P.3d 629, 631 (Okla. Crim. App. 2021) (“Upon [the defendant’s] presentation of
prima facie evidence as to his legal status as an Indian and as to the location of the
crime as Indian Country, the burden shifts to the State to prove it has subject matter
jurisdiction.”). That approach appears to comport with recent Supreme Court
authority framing Indian-country jurisdictional issues as preemption defenses. See
Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2494 (2022) (“[T]he Court’s
precedents establish that Indian country is part of a State’s territory and that, unless
preempted, States have jurisdiction over crimes committed in Indian country.”); cf.
Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1203
n.4 (10th Cir. 2012) (“Ordinary preemption may be invoked in both state and federal
court as an affirmative defense to the allegations in a plaintiff’s complaint. Such a
defense asserts that the state claims have been substantively displaced by federal
law.” (internal quotation marks and brackets omitted)). But see Castro-Huerta, 142 S.
Ct. at 2512 (Gorsuch, J., dissenting) (“Because Tribes are sovereigns, this Court has
consistently recognized that the usual standards of preemption are unhelpful. In
typical preemption cases, courts start with the assumption that Congress has not
displaced state authority. But when a State tries to regulate tribal affairs, the same
backdrop does not apply because Tribes have a claim to sovereignty that long
predates that of our own Government.” (brackets, citations, and internal quotation
marks omitted)).

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to statutory language that provides no such exception. The gateway is a creation of

equity. The historical writ of habeas corpus was a common-law writ, but “its use was

equitable in everything but name.” Paul D. Halliday, Habeas Corpus: From England

to Empire 87 (2010). Although a statutory framework in large part governs federal

habeas proceedings today, courts retain traditional equitable authority—both to

broaden and to narrow avenues of relief. See, e.g., Brown v. Davenport, 142 S. Ct.

1510, 1524 (2022) (“While AEDPA announced certain new conditions to relief, it did

not guarantee relief upon their satisfaction. Instead, Congress left intact the equitable

discretion traditionally invested in federal courts by preexisting habeas statutes.”).

The actual-innocence exception to the various statutory bars to habeas relief derives

from this equitable discretion. See McCleskey v. Zant, 499 U.S. 467, 502 (1991)

(after determining that claim was procedurally defaulted, Court addresses “whether

[it] should nonetheless exercise its equitable discretion to correct a miscarriage of

justice”); Herrera v. Collins, 506 U.S. 390, 404 (1993) (“This rule, or fundamental

miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas

courts to see that federal constitutional errors do not result in the incarceration of

innocent persons.”); McQuiggin, 569 U.S. at 397 (“Equitable principles have

traditionally governed the substantive law of habeas corpus. . . . The text of

§ 2244(d)(1) contains no clear command countering the courts’ equitable authority to

invoke the miscarriage of justice exception to overcome expiration of the statute of

limitations governing a first federal habeas petition.” (brackets and internal quotation

marks omitted)).

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One might ask why the Supreme Court limits the innocence gateway to actual

innocence. Why is it not enough that the defendant could not now be convicted on the

original charge? The reasons that conviction could not now be obtained may reflect

deep-rooted and compelling principles, such as the bar against double jeopardy or the

inadmissibility of unlawfully seized evidence. Yet this court has repeatedly rejected

attempts to claim actual innocence based on what we viewed as legal issues: double

jeopardy, see Steele v. Young, 11 F.3d 1518, 1522 & n.8 (10th Cir. 1993); Selsor v.

Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994); instructional error, see Ellis v. Hargett,

302 F.3d 1182, 1186 n.1 (10th Cir. 2002) (instruction on self-defense); Brecheen v.

Reynolds, 41 F.3d 1343, 1356–57 (10th Cir. 1994) (failure to give “presumption of

life” instruction in capital case); Hernandez-Escarsega v. Morris, 43 F. App’x 181,

184–85 (10th Cir. 2002) (instruction on continuing criminal enterprise);

involuntariness of the plea, see Laurson v. Leyba, 507 F.3d 1230, 1232–33 (10th Cir.

2007); illegal search and seizure, see Warren v. United States, 707 F. App’x 509, 512

(10th Cir. 2017); and the absence of a proper charging document, see Shayesteh v.

City of S. Salt Lake, 217 F.3d 1281, 1284 (10th Cir. 2000).8

8
Two opinions of this court—Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000)
and Ellis, 302 F.3d 1182—have been read by others as holding that affirmative
defenses go only to legal innocence and cannot establish actual innocence. A close
review of the cases, however, shows that no precedent of this court has gone so far,
although we have rejected claims of actual innocence based on partial affirmative
defenses that only reduce the degree of guilt. In Beavers we wrote: “Mr. Beavers
does not claim that he is innocent of killing [the victim]. Rather, he claims that he is
not guilty of first-degree murder because he was intoxicated and acted in self-
defense. However, these arguments go to legal innocence as opposed to factual
innocence.” 216 F.3d at 923. This passage should not be read out of context. Mr.

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Beavers did not argue in our court that he was entitled to acquittal on the ground of
intoxication or self-defense. Rather, he argued only that intoxication or self-defense
would reduce his offense to manslaughter. In particular, with regard to self-defense
he cited authority that the crime would only be manslaughter if his belief that he
needed to defend himself was unreasonable or if he was not free from blame (say, he
started the altercation). In Ellis we wrote: “Ellis briefly asserts that his procedural
default should be excused [because of actual innocence]. This argument cannot
prevail. Ellis does not claim that new evidence shows he is actually innocent of
shooting [the victims]. Rather, his claim boils down to asserting that he is legally
innocent because his conduct is justified or mitigated by the doctrines of self-defense
or heat of passion, on which he maintains the jury was not accurately instructed.” 302
F.3d 1186 n.1. We do not read this as saying that Ellis could not have overcome the
procedural bar if he had presented new evidence clearly establishing self-defense that
negated guilt. He never pointed to new evidence of self-defense or even argued that
the evidence of self-defense at trial was compelling. He argued only that the jury
instructions on self-defense were unclear regarding the prosecution’s burden of
persuasion. See also Black v. Workman, 682 F.3d 880, 915 (10th Cir. 2012) (rejecting
actual-innocence claim because prisoner “could have been convicted of the lesser
offense of manslaughter”).
We recognize that the Supreme Court has held that a petitioner in a capital
case who demonstrates innocence of the death penalty, though not innocence of
homicide, may obtain review of an otherwise barred claim challenging the imposition
of the death penalty. See Sawyer v. Whitley, 505 U.S. 333, 345 (1992) (“Sensible
meaning is given to the term ‘innocent of the death penalty’ by allowing a showing in
addition to innocence of the capital crime itself a showing that there was no
aggravating circumstance or that some other condition of eligibility had not been
met.”). But the Supreme Court has treated the death penalty as unique in various
respects. See, e.g., California v. Ramos, 463 U.S. 992, 998–99 (1983) (“The Court, as
well as the separate opinions of a majority of the individual Justices, has recognized
that the qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital sentencing determination.”);
Beck v. Alabama, 447 U.S. 625, 637 (1980) (requiring lesser-included-offense
instruction: “As we have often stated, there is a significant constitutional difference
between the death penalty and lesser punishments[.]”); Harmelin v. Michigan, 501
U.S. 957, 994 (1991) (opinion of Scalia, J., joined by C.J. Rehnquist))
(“Proportionality review is one of several respects in which we have held that ‘death
is different,’ and have imposed protections that the Constitution nowhere else
provides.).
When we limit the issue to noncapital cases, one sibling circuit has held that
an actual-innocence claim cannot rest on a defense that merely reduces the degree of
a defendant’s guilt. See Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1015
(11th Cir. 2012) (“Schlup’s actual innocence gateway does not extend to petitioners,

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The answer is that only factual innocence turns on the moral culpability of the

defendant. And it is this moral dimension that engages our equitable sensibilities. The

Supreme Court captured this rationale when it stated that “[A] prototypical example

of ‘actual innocence’ in a colloquial sense is the case where the State has convicted

the wrong person of the crime.” Sawyer v. Whitley, 505 U.S. 333, 340 (1992). We

agree with Chief Judge King that “the core idea” of actual innocence “is that the

petitioner may have been imprisoned for conduct that was not prohibited by law.”

Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001).

In this light, we do not think that equitable principles offer Ms. Pacheco a

gateway to escape the statutory bar on her untimely claim. We recognize that as a

general rule a claim of actual innocence can be based on the failure to establish an

element of the offense on which the defendant was prosecuted. See Bousley v. United

like Rozzelle, who did the killing and whose alleged actual innocence of a non-
capital homicide conviction is premised on being guilty of only a lesser degree of
homicide.” (internal quotation marks omitted)). Two others, however, although
ultimately ruling against the defendant, have entertained such claims. See Murden v.
Artuz, 497 F.3d 178, 194–95 (2d Cir. 2007) (considering defendant’s claim that
he acted out of extreme emotional disturbance, an affirmative defense that
would have reduced his second-degree murder conviction to first-degree
manslaughter); Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998)
(considering defendant’s voluntary-intoxication claim, which would have
reduced his conviction from premeditated murder to, at most, second-degree
murder).
Notwithstanding these divergent views, the circuits appear to agree that when
an affirmative defense negates all guilt, it can support a claim of actual innocence.
See, e.g., Fairman v. Anderson, 188 F.3d 635, 644–45 (5th Cir. 1999) (self-defense);
Finley v. Johnson, 243 F.3d 215, 220–21 (5th Cir. 2001) (necessity); Britz v. Cowan,
192 F.3d 1101, 1103 (7th Cir. 1999) (insanity); Jaramillo v. Stewart, 340 F.3d 877,
883 (9th Cir. 2003) (self-defense).

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States, 523 U.S. 614, 623–24 (1998); United States v. Bowen, 956 F.3d 1091, 1108

(10th Cir. 2019). But jurisdictional elements are different. They are unrelated to

moral culpability. As recently stated by the Supreme Court, “Jurisdictional elements

do not describe the evil Congress seeks to prevent, but instead simply ensure that the

Federal Government has the constitutional authority to regulate the defendant’s

conduct.” Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (internal quotation

marks omitted). Ms. Pacheco’s actual-innocence claim is not based on evidence

regarding what she did, but on where she did it. We take comfort in the limited

authority on the issue. The Eleventh Circuit said in a per curiam unpublished opinion

that “Jones’s argument that the state trial court lacked jurisdiction presents, at most, a

claim of legal innocence, not factual innocence, and does not excuse his failure to file

his federal petition sooner.” Jones v. Warden, 683 Fed. App’x 799, 801 (11th Cir.

2017). (Jones had argued that the trial court lacked jurisdiction because the case had

not been properly transferred to the judge who presided. See Jones v. State, 709

S.E.2d 773, 776 (Ga. 2011).) And we think it relevant that the Supreme Court,

although proceeding under an earlier habeas statute and quite different analysis,

declined to grant habeas relief to a serviceman convicted in a court-martial

proceeding of a crime that was not “service-connected,” even though the Court had

held after his proceeding that such a charge had to be tried by a jury in a civilian

court. See Gosa v. Mayden, 413 U.S. 665, 672–86 (1973) (plurality opinion), relied

on by United States v. Cuch, 79 F.3d 987, 990–94 (10th Cir. 1996) (denying habeas

relief to defendants prosecuted in federal court where jurisdiction was predicated on

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incorrect determination that location of crime was within the boundaries of Indian

reservation). We also think it noteworthy that 28 U.S.C. § 2255 specifically

recognizes claims “that the court was without jurisdiction,” id. § 2255(a), but does

not except such claims from the one-year limitations period, see id. § 2255(f). When

Congress enacted the limitations period in AEDPA, it discerned no reason to provide

a blanket exception for jurisdictional claims.

Nor are there any particular equities favoring Ms. Pacheco in this case. There

is no suggestion of bad faith on the part of the State in exercising jurisdiction to

prosecute her. Thousands who had been prosecuted on the mistaken premise that the

Cherokee Reservation had been disestablished did not raise a jurisdictional claim,

and the dissent in McGirt shows that it was not wholly unreasonable to believe that

the reservation had been disestablished. To be sure, the prosecution of Ms. Pacheco

can be described as an offense to the sovereignty of the Cherokee Nation—a

sovereignty that is entitled to the greatest respect from this court. But the most

effective cure to this offense to the Nation is the decision in McGirt itself, which will

govern all future relations between the Nation and the State of Oklahoma. We

question whether permitting Ms. Pacheco’s untimely claim to go forward can be

justified as a remedy for prior intrusions on tribal sovereignty. We leave for another

day whether a bad-faith arrogation of sovereignty to prosecute a particular person

could be ground for excusing a procedural default in a habeas case.

2. Newly recognized constitutional right

Ms. Pacheco next argues that McGirt announced a new rule of constitutional

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law and that we should make that rule retroactively applicable. She points out that

AEDPA’s statute of limitations resets on “the date on which the constitutional right

asserted was initially recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on

collateral review.” 28 U.S.C. § 2244(d)(1)(C). If the statute of limitations reset on

July 9, 2020, when McGirt was decided in the middle of this appeal, then her request

to amend would be rendered timely.

But there is at least one fatal flaw to this argument: McGirt announced no new

constitutional right. It self-professedly resolved a question of “statutory

interpretation,” 140 S. Ct. at 2474, surveying many “treaties and statutes,” id. at

2476, to determine that “[t]he federal government promised the Creek a reservation

in perpetuity” and “has never withdrawn the promised reservation,” id. at 2482. The

opinion addressed the United States Constitution only to explain Congress’s

exclusive authority to disestablish Indian reservations. See id. at 2462–63. (The

Constitution is also mentioned in passing within a quotation from the Oklahoma

Enabling Act. See id. at 2477.) And although Ms. Pacheco tries to characterize

McGirt as a decision about due process, the phrase “due process” never appears in

the opinion. Moreover, the opinion observed that “Congress remains free to

supplement its statutory directions about the lands in question at any time.” Id. at

2481–82. That observation alone contravenes any notion that McGirt announced a

new constitutional right—Congress cannot eliminate a constitutional right through

ordinary legislation. Ms. Pacheco contends that the McGirt ruling “is constitutional,

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as ‘a criminal prosecution in the courts of a state’ must be in ‘a court of competent

jurisdiction’ in order to accord with ‘“due process” in the constitutional sense.’”

Aplt. Suppl. Br. at 23 (quoting Frank v. Mangum, 237 U.S. 309, 326 (1915)). But it

was not McGirt, but the notorious opinion in Frank, that established the

constitutional principle invoked by Ms. Pacheco.

The district court did not err in denying Ms. Pacheco leave to amend.

B. Requests for COA on Other Claims

Ms. Pacheco further requests a COA on eight claims unrelated to the

jurisdictional issue: (1) the State presented insufficient evidence of guilt; (2) her

counsel was ineffective for failing to procure a qualified interpreter; (3) her counsel

was ineffective for failing to object to alleged prosecutorial misconduct; (4) her

counsel was ineffective for failing to use certain known information to argue

reasonable doubt based on the possibility that her husband killed the child; (5) the

use of an unqualified interpreter during her husband’s testimony violated the

Confrontation Clause and Due Process Clause; (6) prosecutorial misconduct denied

her a fair trial; (7) the improper admission of evidence denied her a fair trial; and (8)

cumulative error. But in district court Ms. Pacheco raised only the first three claims.

The other claims are therefore not preserved for our review. See, e.g., Owens v.

Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) (“Because the argument was not

raised in his habeas petition, it is waived on appeal.”).

A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the

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applicant to show that the district court’s resolution of the claim was “debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of a

habeas petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.

2004). In particular, AEDPA provides that when a claim has been adjudicated on the

merits in a state court, a federal court can grant habeas relief only if the applicant

establishes that the state-court decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States,” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

We deny a COA on the three preserved claims. Ms. Pacheco’s first claim

alleges that the evidence at trial did not establish beyond a reasonable doubt that she,

as opposed to someone else in her family, killed A.H. The district court examined the

evidence presented at trial and held that the OCCA’s rejection of the claim was not

contrary to or an unreasonable application of Supreme Court case law; nor was its

decision based on an unreasonable determination of the facts in light of the evidence.

We cannot say that the district court’s decision was debatable or wrong.

Ms. Pacheco’s second and third claims allege that trial counsel rendered

ineffective assistance by failing to procure a qualified interpreter and failing to object

to allegedly improper remarks made by the prosecutor. To prevail on claims of

ineffective assistance of counsel, a defendant must show both that her counsel’s

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performance was deficient—“that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment”—and that “the deficient performance prejudiced [her] defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). The OCCA ruled that although

the interpreter was unqualified, Ms. Pacheco was not prejudiced because no specific

mistranslations by the interpreter were identified. As to the alleged prosecutorial

misconduct, the OCCA determined that the challenged remarks were reasonable

interpretations of the evidence, that any objection to the remarks would have been

futile, and that counsel was not ineffective for failing to make meritless objections.

The district court reviewed the record and determined that the OCCA’s rulings did

not contradict or unreasonably apply Supreme Court case law; nor did its rulings rest

upon an unreasonable determination of the facts. Reasonable jurists could not debate

the district court’s decision.

III. CONCLUSION

We AFFIRM the district court’s order denying leave to amend. We DENY a

COA on any additional claims.

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