Tulsa Attorney BlogDoes Matloff v. Wallace Mean Cases Dismiss Under McGirt Can Be Refiled?

McGirt Has Impacted The State Of Oklahoma

Video Transcribed: Does Matloff v Wallace mean that the cases that were dismissed under McGirt are going to be refiled? I’m an Indian Country attorney, James Wirth, and that is the topic we’re discussing, the new decision from the Oklahoma Court of Criminal Appeals completely doing a 180 from its decision in Bosse and deciding that McGirt is not going to be applied retroactively to post-conviction relief cases.

How does that affect cases that have already been decided? There’s been a number of cases that have already been dismissed on McGirt that were at post-conviction level, where they already had a final conviction and it was being attacked collaterally rather than on a direct appeal. Of those, specifically McGirt itself.

TMcGirt attorney in Oklahomahe defendant in McGirt, his case was ultimately dismissed, not by the United States Supreme Court but by the Oklahoma Court of Criminal Appeals after the decision from McGirt, from the Supreme Court that sent it back.

Then they had to evaluate whether the fact that the Muskogee Creek Nation was never dis-established means that there’s no jurisdiction, which it does, and means whether the case has to be dismissed.

Ultimately, the court determined that it has to apply retroactively because it’s a subject matter jurisdiction issue and it dismissed, vacated the conviction, dismissed the charges against McGirt.

That was based on a post-conviction proceeding so under the new precedent that would not have happened. So what happens?

Does that mean that the state can re-file criminal charges against McGirt? It does not. That decision has been made, they can’t re-file it because that’s a decision that is with prejudice that it was dismissed. The state of Oklahoma does not have jurisdiction to prosecute him, they cannot re-prosecute him irrespective of the decision in Matloff v Wallace.

However, that does not mean he cannot be re-prosecuted in federal court or tribal court as applicable so long as it’s still within the statute of limitations of those governmental entities.

Doctrines of res judicata, collateral estoppel, they prevent us from re-doing decisions that have already been decided, in this case, those dismissals, which means those cases have already been dismissed successfully under McGirt for post-conviction relief, cannot be undone unless there’s still an active appeal on those filed by the state.

As far as future cases where they have not yet been decided in post-conviction relief, it’s going to be an issue that has to be addressed and it may be taken up by the United States Supreme Court to see whether this decision or the Bosse decision ultimately stands as being the law of the land going forward.

If you’ve got questions specifically about that, want to talk to an attorney, want to do so confidentially, to get that scheduled you can go online to make laweasy.com.

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