Tulsa Attorney BlogState v. Castro-Huerta: McGirt Issue Back Before the US Supreme Court

The Defendant Was Sentenced to 35 Years in State Court

Video Transcribed: McGirt issue back before the United States Supreme Court. I’m Oklahoma attorney James Wirth and we’re talking about an update in the case of State v. Victor Castro-Huerta. That is a case where the defendant was sentenced to 35 years in state court for a relatively serious crime.

That conviction ultimately was overturned on appeal, arguing that under McGirt because the victims of the crime, members of a federally recognized tribe, that the state court lacked jurisdiction. Oklahoma Court of Criminal Appeals agreed with the defense, in that case, overturned the conviction and the sentence, and ordered the case dismissed.

However, the state of Oklahoma filed an appeal to the United States Supreme Court and that case, along with about 40 other cases, is now set before the United States Supreme Court on January 7th for a conference docket. That is an opportunity for the justices to review those cases to make a determination on the petition for cert.

attorney in OklahomaThat petition for cert is where the state or whoever’s appealing is requesting that the Supreme Court take the case. They get thousands of petitions for writ of certiorari every year and only maybe 80 cases or so are actually granted cert to be decided by the United States Supreme Court.

That is what is set for January 7, 2022, for the Victor Castro-Huerta case and other appeals filed by the state of Oklahoma for the US Supreme Court to the conference and make a determination perhaps that day on whether they’re actually going to hear those appeals. In order for the petition for cert to be granted, they need four out of the five justices to decide to accept cert.

If they’re going to overrule the Oklahoma Court of Criminal Appeals and thereby perhaps actually overrule itself in McGirt as the state is requesting, that would actually require a majority of five out of the nine justices.

However, since this issue was before the court last year, there has been a change. Ruth Bader Ginsburg is no longer on the court, being replaced by Amy Coney Barrett.

So there is some possibility based on the state’s argument that McGirt v Oklahoma has caused all kinds of negative repercussions in Oklahoma that the court could rehear that, although I think it is unlikely that that will happen, that it would be overturned when the full United States Supreme Court decided this issue last year, in the McGirt case. I find it very difficult. It would be highly unusual for them to do something completely different a year later.

So those are the state appeals. There are other appeals filed by many defendants related to the Oklahoma Court of Criminal Appeals deciding Bosse and then completely going in a different direction in Wallace. Those have not yet been set for conference or determination if a petition for writ is going to be granted.

So I’ll do a different video when that is updated, but as far as these, the state appeals where they’re trying to overturn McGirt and/or trying to have it relegated only to Indian defendants, not to other defendants that have Indian victims, that is set for a conference to determine whether it’s going to be a petition for writ certiorari granted on January 7, 2022.

If you have any questions about that or other cases pending, you’re going to want to talk to an attorney privately, confidentially about that. To get that scheduled with somebody in my office, you can go online to makelaweasy.com.

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