Magnan v. Trammell

Decision Date14 June 2013
Docket NumberNo. 11–7072.,11–7072.
Citation719 F.3d 1159
PartiesDavid Brian MAGNAN, Petitioner–Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary ; E. Scott Pruitt, Attorney General, State of Oklahoma, Respondents–Appellees. Seminole Nation of Oklahoma, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Chad A. Readler of Jones Day, Columbus, OH, (Steven A. Broussard and Michael J. Lissau of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK; and Gary Peterson, Oklahoma City, OK, with him on the briefs), for PetitionerAppellant.

Seth S. Branham, Assistant Attorney General, (E. Scott Pruitt, Attorney General of Oklahoma, and Jennifer L. Crabb, Assistant Attorney General, on the brief), Oklahoma City, OK, for RespondentAppellee.

Eugene K. Bertman and Jennifer Henshaw McBee of McCormick & Bryan, PLLC, Edmond, OK, filed an amicus curiae brief on behalf of the Seminole Nation of Oklahoma, Amicus Curiae.

Before BRISCOE, Chief Judge, KELLY and HARTZ, Circuit Judges.

BRISCOE, Chief Judge.

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest was unobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue. In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes at issue occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan's petition but granted him a certificate of appealability. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we need only address the status of the surface estate to agree with Magnan that the location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met and that, as a result, the state trial court lacked jurisdiction over the crimes. Consequently, we reverse the judgment of the district court and remand with instructions to grant Magnan's petition for writ of habeas corpus.

I

In the early morning hours of March 3, 2004, James Howard and Karen Wolf were shot to death at a house in rural Seminole County, Oklahoma. Two other people, Lucilla McGirt and Eric Coley, were shot and wounded at the house. McGirt died approximately two weeks later from complications of her gunshot wounds. Coley survived his injuries. All of the victims, except for Howard, were enrolled members of the Seminole Nation of Oklahoma.

The state trial proceedings

On March 12, 2004, Magnan, an enrolled member of the Fort Peck Assiniboine and Sioux Tribes, was charged by felony information in the District Court of Seminole County with conspiracy to commit the crime of murder in the first degree (Count I), two counts of shooting with intent to kill (Counts II and V), and two counts of murder in the first degree (Counts III and IV). On March 26, 2004, following the death of McGirt, an amended felony information was filed that charged Magnan with conspiracy to commit the crime of murder in the first degree (Count I), one count of shooting with intent to kill (Count II), and three counts of murder in the first degree (Counts III, IV, and V).

On July 22, 2004, the State filed a bill of particulars alleging the existence of five aggravating circumstances: (1) Magnan was previously convicted of a felony offense involving the use or threat of violence to the person (arson); (2) Magnan knowingly created a great risk of death to more than one person; (3) the murders were especially heinous, atrocious, or cruel; (4) the murders were committed by Magnan while serving a sentence of imprisonment on a conviction of a felony; and (5) the existence of a probability that Magnan would commit future criminal acts of violence that would constitute a continuing threat to society.

On May 10, 2005, Magnan appeared before the state trial court and pleaded guilty to Counts II through V of the amended information, i.e., one count of shooting with intent to kill and three counts of murder in the first degree. The State, in response, agreed to dismiss Count I of the amended information which, as noted, charged Magnan with conspiracy. “Before accepting [Magnan's] pleas, the [state trial court] received the results of a psychological competency evaluation and conducted an in-court competency inquiry in which [it] found Magnan competent to enter the pleas.” Magnan v. State, 207 P.3d 397, 401 (Okla.Crim.App.2009) ( Magnan I).

On July 6, 2005, Magnan appeared before the state trial court for sentencing. “Magnan stipulated to the aggravated circumstances pled in the State's bill of particulars, stated he had nothing to present in mitigation, waived any direct appeal, and asked to be sentenced to death for the murders.” Id. The state trial court “sentenced Magnan to death on each of the murder counts and sentenced him to a term of life imprisonment on the shooting-with-intent-to-kill count.” Id.

Direct review by the OCCA

Magnan filed an appeal brief with the OCCA asserting seven propositions of error. The OCCA concluded that Magnan had waived his right to direct appeal. But the OCCA proceeded to review what it described as “two non-waivable issues” in the case. Id. First, the OCCA “consider[ed] whether th[e] crime[s] occurred in Indian [c]ountry and so [were] beyond the jurisdiction of the State of Oklahoma.” Id. Second, the OCCA “conduct[ed] [its] statutorily required sentence review under [Okla. Stat. tit. 21, § 701.13] and Rule 9.4, Rules of the Oklahoma Court of Criminal Appeals.” Id.

With respect to the jurisdictional issue, the OCCA “granted Magnan's attorneys' request for a remand to the [state trial] court for an evidentiary hearing.” Id. at 402. On remand, the state trial court “heard evidence on Magnan's Indian status, the Indian status of the victims, the precise location of the property on which the murders occurred, and the title status of that property.” Id. Although all of the witnesses who testified at the hearing agreed that the location of the murders qualified as Indian country under federal law, the state trial court nevertheless “concluded on remand that the property was not Indian [c]ountry and the State properly exercised jurisdiction over the crimes charged.” Id. When the case returned to the OCCA, the majority of the court “agree[d] ... with the [state trial] court's conclusion that the crimes committed in th[e] case did not occur in Indian [c]ountry and ... that criminal jurisdiction was proper.” Id. at 406. Judge Chapel filed a dissenting opinion disagreeing with both of these conclusions. Id. at 414–15.

As for the sentence review, the OCCA unanimously concluded “that the sentence imposed was based upon aggravating circumstances supported by the evidence and not under the influence of passion, prejudice, or any other arbitrary factor.” Id. at 413.

Magnan filed a petition for writ of certiorari with the United States Supreme Court. On October 5, 2009, the Supreme Court denied Magnan's petition. Magnan v. Oklahoma, 558 U.S. 906, 130 S.Ct. 276, 175 L.Ed.2d 185 (2009).

Magnan's federal habeas proceedings

Magnan initiated these federal habeas proceedings on November 13, 2009, by filing a motion for appointment of counsel and a motion for leave to proceed in forma pauperis. Those motions were granted and, on August 2, 2010, Magnan's appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleged the following ground for relief:

The Petitioner is an Indian and an enrolled member of the Fort Peck Assiniboine and Sioux Tribes. The charged offenses occurred on a 1.0123–acre tract of land in the E/2 of the NE/4 of the SW/4 of Section 3, Township 8 North, Range 5 East, Seminole County, Oklahoma. This tract is an Indian allotment having Indian title which has not been extinguished, because 80% of the surface estate and 80% of the mineral estate remain restricted from alienation. Jurisdiction over the charged offenses was thus exclusively federal under 18 U.S.C. § 1153(a). By convicting the Petitioner without jurisdiction, the Oklahoma courts violated § 1153(a) and the United States Constitution.

ROA, Vol. I, at 13–14.

On August 23, 2011, the district court issued an opinion and order denying Magnan's petition. The district court also that day entered judgment in the case and issued an order granting Magnan a certificate of appealability.

II

Magnan argues on appeal, as he did below, that his crimes were committed in Indian country. More specifically, Magnan argues that the tract of land where the crimes occurred was an “Indian allotment[ ], the Indian titles to which ha [d] not been extinguished.” 18 U.S.C. § 1151(c). Therefore, Magnan argues, the federal government has exclusive criminal jurisdiction over his crimes pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153.1 Magnan further argues that the OCCA's “jurisdictional determination both turned on a clearly erroneous interpretation of the factual record and contravenes established federal law and Supreme Court precedent.” Aplt. Br. at 11. Consequently, Magnan argues, he is entitled to federal habeas relief from his Oklahoma state convictions and...

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