Oyler v. Allenbrand, 93-3192

• Decision Date: 28 April 1994
• Docket Number: No. 93-3192,93-3192
• Citation: 23 F.3d 292
• Parties: Jimmie D. OYLER, Petitioner-Appellant, v. Fred ALLENBRAND and the Attorney General of Kansas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 292

23 F.3d 292

Jimmie D. OYLER, Petitioner-Appellant, v. Fred ALLENBRAND and the Attorney General of Kansas Respondents-Appellees.

No. 93-3192.

United States Court of Appeals Tenth Circuit.

April 28, 1994.

Jimmie D. Oyler, pro se.

Robert T. Stephan, Kansas Atty. Gen., Timothy G. Madden, Special Asst. Atty. Gen., Department of Corrections, for respondent-appellee.

Before BRORBY and EBEL, Circuit Judges, and KANE, ^** District Judge.

EBEL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Jimmie D. Oyler, a Native American, appeals the district court's denial of his petition for writ of habeas corpus, alleging error in that court's conclusion that Kansas has criminal jurisdiction over him. He further contends that the cigarette tax laws of Kansas are regulatory and thus unenforceable against him, that the tax scheme violates his civil rights, and that he was denied his rights to a jury trial and to present certain evidence to the trial court. In denying the petition, the district court held that the Kansas Act, 18 U.S.C. Sec. 3243, empowered the State of Kansas to exercise criminal jurisdiction over petitioner despite the contrary language of the Treaty with the Shawnee, 1831 (Shawnee Treaty). The district court also dismissed petitioner's civil rights claims as inappropriate for habeas relief. Oyler v. Allenbrand, 815 F.Supp. 1441, 1444 (D.Kan.1993). Because we agree with the legal conclusions reached by the district court regarding the scope of Kansas' criminal jurisdiction and petitioner's civil rights claims, we affirm that portion of the district court's order. We remand the remainder of the case, however, in order that the district court may consider whether the additional claims raised by petitioner have been exhausted or are procedurally barred.

Petitioner, a Loyal Shawnee by roll and a tribal member of the Cherokee as a Cherokee Shawnee, operated a smokeshop on his restricted Indian allotment on land classified as "Indian country." See 18 U.S.C. Sec. 1151. ¹ During December 1989 and January 1990, agents from the Kansas Bureau of Investigation, working undercover, purchased cigarettes at petitioner's smokeshop. None of the cigarettes had Kansas tax stamps, the purchasers did not pay sales tax, and petitioner did not ask the agents if they were Indians. Petitioner was convicted of three counts of possessing more than two hundred cigarettes without the requisite tax stamp in violation of Kan.Stat.Ann. Secs. 79-3321 and 79-3322, and three counts of the sale of cigarettes at retail that did not bear the Kansas tax stamp in violation of those same statutes. All of these offenses are misdemeanors. Petitioner was sentenced to 180 days in jail and fined $2,250.

Petitioner's conviction was upheld by the Kansas Court of Appeals. State v. Oyler, 15 Kan.App.2d 78, 803 P.2d 581 (1990). The Kansas Supreme Court denied review. In April 1991, before petitioner began to serve his sentence, he filed a petition for writ of habeas corpus in the United States District Court for the District of Kansas. Shortly thereafter, petitioner's sentence was modified to two years' probation and payment of the fine. He has now completed his probation.

We first address the issue of our habeas jurisdiction. See McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir.1989) (court has a duty to inquire into its own jurisdiction). The federal habeas statute requires a plaintiff to be in custody when a petition for habeas corpus is filed. See 28 U.S.C. Sec. 2254(a). Here, petitioner filed his habeas petition while still on bond pending appeal, but before his sentence had been reduced to probation and before he began to serve that probation. We deem this filing to have occurred while petitioner was "in custody." See Hensley v. Municipal Ct., 411 U.S. 345, 345-46, 93 S.Ct. 1571, 1571-72, 36 L.Ed.2d 294 (1973) (person released on his own recognizance is "in custody" for purpose of habeas); see also United States ex rel. Grundset v. Franzen, 675 F.2d 870, 872 (7th Cir.1982) (custody requirement satisfied by person on bail pending final disposition of his case). "Once federal jurisdiction is thus established, plaintiff['s] subsequent release [has] no effect on that jurisdiction." Nakell v. Attorney General, 15 F.3d 319, 323 (4th Cir.1994).

That conclusion, however, does not completely resolve the jurisdictional inquiry. Because petitioner has now served all of his probation, a separate and distinct jurisdictional question arises involving the issue of mootness. "Generally, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Id. at 322 (citing Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)) (internal quotes omitted). Mootness deprives a court of jurisdiction. New Mexico Env't Dep't v. Foulston (In re L.F. Jennings Oil Co.), 4 F.3d 887, 888 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). An exception to the mootness doctrine occurs, however, in instances where collateral consequences from a judicial decision give a party a sufficient stake in the outcome of the case. Nakell, 15 F.3d at 322.

In Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), the Court noted with approval its earlier decisions holding that a criminal case is moot " 'only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.' " Id. at 632, 102 S.Ct. at 1327 (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968)); see also Walker v. McLain, 768 F.2d 1181, 1183 (10th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986). The Seventh Circuit applied the Lane standard in Franzen and held that the possibility of collateral consequences arising from a misdemeanor conviction, such as the chance that a later sentence might be enhanced because of an earlier misdemeanor conviction or that such a conviction could be used in some jurisdictions to impeach the petitioner in later proceedings, is sufficient to overcome mootness. Franzen, 675 F.2d at 873. Thus, the fact that petitioner was only convicted of misdemeanors will not, by itself, render his case moot. ²

Because petitioner's application for habeas relief was filed while petitioner was in custody, and because possible adverse collateral consequences could flow from petitioner's conviction, we find we have jurisdiction over this case and petitioner's appeal is not moot. See Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir.1992).

Turning to the merits, petitioner argues that Kansas had no criminal jurisdiction over him because of the rights he claims from the Shawnee Treaty and, derivatively, from the Cherokee Treaty of 1835. ³ The district court, however, held that the Kansas Act, 18 U.S.C. Sec. 3243, gave Kansas criminal jurisdiction over petitioner, despite the provisions of the Shawnee Treaty. Oyler, 815 F.Supp. at 1443-44. We review the district court's statutory interpretation de novo. Negonsott v. Samuels, 933 F.2d 818, 819 (10th Cir.1991), aff'd, --- U.S. ----, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993).

Article X of the Shawnee Treaty pledged that the Shawnee lands would never be within the bounds of any state or subject to state law. ⁴ We have found no evidence that this treaty has ever been formally abrogated. In 1940, however, Congress enacted 18 U.S.C. Sec. 3243, the Kansas Act. That Act provides in full:

Jurisdiction is conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State.

This section shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.

Act of June 25, 1948, ch. 645, 62 Stat. 827 (1948). Based on Act of June 8, 1940, ch. 276, 54 Stat. 249 (codified at 18 U.S.C. Sec. 3243). This case requires us to determine the effect of the Kansas Act on the Shawnee Treaty. ⁵

Petitioner argues that the Kansas Act does not apply to him but, instead, applies only to the four federally recognized Kansas tribes who were living on reservations in Kansas at the time the Act became law. Those tribes are the Iowa, Kickapoo, Potawatomi, and Sac and Fox (Original Tribes). Further, because he is a Shawnee and an heir to the promises of the Shawnee Treaty, petitioner argues that Kansas cannot exercise criminal jurisdiction over him in the absence of clear congressional intent to abrogate the Treaty.

The Supreme Court has recently held that the Kansas Act, "[s]tanding alone, ... unambiguously confers jurisdiction on Kansas to prosecute all offenses--major and minor--committed by or against Indians on Indian reservations in accordance with state law." Negonsott v. Samuels, --- U.S. ----, ----, 113 S.Ct. 1119, 1123, 122 L.Ed.2d 457 (1993). The respondents would have us simply apply the Supreme Court's holding in Negonsott and conclude that the Kansas Act also applies to petitioner. We think, however, that this case presents issues different from those considered in Negonsott and requires further analysis.

In Negonsott, the Supreme Court examined the interrelationship between the Indian Major Crimes Act, 18 U.S.C. Sec. 1153, and the Kansas Act. Whether the Act applied to Indians not members of the Original Tribes was not an issue because the petitioner in Negonsott was a Kickapoo....