U.S. v. Cuch

• Citation: 79 F.3d 987
• Decision Date: 21 March 1996
• Docket Number: Nos. 95-4016,95-4034,s. 95-4016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kim Ford CUCH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Audie APPAWOO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 987

79 F.3d 987

UNITED STATES of America, Plaintiff-Appellee, v. Kim Ford CUCH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Audie APPAWOO, Defendant-Appellant.

Nos. 95-4016, 95-4034.

United States Court of Appeals Tenth Circuit.

March 21, 1996.

Appeals from the United States District Court for the District Of Utah, Central Division, Nos. 94-CV-494, 91-CR-240, 92-CV-483, 82-CR-109.

Scott M. Matheson, Jr., United States Attorney (Barbara Bearnson, Assistant United States Attorney, and Matthew R. Howell, Assistant United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee United States of America.

Manny Garcia, Salt Lake City, Utah, for Defendant-Appellant Cuch.

Wendy Hufnagel, Heber City, Utah, for Defendant-Appellant Appawoo.

Before ANDERSON, KELLY, and HENRY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The movants in these consolidated cases were both convicted in federal district court of federal crimes committed on land in eastern Utah that we had determined to be part of the Ute Indian Tribe's Uintah Reservation. Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.1985) (en banc), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). In 1994, the United States Supreme Court declared that the lands in question were not part of the Uintah Reservation; therefore, the state of Utah, not the federal government, had jurisdiction over crimes committed in the disputed area. Hagen v. Utah, --- U.S. ----, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994).

Relying on Hagen, the movants now collaterally attack their convictions pursuant to 28 U.S.C. § 2255, claiming them to be void for want of jurisdiction. The issue is whether the Hagen decision both can and should be applied prospectively only with respect to convictions on collateral review. The district court in each case answered these questions in the affirmative. We agree. The Supreme Court, and by extension this court, has the undoubted power to declare that its jurisdictional and other decisions shall be limited to prospective application; and neither controlling precedent, policy considerations, nor questions of fundamental fairness require a different result here. Accordingly, we affirm.

BACKGROUND

In 1975, the Ute Indian Tribe sought to exercise jurisdiction over all land originally encompassed in its Uintah Reservation, including land in and around the cities of Roosevelt and Tridell, Utah. When non-Indians protested the action, the tribe sued in federal court for declaratory and injunctive relief, and the state of Utah intervened. Ute Indian Tribe v. Utah, 75-C-408 (D.Utah). ¹ The course of the litigation is as follows:

In 1976, the United States District Court for the District of Utah issued a preliminary injunction in favor of the tribe, enjoining the state from exercising jurisdiction in the disputed lands pending a decision on the merits. ² The court held a trial on the merits in 1979 and issued an opinion in 1981 in favor of the tribe, holding that Congress's decision to open the Reservation to non-Indian settlement in 1905 had no effect on the Reservation boundaries. Ute Indian Tribe v. Utah, 521 F.Supp. 1072 (D.Utah 1981). After a panel of this court addressed the question on appeal, Ute Indian Tribe v. Utah, 716 F.2d 1298 (10th Cir.1983), we affirmed in pertinent part in an en banc rehearing. Ute Indian Tribe v. Utah, 773 F.2d 1087, 1089 (10th Cir.1985). The Supreme Court subsequently From 1976 forward, relying on the various decisions in the Ute litigation, federal prosecutors brought charges against Indians for criminal acts committed within the historical boundaries of the Reservation. See DeCoteau v. District County Ct. for the Tenth Judicial Dist., 420 U.S. 425, 427 & nn. 1-2, 95 S.Ct. 1082, 1084 & nn. 1-2, 43 L.Ed.2d 300 & nn. 1-2 (1975) (discussing federal criminal jurisdiction over Indian acts on reservations). Challenges to federal jurisdiction during that time were dismissed or decided on the authority of Ute Indian Tribe. See, e.g., United States v. McCook, 92-CR-286W (D.Utah), cited in Appellee's Br. at 10 n.6; cf. United States v. Felter, 546 F.Supp. 1002, 1003 & n. 1 (D.Utah 1982) (identifying land on which Indian defendant allegedly illegally fished as Indian country), aff'd, 752 F.2d 1505 (10th Cir.1985); State v. Gardner, 827 P.2d 980, 980 n. 1 (Utah.Ct.App.) (assuming city of Roosevelt lay within Reservation boundaries for purposes of state jurisdictional challenge), cert. denied, 836 P.2d 1383 (Utah 1992).

denied certiorari. Utah v. Ute Indian Tribe, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986).

In the late 1980s and early 1990s, the state of Utah renewed its assertion of jurisdiction over the lands in question, and the state's highest court concurred. See State v. Perank, 858 P.2d 927 (Utah 1992); State v. Coando, 858 P.2d 926 (Utah 1992); State v. Hagen, 858 P.2d 925 (Utah 1992), aff'd, --- U.S. ----, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). ³ Because these state cases inherently conflicted with our Ute Indian Tribe decision, which continued to control federal prosecutorial decisions in the Uintah Basin, the state agreed it would not enforce its new decisions until the matter could be finally resolved by the United States Supreme Court. See Appellee's Br. at 11-12 n.9 (quoting stipulation); see also State v. Hagen, 858 P.2d at 925 (staying state court cases at state's request pending federal proceedings). The federal district court in Utah subsequently issued an injunction incorporating the terms of the state's stipulation. See Ute Indian Tribe, 75-C-408 (D.Utah), Order dated Sept. 2, 1992, at 1-2, quoted in Appellee's Br. at 12 n.9.

In 1994, the Supreme Court handed down its opinion in Hagen v. Utah, --- U.S. ----, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). Hagen involved a state criminal judgment obtained for acts committed within the Reservation boundaries established by Ute Indian Tribe. Interpreting Congress's intent in opening the Reservation to non-Indian settlement, and noting among other factors our decision in Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1400 (10th Cir.) (criticizing Ute Indian Tribe 's conclusion as "unexamined and unsupported in the opinion," though leaving its viability intact), cert. denied, 498 U.S. 1012, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990), the Supreme Court held that the state had jurisdiction to prosecute Hagen because Congress had diminished the Uintah Reservation in the early 1900s. See Hagen, --- U.S. at ----, ----, 114 S.Ct. at 967, 970. The Hagen decision effectively overruled the contrary conclusion reached in the Ute Indian Tribe case, redefined the Reservation boundaries resulting from our earlier decision, and conclusively settled the question.

The movants in the instant cases are Indians sentenced to federal prison for crimes committed in violation of federal law during the time the Ute Indian Tribe decisions were in effect. In 1982, movant Audie Appawoo pled guilty to second degree murder under 18 U.S.C. §§ 1111 and 1153 for a homicide he committed near Tridell, Utah. ⁴ In 1992, movant Kim Ford Cuch pled guilty to sexual abuse under 18 U.S.C. §§ 2242(2)(B) and 1153 and abusive sexual contact under 18 U.S.C. §§ 2244(a)(1) and 1153 for sexual misconduct Following the Hagen decision, Cuch moved to vacate his sentence pursuant to 28 U.S.C. § 2255. He argued that the federal court had no jurisdiction over him because the sexual abuse crimes to which he pled guilty did not take place in Indian country as defined by Hagen. The case was referred to a magistrate judge, who recommended granting the motion and immediately releasing Cuch. The district court denied the motion, however, declining to apply Hagen retroactively on collateral review. See United States v. Cuch, 875 F.Supp. 767 (D.Utah 1995).

                he committed in Roosevelt, Utah. 5  The conduct underlying each of these offenses must be prosecuted in federal court if it takes place in "Indian country," see 18 U.S.C. § 1153(a), defined by Congress to include "all land within the limits of any Indian reservation under the jurisdiction of the United States Government," id. § 1151.   See Negonsott v. Samuels, 507 U.S. 99, 101-03, 113 S.Ct. 1119, 1121-22, 122 L.Ed.2d 457 (1993).   As indicated above, at the time Appawoo and Cuch each pled guilty, the law in this circuit recognized the areas in which each movant committed his criminal acts as part of the Uintah Reservation, mandating exclusive federal jurisdiction
                

Appawoo likewise moved to vacate his murder sentence under § 2255, raising the same issue. The district court in that case relied on the decision in Cuch to deny the motion in an unpublished order. See Appawoo R. Vol. I, Tab 24. Both Cuch and Appawoo now appeal, incorporating the report and recommendation of the magistrate judge in Cuch as the primary basis for their arguments. See Cuch Br. at 4-5 & app. D; Appawoo Br. at 7.

DISCUSSION

We note at the outset that we may properly examine a district court's subject matter jurisdiction on collateral review. See 28 U.S.C. § 2255; United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993) ("[J]urisdictional issues are never waived and can be raised on collateral attack...."). We review jurisdictional issues de novo. E.g., Kelley v. Michaels, 59 F.3d 1055, 1057 (10th Cir.1995). These motions present additional, related legal issues that are likewise subject to our plenary review. See United States v. Maher, 919 F.2d 1482, 1485 (10th Cir.1990). We address each of these issues in turn.

1.

The Supreme Court can and does limit the retroactive application of subject matter jurisdiction rulings. ⁶ For example, in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), overruled by Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987), the court held that constitutional restraints deprived military courts of jurisdiction to try individuals...