U.S. v. Tony

• Decision Date: 17 March 2011
• Docket Number: No. 09–2264.,09–2264.
• Citation: 637 F.3d 1153
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Brian Keith TONY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

637 F.3d 1153

UNITED STATES of America, Plaintiff–Appellee,

v.Brian Keith TONY, Defendant–Appellant.

No. 09–2264.

United States Court of Appeals, Tenth Circuit.

March 17, 2011.

Presiliano Torrez, David N. Williams, Office of the United States Attorney, Albuquerque, NM, for Plaintiff–Appellee.Brian Keith Tony, Florence, CO, pro se.Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

O'BRIEN, Circuit Judge.^*

Brian Keith Tony, a federal prisoner proceeding pro se ¹ and in forma pauperis, seeks to appeal from the district court's dismissal of his 28 U.S.C. § 2255 motion raising jurisdictional and double jeopardy issues. Because Tony's jurisdictional arguments are incorrect and he has otherwise failed to make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a certificate of appealability (COA) and dismiss this matter.

I. BACKGROUND

A federal jury convicted Tony, an Indian, of two counts of assault resulting in serious bodily injury and one count of aggravated burglary, alleged to have been committed within “Indian Country” as defined in 18 U.S.C. § 1151. ² He was sentenced to 130 months imprisonment. He appealed; we affirmed. United States v. Tony, 195 Fed.Appx. 789, 790 (10th Cir.2006) (unpublished). He then filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging three issues: 1) Title 18, the United States Criminal Code, was not constitutionally enacted and therefore is null and void; 2) the federal court lacked subject-matter jurisdiction because the charged offenses were not committed within Indian Country; and 3) his federal prosecution violated the Double Jeopardy Clause ³ as he had already been acquitted in tribal court of violations of tribal law arising from the same acts. None of these issues were raised in his direct appeal because, as Tony put it in his § 2255 motion, his “[a]ttorney over looked the issue[s]” or “was unaware of them.” ⁴ (R. Vol. 1 at 7, 9, 10, 13.)

The government responded: (1) Tony's arguments were procedurally barred because he did not raise them at trial or in his direct appeal; (2) Title 18 was a valid exercise of congressional authority; (3) the evidence showed the crime was committed in Indian Country and Tony stipulated to that fact at trial; and (4) his federal prosecution was not barred by the Double Jeopardy clause. In reply, Tony asserted the stipulation at trial was “ only under the advice of his Counsel, which is now known to have been ineffective advice.” ( Id. at 175.) He also claimed double jeopardy applied because the tribal government and the federal government were “two sovereigns act[ing] as one.” ( Id. at 177.)

The district judge referred the matter to a magistrate judge who filed a report recommending Tony's motion be dismissed (R & R). The magistrate concluded the double jeopardy argument was procedurally barred because it was not raised on direct appeal and an “oversight” by Tony's attorney did not establish cause for the failure to raise it. ( Id. at 303). And, in any event, it was without merit. He concluded the remaining claims were jurisdictional issues which must be addressed (could not be waived or forfeited), but failed on their merits: (1) the argument regarding the validity of Title 18 has repeatedly been rejected by the federal courts; and (2) the argument regarding Indian Country status was based on Tony's erroneous legal assumptions. The magistrate explained Tony's crimes occurred on an “Individual Indian Allotment ” and were thus within Indian Country. (R. Vol. 1 at 304) (quotations omitted).

Tony made timely objections to the R & R. He made merits objections to the double jeopardy recommendation, and in a frail attempt to avoid the procedural bar created by his failure to raise the issue on direct appeal, he conjured up a new claim of ineffective assistance of trial counsel, alleging his counsel was ineffective for, inter alia, failing to argue double jeopardy at trial even though the trial judge invited such an argument during a bench conference.⁵ Additionally, without any explanation, he asserted his attorney should have argued “the land paper showed two different allotment numbers.” ⁶ (R. Vol. 1 at 311.) Tony also objected to the R & R because he had “not given his express consent” for the magistrate judge to consider his § 2255 motion and, therefore, the judge “did not have jurisdiction....” (R. Vol. 1 at 329.)

The district judge overruled all objections. Specifically, she concluded Tony's consent to the referral to the magistrate was unnecessary because the matter had been referred pursuant to 28 U.S.C. § 636(b)(1), which does not require the parties' consent. She adopted the R & R and denied habeas relief.

The district judge also determined Tony's late-blooming ineffective assistance of counsel claims improperly attempted to inject a new theory into the case. ⁷ Because this attempted amendment of his petition was untimely it constituted an unauthorized second or successive § 2255 motion, which was denied without prejudice.⁸ The court also denied Tony's request for a COA.

II. DISCUSSION

The denial of a 28 U.S.C. § 2255 motion may be appealed if the district court or this Court issues a COA. 28 U.S.C. § 2253(c)(1)(B). But a COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted).

A. Federal Jurisdiction

We begin with Tony's claim the federal district court lacked jurisdiction because “[w]ithout jurisdiction the court cannot proceed at all in any cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotations omitted). “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Id. (quotations omitted). The magistrate, quoting United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993), concluded his claims were “jurisdictional issues [which] are never waived and can be raised on collateral attack.” Cook cited Tooisgah v. United States, 186 F.2d 93, 96 (10th Cir.1950), for the proposition that jurisdiction can be examined for the first time in a habeas motion. 997 F.2d at 1320. That proposition is nominally correct, but the term “jurisdiction” is often misused. See Steel Co., 523 U.S. at 90, 118 S.Ct. 1003 (“Jurisdiction, it has been observed, is a word of many, too many, meanings.”) (quotations omitted).

We start with the fundamentals. Subject-matter jurisdiction cannot be forfeited or waived “because it involves a court's power to hear a case.... Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). But only subject-matter cannot be waived and “in every federal criminal prosecution [subject-matter jurisdiction] comes from 18 U.S.C. § 3231, ... That's the beginning and the end of the ‘jurisdictional’ inquiry.” United States v. White Horse, 316 F.3d 769, 772 (8th Cir.2003) (quotations omitted).

Section 3231 states in relevant part “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” ⁹ But Tony's claim is a bit more sophisticated. He argues the federal government was without jurisdiction because Public Law 280, ch. 505, 67 Stat. 588 (1953), divested the federal government of exclusive jurisdiction and conferred upon certain states, known as the “mandatory states,” jurisdiction over all criminal offenses committed by or against Indians in defined portions of Indian Country. See 18 U.S.C. § 1162(a), (c). It gave other states the option to assume jurisdiction over Indian Country by affirmative legislative action. See § 7 of Pub. L. No. 280, 67 Stat. at 590, repealed by Pub. L. No. 90–284, § 403(b), 82 Stat. 79 (1968). This law was amended in 1968 to eliminate the requirement of affirmative legislative action and to require the consent of the Indian tribe by special election before a state could assume jurisdiction. See Pub. L. No. 90–284, §§ 401(a), 406, 82 Stat. 78, 80 (1968), codified at 25 U.S.C. §§ 1321(a), 1326. However, we need not decide, or even discuss, whether those statutes stripped the federal district courts of subject-matter jurisdiction or made federal jurisdiction concurrent with state courts. This is because New Mexico was not one of the states originally identified in Public Law 280, and it has not assumed criminal jurisdiction over Indian Country. See State v. Atcitty, 146 N.M. 781, 215 P.3d 90, 94 (2009). The district court had jurisdiction. 18 U.S.C. § 3231. Nevertheless, Tony has yet another jurisdictional argument.

Tony points to 18 U.S.C. § 1153(a), which grants the federal government exclusive jurisdiction to prosecute Indians who commit certain crimes occurring within Indian County,¹⁰ including assault resulting in serious bodily injury and burglary. He contends his crimes did not occur in Indian Country, therefore the district court lacked subject-matter jurisdiction. The district court rejected this claim on the merits, concluding the crime did occur in Indian Country. It should not have reached the merits, however, because Tony's claim does not touch on subject-matter jurisdiction and was thus waived when Tony failed to raise it on direct appeal.

The...