US v. Cuch, 94-C-0494-S.

Citation875 F. Supp. 767
Decision Date20 January 1995
Docket NumberNo. 94-C-0494-S.,94-C-0494-S.
PartiesUNITED STATES of America, Plaintiff, v. Kim Ford CUCH, Defendant.
CourtUnited States District Courts. 10th Circuit. United States District Court of Utah

Barbara Bearnson, Asst. U.S. Atty., U.S. Attorney's Office, Salt Lake City, UT, for plaintiff.

Manny C. Garcia, Salt Lake City, UT, for defendant.

MEMORANDUM DECISION

SAM, District Judge.

This matter is before the court on movant Cuch's motion to vacate judgment, conviction and commitment pursuant to 28 U.S.C. § 2255. The matter was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). A report and recommendation ("R & R") was issued by the magistrate judge on July 26, 1994. On August 9, 1994 the government filed objections to the R & R. The movant has filed no responsive pleading to the government's objections; however, a hearing was held October 18, 1994, all counsel were in attendance and movant's counsel presented argument to the court.1 After the hearing the parties were requested to submit supplemental briefing. Supplemental briefing was concluded on January 3, 1995. Having considered the oral and written arguments of counsel and conducted a de novo review of the conclusions of the R & R, the court is prepared to issue the following memorandum decision.

I. Background

In 1992 movant pled guilty to charges of sexual abuse in violation of 18 U.S.C. § 2242(2)(B) and abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). Movant was sentenced, based on his conviction, and is now serving his sentence at the federal correctional institution at Safford, Arizona. Movant did not appeal his conviction to the Court of Appeals for the Tenth Circuit nor did he use any other available federal remedies, including previous post-conviction motions under 28 U.S.C. § 2255.

Movant is an Indian and his crime was committed in Roosevelt, Utah. At the time of his conviction, under Tenth Circuit law, Roosevelt, Utah was believed to be "Indian country," as that term is defined in 18 U.S.C. § 1151, and jurisdiction for his crime was believed to lie exclusively with the federal court.2

In Hagen v. Utah, ___ U.S. ___, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994), the Supreme Court determined that Roosevelt, Utah was not within Indian country because it was not within the territorial area of the Uintah/Ouray Indian Reservation. Id. at ___, 114 S.Ct. at 970. Movant claims that since his crime was not committed in "Indian country," the offense was not within the jurisdiction of this court and no federal offense was committed.

Although it settled the issue of diminishment of the Indian Reservation in question, the Supreme Court in Hagen did not address the effect of its holding on federal criminal convictions that relied on §§ 1152 or 1153 for jurisdiction and were based on conduct that occurred in areas that, as a result of Hagen, are no longer considered to be "Indian country." The question before this court for the first time is whether to apply Hagen retroactively to collaterally attack otherwise sound, fundamentally fair convictions.

II. Analysis

This court notes the unique and unprecedented nature of the issue presented. The court, therefore, is unable to rely exclusively on any of the "retroactivity tests" heretofore announced or applied. Nor may the court blindly apply the settled rule that the absence of subject matter jurisdiction renders a conviction void ab initio. See U.S. v. Johnson, 457 U.S. 537, 550-51, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982). Rather, this court, as it must, has considered the facts and the state of the law at the time of petitioner's conviction and fashioned a rule which will protect the rights and expectations of all parties involved in this litigation.

The jurisdictional context in place at the time of petitioner's offense, trial and conviction dictated exclusive federal jurisdiction. As more fully outlined by the government in its Answer to Motion for Post-Conviction Relief Under 28 U.S.C. § 2255 ("Govt.'s Answer") at pp. 6-11, at all relevant times the state was barred by stipulations, federal injunctions, federal decisional law, including Tenth Circuit authority, and court order from exercising civil or criminal jurisdiction over the Ute Tribe or any of its members at any location within the original boundaries of the Uintah Reservation, including the area at issue in Hagen.3 Thus, from the time of the first preliminary injunction in 1976,

until the United States Supreme Court decided Hagen on February 23, 1994, federal, state, and local law enforcement authorities and prosecutors, defendants, and the federal judges were required to accept that the federal court had exclusive jurisdiction to prosecute the crimes enumerated in 18 U.S.C. §§ 1152 and 1153(a) that were committed in the area disputed in Hagen.

Govt. Answer at 8. To find that Hagen applies retroactively would, in the view of this court, have the effect of creating an ex post facto lawless zone in the area affected by the diminishment addressed in Hagen. This point distinguishes this case from the precedent cited by the parties and the Indian jurisdiction cases cited by the magistrate judge in the R & R. See Govt.'s Obj. at 6 n. 2. As a practical and legal matter, there was no alternative forum for prosecution of movant or others similarly situated from 1976 through announcement of the Hagen decision in 1994.

Given this context, the court must determine whether Hagen should be applied retroactively. Because the question at issue involves a new substantive interpretation of federal legislation that affects the jurisdiction of this court, the magistrate judge found the cases of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) had no application. Both involved new rules of criminal procedure. Likewise, the magistrate judge found Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973) distinguishable. See R & R at 5-8. While there are aspects of each of these cases, as well as others cited by the parties, which distinguish them from the instant situation, the court finds sound, general guiding principles in Gosa and Teague which are helpful and appropriate guideposts in reaching the unique and unprecedented issue before the court.

Contrary to the conclusions of the R & R, the court finds Gosa stands for the proposition that even when jurisdictional questions are involved, retroactivity is not mandated.4 This conclusion is supported by the Tenth Circuit's holding in Schlomann v. Moseley, 457 F.2d 1223 (10th Cir.1972), cert. denied 413 U.S. 919, 93 S.Ct. 3068, 37 L.Ed.2d 1041 (1973).

It may be argued that where a later opinion decides that jurisdiction did not exist as to some subject matter, it must apply retroactively. However, we are not persuaded that because the later decision is grounded in jurisdictional terms that consideration is foreclosed as to how it should apply. Such a retroactivity question is more critical and the factors may be viewed differently, but the jurisdictional terminology does not dispense with the duty to decide whether "the Court may in the interest of justice make the rule prospective ... where the exigencies of the situation require such an application."

Schlomann, 457 F.2d at 1226 (citations omitted).

Thus, a court may look to several factors to determine the propriety of retroactive application of a new Supreme Court ruling. The court finds the guidelines established in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), helpful. The court in Stovall considered: (a) the purpose to be served by the new standard or rule, (b) the extent of reliance by law enforcement authorities on the old standard or rule, and (c) the effect on the administration of justice of a retroactive application of the new standard or rule. See Stovall, 388 U.S. at 297, 87 S.Ct. at 1970.

Regarding the purpose to be served by the Supreme Court's pronouncement in Hagen, that Court ruled that the Uintah Indian Reservation was diminished shortly after the turn of the century and, therefore, the State of Utah had jurisdiction over the opened lands. See Hagen, ___ U.S. at ___- ___, 114 S.Ct. at 959-960. Nowhere in Hagen did either the petitioner or the Supreme Court challenge the fundamental fairness or accuracy of the conviction or in any way link the holding to any such defect.5 Since the Supreme Court's interpretation of the acts of Congress which resulted in diminishment was not intended to overcome a trial aspect that substantially impaired the truth-finding function of the federal court, retroactivity is not compelled and the court finds it appropriate to analyze the issue under the second and third elements of the Stovall analysis.

Regarding the reliance factor, this court finds that from the period of the 1976 preliminary injunction through the 1994 Hagen decision, and in particular from the point of the Tenth Circuit's affirmance of the district court's decision in 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), the law was "settled," giving federal courts exclusive jurisdiction over crimes committed in the area in question.

The court is persuaded that, for all practical purposes, no alternative to the federal forum existed in which to try persons such as movant. For over a decade, the state and federal criminal justice systems justifiably relied on Tenth Circuit law regarding the Reservation boundaries. Neither the federal nor state systems, nor in particular the individuals who relied on the finality of the federal prosecutions during this time period, can be faulted for their reliance on the law as it stood for over a decade before Hagen. Neither can they be faulted for not anticipating the Supreme Court's clear break with Ute Indian Tribe, especially in light of the denial of a writ of certiorari in that matter.6

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