FREEMONT v. U.S., (D.Neb. 2002)

JOSEPH F. BATAILLON, United States District Court Judge.

Before the court are the pro se petitioner's objections, Filing No. 33, to the magistrate's report and recommendation, Filing No. 32. The magistrate recommends that this court deny the petitioner's motions 1) to proceed in forma pauperis, Filing No. 27; 2) to vacate judgment and sentence pursuant to 28 U.S.C. § 2255, Filing No. 28; and 3) for appointment of counsel, Filing No. 30. I have reviewed the record and the applicable law, and for the reasons set forth below, I adopt the report and recommendation in its entirety.

Magistrate Judge Thalken filed the report and recommendation on June 21, 2001. A party "may object to a recommendation entered by a magistrate judge in a dispositive matter by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation." NELR 72.4. Service by mail, which occurred in this case, is complete upon mailing. Fed.R.Civ.P. 5(b). The petitioner therefore had ten days from June 21, excluding weekends and the July 4th holiday, to file his objections, plus an additional three days for mailing. See Fed.R.Civ.P. 6(a), (e). The latest the petitioner could have filed his objections was July 10, 2001.

The petitioner states that he received the report and recommendation on June 25, 2001, but he erroneously calculates that his objections were not due before July 13, 2001. Filing No. 33 at 3. Even if this were true, his objections could not have been timely because they were not filed with the court until July 16, 2001.

Further, even assuming the petitioner's objections were timely filed, I nevertheless overrule them and deny the petitioner's motions as meritless.

Background

On September 23, 1999, a grand jury indicted the petitioner, an Indian, for assaulting another Indian with a dangerous weapon with intent to do bodily harm while on the Omaha Indian Reservation, in violation of 18 U.S.C. § 113(a)(3). Filing No. 1. The petitioner pleaded guilty on December 3, 1999. Filing No. 17. On February 18, 2000, the court sentenced him to a term of imprisonment of forty-eight months with three years of supervised release and restitution. Filing No. 25. The petitioner did not appeal to the Eighth Circuit.

On November 16, 2000, the petitioner filed his section 2255 motion. Filing No. 28. He argues that the federal government did not establish jurisdiction over the offense within Indian Country. This argument is baseless.

Section 2255/Ineffective Assistance of Counsel

Individuals in federal custody may collaterally attack a sentence imposed after conviction by applying for a writ of habeas corpus. See 28 U.S.C. § 2255. Before seeking habeas corpus relief, an individual in federal custody must first exhaust his remedies in the district and circuit courts in which he was convicted and sentenced and apply to the United States Supreme Court on certiorari from a denial of such remedies. The grounds for collateral attack of a sentence pursuant to section 2255 are narrowly limited. United States v. Addonizio, 442 U.S. 178, 184 (1979). The Supreme Court has "long and consistently affirmed that a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982).

A petitioner's failure to raise errors on direct appeal generally precludes the assertion of those errors for the first time in a collateral attack under section 2255. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). If a section 2255 motion rests on issues not raised at trial and on direct appeal, the petitioner bears the burden of demonstrating both cause to excuse the procedural default and that actual prejudice will result from the errors at issue. Frady, 456 U.S. at 167. Absent unusual circumstances, a showing of ineffective assistance of counsel satisfies both cause and prejudice. Id.

To establish ineffective assistance of counsel within the context of section 2255, a petitioner faces a heavy burden.

A claim of ineffective assistance of counsel [under section 2255] must be scrutinized under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, in order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must prove both that his counsel's representation was deficient and that the deficient performance prejudiced the defendant's case. The first part of the test is met when the defendant shows that counsel `failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibit[ed] under similar circumstances.' The second part is met when the defendant shows that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'

Apfel, 97 F.3d at 1076 (citations omitted). Because a petitioner's failure to establish prejudice can be dispositive of a section 2255 habeas corpus petition, the court need not address the reasonableness of an attorney's representation if the petitioner cannot establish prejudice. Id. In this case, the petitioner argues that his failure to raise the jurisdictional claim on direct appeal was the result of ineffective assistance of counsel. Because I find that the federal government did have jurisdiction over the petitioner's prosecution, his claim of ineffective assistance of counsel fails under the Strickland test: even if his counsel's assistance was ineffective, he cannot show that such ineffectiveness prejudiced his case.

Jurisdiction

The petitioner asks the court to engage in a detailed historical analysis of the "jurisdictional relationship" between the Omaha Tribe, of which the petitioner is a member, and the federal government. Petitioner's Objections at 4. The petitioner appears to argue that such an analysis will reveal that federal government has no jurisdiction over the crime of which the petitioner was convicted because Omaha tribal lands were never ceded to the United States and because federal statutes allegedly establishing criminal jurisdiction in Indian country were illegal. Such an analysis is not necessary, however, because the issues which the petitioner raises have already been resolved in this circuit.

"[I]n the absence of explicit congressional authorization[,] a federal court lack[s] jurisdiction to try an Indian for a crime committed against another Indian within Indian country." Walker v. Rushing, 898 F.2d 672, 674-75 (8th Cir. 1990) (citing Ex parte Crow Dog, 109 U.S. 556, 572 (1883)). But Congress enacted the Major Crimes Act in 1885, extending certain provisions of federal law, including the offense of assault with a dangerous weapon, to conduct by Indians against other Indians within Indian country. 18 U.S.C. § 1153. The relevant portions of 18 U.S.C. § 1153 provide:

Any Indian who commits against the person . . . of another Indian or other person any of the following offenses, namely . . . assault with a dangerous weapon . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

In 1953, Congress gave certain states, including Nebraska, the right to exercise criminal jurisdiction over specified Indian country within their respective borders "to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory." 18 U.S.C. § 1162(a). In 1968, however, Nebraska retroceded this grant of jurisdiction to the federal government. Omaha Tribe v. Village of Walthill, 460 F.2d 1327, 1328 (8th Cir. 1972); Walker v. Rushing, 898 F.2d at 674; United States v. Merrick, 767 F. Supp. 1022, 1023 (D.Neb. 1991) (holding federal district court had jurisdiction over assault prosecution of an Indian that had occurred on Indian territory because Nebraska's retrocession was valid).

Here, the court need not look at the treaties or other documents to which the petitioner refers. Section 1153 clearly provides that because the petitioner assaulted his victim within in Indian country, the district court has jurisdiction over the prosecution of assault. The petitioner's claim that his case was prejudiced by counsel's failure to appeal the jurisdictional issue is simply without merit. Any such appeal would have been frivolous.

Section 2255 Hearing

The district court need not conduct a hearing under section 2255 if the motion and court records conclusively show that the prisoner is not entitled to relief. Frazier v. United States, 18 F.3d 778 (9th Cir. 1994). As discussed above, the petitioner's allegations that the court lacked jurisdiction over his claim are erroneous. He cannot establish a claim for ineffective assistance of counsel because he has failed to show any prejudice that resulted from the failure to appeal the jurisdiction issue. Thus, no evidentiary hearing is required in this case.

In Forma Pauperis / Appointment of Counsel

The petitioner filed an application to proceed in forma pauperis with his section 2255 motion. A motion under section 2255 is not a civil action, so no filing fee is required. United States v. Simmonds, 111 F.3d 737, 741 (10th Cir. 1997). Additionally, when relief is denied without an evidentiary hearing in a section 2255 proceeding, there is no constitutional or statutory right to appointment of counsel. Roney v. United States, 205 F.3d 1061 (8th Cir. 2000). As a result, both of these applications are denied.

IT IS THEREFORE ORDERED:

1. The magistrate's report and recommendation, Filing No. 32, is adopted in its entirety;

2. The petitioner's objections, Filing No. 33, to the magistrate's report and recommendation are overruled;

3. The petitioner's motion to proceed in forma pauperis, Filing No. 27, is denied;

4. The petitioner's motion to vacate judgment and sentence pursuant to 28 U.S.C. § 2255, Filing No. 28, is denied; and

5. The petitioner's motion for appointment of counsel, Filing No. 30, is denied.