United States v. Harris, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
NOV 1 1999
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 98-5191
(D.C. No. 97-CV-416)
(N.D. Okla.)
v.
BILLY GENE HARRIS,
Defendant-Appellant.
ORDER AND JUDGMENT
Before ANDERSON and KELLY , Circuit Judges, and

District Judge.
BROWN , ** Senior
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Honorable Wesley E. Brown, Senior District Judge, United States District

Court for the District of Kansas, sitting by designation.
**
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant seeks review of a district court order denying his 28 U.S.C.
2255 motion to vacate his first-degree murder conviction. The district court
also denied a certificate of appealability under 28 U.S.C. 2253(c). For
substantially the reasons stated at length in the district courts order denying
relief, we likewise conclude that defendant has failed to make a substantial
showing of the denial of a constitutional right, and therefore deny his request for
a certificate of appealability and dismiss the appeal.
Defendant was convicted of murdering an Osage Indian couple in their
home during the course of an armed robbery. His conviction was upheld against
several challenges on direct appeal, though an order for restitution was vacated
and remanded for reconsideration.
See United States v. Harris , No. 90-5028,
1992 WL 33210 (10th Cir. Feb. 21, 1992). The restitution order was reimposed
and then affirmed on a subsequent appeal.
See United States v. Harris , 7 F.3d
1537 (10th Cir. 1993). Thereafter, defendant filed a motion for a free transcript
to assist him in securing relief under 2255. The district court denied the motion
because defendant failed to identify any non-frivolous 2255 claims for which a
transcript was needed. This court affirmed.
See United States v. Harris ,
No. 94-5209, 1995 WL 394151 (10th Cir. July 5, 1995). Defendant followed with
-2-
a motion under Fed. R. Crim. P. 41(e) for return of property seized at his
residence pursuant to a warrant executed on the day of his arrest. The district
court found the property in question had been stolen from the murder victims and
denied the motion. This court summarily affirmed.
See United States v. Harris ,
No. 96-5067, 1996 WL 494416 (10th Cir. Aug. 27, 1996).

Finally, defendant filed the instant 2255 motion asserting the following
grounds for relief:
1.
The federal murder statute, 18 U.S.C. 1111, did not apply to

defendants conduct outside the special maritime and territorial
jurisdiction of the United States;
2.
The Indian country offense statute, 18 U.S.C. 1153, did not apply
to the conduct of defendant, a non-Indian;
3.
Defendants charged offense did not take place on an Indian

Reservation;
4.
The location of defendants offense fell outside the constitutional

jurisdiction of the United States;
5.
The district court lacked jurisdiction over defendants offense;
6.
The legislative powers of Congress do not reach defendants offense;
7.
Defendants offense did not take place on allotment land or, if it did,
that did not bring the offense within federal territorial jurisdiction;
8.
The search of defendants home and his subsequent arrest were

illegal;
9.
There was no probable cause to search or arrest;
10.
The indictment was defective in that it was based on illegally

-3-
procured evidence and alleged as crimes statutory violations which

do not apply to defendant and over which the United States Courts
lacked jurisdiction;
11.
Defendant was detained, without probable cause and based on

illegally obtained evidence, in constructive federal custody by the
Osage County Sheriff for 27 days without arraignment;
12.
Trial counsel afforded ineffective assistance.
13.
Appellate counsel afforded ineffective assistance.
See R Vol. III docs. 184 & 185. After determining that an evidentiary hearing
was unnecessary, the district court issued a thorough order rejecting all of the
claims asserted by defendant.
See id. doc. 198.
The district court grouped together the first seven issues, all of which
asserted jurisdictional deficiencies. As to the first two, the district court noted
the statutory basis for conviction (with 18 U.S.C. 1152 substituted for 1153)
had already been upheld on direct appeal.
See Harris , 1992 WL 33210, at **3.
This courts decision on appeal had also confirmed the requisite location of the
offense: The government established at trial that the alleged murders occurred
within Indian country as required under 1152.
Id. Defendants collateral
attack on this latter determination was properly rejected by the district court based
on BIA (Osage Agency) realty officer Royal E. Thorntons affidavit, which
recounts the pertinent events in the chain of title and concludes that the land is
and has been since its original allotment a restricted Indian title (Indian Country),
-4-
one which has never been extinguished. R. Vol. III, doc. 195 attachment;
see
United States v. Ramsey , 271 U.S. 467, 468, 470-72 (1926) (applying predecessor
of 1152 to murder on restricted Osage allotment);
United States v. Burnett , 777
F.2d 593, 595-96 (10th Cir. 1985) (recognizing continuing vitality of

restricted Osage allotments).
Ramsey for
See generally Enlow v. Moore , 134 F.3d 993, 995
n.2 (10th Cir. 1998) (Restricted allotments of Indian land constitute Indian
country.). Finally, the district court correctly held defendants constitutional
objections to the exercise of federal jurisdiction over Indian lands were meritless
in light of long-settled precedent.
See Donnelly v. United States , 228 U.S. 243,
271-72 (1913); United States v. Kagama , 118 U.S. 375, 383-84 (1886));
United States v. Houser , 130 F.3d 867, 872-73 (9th Cir. 1997),
see also
cert. denied, 118
S. Ct. 2074 (1998).

As for the non-jurisdictional search/seizure/arrest issues, the district court
noted these had not been raised on direct appeal and, thus, were procedurally
barred absent a showing of cause and prejudice or manifest injustice.
States v. Frady , 456 U.S. 152, 164-68 (1982);
See United
United States v. Cook , 45 F.3d 388,
392 (10th Cir. 1995). In light of defendants separate claim of ineffective

assistance of appellate counsel based in part on the omission of these issues from
his direct appeal, the district court considered whether they possessed such
evident merit that their omission would have constituted ineffective assistance,
-5-
excusing the procedural default.
See Cook , 45 F.3d at 392. The court concluded
that they did not and were, therefore, barred. We agree. Defendants conclusory
assertions do not demonstrate that any issue belatedly raised in this 2255
proceeding would have been the dead-bang winner required to excuse the
procedural default on direct appeal.
Id. at 394-95.
Finally, the district court addressed and rejected, as stand-alone claims,

defendants allegations of ineffective assistance of trial and appellate counsel.
Again, we agree. Numerous motions in the district court file belie defendants
broad complaints about counsel inaction and, for the rest, defendants conclusory
assertions fall far short of satisfying the controlling performance-and-prejudice
test set out in Strickland v. Washington , 466 U.S. 668, 687 (1984).
Defendants application for a certificate of appealability is DENIED, and
the appeal is DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.

Circuit Judge
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United States v. Harris, 10th Cir. (1999)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT

Before ANDERSON and KELLY , Circuit Judges, and

Honorable Wesley E. Brown, Senior District Judge, United States District

See United States v. Harris , No. 90-5028,

See United States v. Harris , 7 F.3d

See United States v. Harris ,

See United States v. Harris ,

No. 96-5067, 1996 WL 494416 (10th Cir. Aug. 27, 1996).

The federal murder statute, 18 U.S.C. 1111, did not apply to

Defendants charged offense did not take place on an Indian

The location of defendants offense fell outside the constitutional

The district court lacked jurisdiction over defendants offense;

The legislative powers of Congress do not reach defendants offense;

The search of defendants home and his subsequent arrest were

There was no probable cause to search or arrest;

The indictment was defective in that it was based on illegally

procured evidence and alleged as crimes statutory violations which

Defendant was detained, without probable cause and based on

Trial counsel afforded ineffective assistance.

Appellate counsel afforded ineffective assistance.

See id. doc. 198.

See Harris , 1992 WL 33210, at **3.

Id. Defendants collateral

United States v. Burnett , 777

F.2d 593, 595-96 (10th Cir. 1985) (recognizing continuing vitality of

See generally Enlow v. Moore , 134 F.3d 993, 995

See Donnelly v. United States , 228 U.S. 243,

cert. denied, 118

S. Ct. 2074 (1998).

United States v. Cook , 45 F.3d 388,

392 (10th Cir. 1995). In light of defendants separate claim of ineffective

excusing the procedural default.

See Cook , 45 F.3d at 392. The court concluded

Finally, the district court addressed and rejected, as stand-alone claims,

Entered for the Court

Paul J. Kelly, Jr.

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