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United States v. Harris, 10th Cir. (1999)
United States v. Harris, 10th Cir. (1999)
NOV 1 1999
PATRICK FISHER
Clerk
v.
BILLY GENE HARRIS,
Defendant-Appellant.
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This order and judgment is not binding precedent, except under the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.
**
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.
1992 WL 33210 (10th Cir. Feb. 21, 1992). The restitution order was reimposed
and then affirmed on a subsequent appeal.
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.
No. 94-5209, 1995 WL 394151 (10th Cir. July 5, 1995). Defendant followed with
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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.
2.
The Indian country offense statute, 18 U.S.C. 1153, did not apply
to the conduct of defendant, a non-Indian;
3.
4.
5.
6.
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.
9.
10.
12.
13.
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.
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.
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.
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),
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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);
Ramsey for
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.
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
See United
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.
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