O'BRIEN, Circuit Judge.
Brian Keith Tony, a federal prisoner proceeding pro se
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.
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.
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.
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).
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
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."
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,
The Indian Country nexus, like other similar nexuses in the context of
To obtain a conviction, the government was required to plead and prove the crime occurred in Indian Country. Failure to do so would not remove subject-matter jurisdiction. See id. ("Elements of the crime of arson in Indian country ... are jurisdictional only in the sense that in the absence of those elements, no federal crime exists."); United States v. Gardner, 244 F.3d 784 (10th Cir.2001) (whether an individual is an "Indian" or a "non-Indian" is not an essential element of jurisdiction but rather an element of the crime charged); United States v. Pemberton, 405 F.3d 656, 659 (8th Cir.2005) (insufficient factual basis to conclude defendant was an Indian under § 1153(a) did not eliminate subject-matter jurisdiction); White Horse, 316 F.3d at 772 (dispute over interstate nexus); see also United States v. Tush, 287 F.3d 1294, 1297 (10th Cir.2002) (the required nexus with interstate commerce required by 18 U.S.C. § 844(i) is an "essential element of the crime" not "a jurisdictional requirement"); Hugi v. United States, 164 F.3d 378, 380-81 (7th Cir.1999) ("A link to interstate commerce may be essential to Congress's substantive authority, but the existence of regulatory power differs from the subject-matter jurisdiction of the courts.") (citation omitted). Tony's claim is really an insufficiency of the evidence argument and was waived when he failed to raise it on direct appeal. He presents no cause excusing the omission other than his belated ineffective assistance of counsel claim.
Even if Tony's argument is not insufficiency of the evidence, but rather that the indictment failed to state a crime, waiver still applies. Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure provides: "[A]t any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense." (Emphasis added.) In this Circuit a case is "pending" during an appeal. See United States v. Sinks, 473 F.3d 1315, 1321 (10th Cir.2007). But if Tony is asserting the indictment failed to state an offense, it is untimely when raised for the first time in a § 2255 motion. See United States v. Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir.2005) (rejecting, without considering merits, a Rule 12(b)(3)(B) post-judgment challenge to the indictment within a § 2255 motion because it was untimely under Fed. R. Cr. P. Rule 12(e)); see also Barreto-Barreto v. United States, 551 F.3d 95, 100 (1st Cir.2008) (claim that information failed to state an offense fails in § 2255 motion because case is not "pending" after conviction which was not appealed).
An Indian defendant is not subject to double jeopardy when the federal government tries him on a federal offense after he is tried in a tribal prosecution on a similar tribal offense arising out of the same conduct. United States v. Lara, 541 U.S. 193, 210, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). Regardless, Tony argues his federal prosecution, which followed an unsuccessful prosecution in tribal court, amounts to a violation of the Double Jeopardy Clause because the Indian authorities turned him over to federal authorities for federal prosecution. We need not consider this argument. Tony neither raised this issue during his trial proceedings, nor on direct appeal. "[O]nce a defendant has been convicted, his final judgment commands respect and a § 2255 action cannot supplant an appeal. ..." United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987) (quotations omitted).
The district court erred in reaching the merits of Tony's claims — the jurisdictional arguments are without merit and the other claims are procedurally barred. But Tony was not harmed — the district court afforded him too much, not too little. He has failed to make a substantial showing of the denial of a constitutional right. We
Tony's belated addition of the ineffective assistance of counsel claim exemplifies the ever-evolving nature of his claims.