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United States v. Muskrat

United States District Court, D. Montana, Great Falls Division

January 11, 2014

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID ELMER MUSKRAT, Defendant/Movant.

ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

DANA L. CHRISTENSEN, Chief District Judge.

On February 3, 2014, Defendant/Movant David Muskrat timely filed a motion under 28 U.S.C. § 2255. Muskrat is a federal prisoner proceeding pro se.

A § 2255 motion is subject to preliminary review by the Court to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b) of the Rules Governing § 2255 Proceedings.

On September 26, 2013, Muskrat was sentenced to serve 210 months in prison, to be followed by a four-year term of supervised release, based on his plea of guilty to second-degree murder.

Muskrat now contends that the two crimes he was charged with, first-degree and second-degree murder, are not listed in the Major Crimes Act, 18 U.S.C. § 1153, so that the Court lacked jurisdiction over his case. He also contends that the United States "failed to allege in the indictment [s] and prove beyond a reasonable doubt that the movant is an Indian under 18 USC § 1153 and that his blood line is derived from a federally recognized tribe." Mot. § 2255 (Doc. 56) at 2 (brackets in original).

I. Claims and Analysis

A. Waiver of § 2255 Motion in Plea Agreement

Muskrat waived his right to file a motion under 28 U.S.C. § 2255. Plea Agreement (Doc. 38) at 8 ¶ 8(a) para. 2. The waiver does not and cannot apply to claims of ineffective assistance of counsel. See Mot. § 2255 (Doc. 56) at 4; see also Washington v. Lampert, 422 F.3d 864, 869-71 (9th Cir. 2005) (relying on cases under § 2255 to hold state prisoner's waiver of federal habeas relief under § 2254 unenforceable with respect to ineffective assistance claim going to voluntariness of waiver). If, for example, this Court indeed lacked jurisdiction over the case, counsel would undoubtedly have performed unreasonably to the extent he advised Muskrat to plead guilty. Consequently, the Court will consider Muskrat's claims within the rubric of his claim of ineffective assistance of counsel.

B. Ineffective Assistance Claims

Claims of ineffective assistance of trial counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). Muskrat must show both that counsel's performance fell below an objective standard of reasonableness, id. at 687-88, and that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694. "[T]here is no reason... to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

1. Major Crimes Act

Jurisdiction in Muskrat's case was predicated on the Major Crimes Act, 18 U.S.C. § 1153(a). See Indictment (Doc. 1) at 2-3. The Act provides:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, ... within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. § 1153(a). First-degree murder and second-degree murder are both murder. 18 U.S.C. § 1111 ("Murder"). Neither prong of the ...


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