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United States v. Matuck

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

April 17, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ADRIEN JOHN MATUCK, Defendant/Movant.

          ORDER DENYING SOME CLAIMS

          Brian Morris United States District Court Judge

         This case comes before the Court on Defendant/Movant Adrien John Matuck's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Matuck is a federal prisoner proceeding pro se.

         I. Preliminary Review

         Before the United States answers the motion, the Court must decide 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), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). The Court possesses a duty to “eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         A grand jury indicted Matuck on one count of first-degree murder, and, in the alternative, one count of second-degree murder, both violations of 18 U.S.C. § 1111(a). The indictment alleged that Matuck killed Raymond Brown on or about August 7, 2011, and asserted jurisdiction under the Major Crimes Act, 18 U.S.C. § 1153(a). See Indictment (Doc. 7) at 22.

         Matuck filed motions to suppress his August 7, 2011, statement to law enforcement officers and to exclude evidence of his Marine Corps training, noticed under Federal Rule of Evidence 404(b). The Court denied both motions. See Notice of Other Acts Evid. (Doc. 27); Mots. (Docs. 32, 34); Order (Doc. 46).

         The parties stipulated before trial that “Adrien John Matuck is an Indian person.” Stipulation (Doc. 79) at 2 ¶ 1.

         Trial commenced on September 4, 2012. After two days of testimony, the jury deliberated for four hours, including an overnight recess. The jury convicted Matuck of first-degree murder. Minutes (Docs. 89, 91, 92); Verdict (Doc. 100).

         Gallagher and Arvanetes withdrew from representation after trial. Palmer Hoovestal was appointed in their place. Hoovestal filed a motion for new trial based on Matuck's relation of his own account of Brown's death. Hoovestal's written offer of proof stated that “Matuck did not disclose these events to his previous counsel or to law enforcement out of fear of retaliation by John Whiteman.” Whiteman testified as a witness for the government. See Br. in Supp. (Doc. 113) at 4. The Court denied the motion because the evidence set forth in the offer of proof was not “newly discovered.” See Order (Doc. 124) at 2.

         The Court sentenced Matuck to life in prison. If Matuck is released, he will serve a five-year term of supervised release. See 18 U.S.C. § 1111(b)(1); Judgment (Doc. 116) at 2-3.

         Matuck appealed the denial of his motion for new trial and the sufficiency of the evidence proving his Indian status. The Ninth Circuit rejected his claims and affirmed his conviction on March 16, 2016. See Mem. (Doc. 142) at 2-3, United States v. Matuck, No. 13-30004 (9th Cir. Mar. 16, 2016).

         Matuck's conviction became final on June 14, 2016. He timely filed his § 2255 motion on June 13, 2017. See 28 U.S.C. § 2255(f)(1); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); see also Mot. § 2255 (Doc. 146) at 6 Decl. ¶ C; Houston v. Lack, 487 U.S. 266, 276 (1988).

         III. Claims and Analysis

         All of Matuck's claims allege, at least in part, that trial and/or appellate counsel provided ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984) governs the claims. See also Smith v. Robbins, 528 U.S. 259, 285 (2000). At this stage of the proceedings, Matuck must allege facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness, id. at 687-88, and (2) 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.

         A. Indian Status

         The indictment invoked jurisdiction under the Indian Major Crimes Act, 18 U.S.C. § 1153(a). Section 1153 confers federal jurisdiction over certain offenses, including first- and second-degree murder, committed in “Indian country, ” see Id. § 1151, by “[a]ny Indian, ” id. § 1153(a). The United States had to prove, beyond reasonable doubt, that Matuck was an Indian. See United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009).

         1. Ex Post Facto Violation

         Matuck claims he was convicted under an ex post facto application of controlling law and that appellate counsel provided ineffective assistance of counsel when he failed to present this argument. See Mot. § 2255 (Doc. 146) at 4 ¶¶ 5A, 5B; id. at 8-13, 32. In affirming Matuck's conviction, the Ninth Circuit applied United States v. Zepeda, 792 F.3d 1103, 1115-16 (9th Cir. 2015) (en banc). See Mem. (Doc. 142) at 2, United States v. Matuck, No. 13-30004 (9th Cir. Mar. 16, 2016). The Ninth Circuit decided Zepeda nearly four years after Brown's murder.

         The Ex Post Facto Clause, see U.S. Const. art. I, § 9, cl. 3, prohibits four types of statutory laws or rules, see Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (Chase, J.)). The Ex Post Facto Clause applies to Congress, not to the courts. A new judicial decision generally applies to acts committed before its issuance unless application of the new decision would deprive, in effect, the defendant of fair notice of what conduct is prohibited or is required of him by “attaching criminal penalties to what previously had been innocent conduct.” See, e.g., Bouie v. City of Columbia, 378 U.S. 347, 355 (1964); Douglas v. Buder, 412 U.S. 430, 432 (1973). Nothing protects Matuck against prejudice from judicial decisions made after he committed the crime. See generally Rogers, 532 U.S. at 460-62.

         Matuck claims the Ninth Circuit's decision in Zepeda “alter[ed] the legal rules of evidence” and allowed conviction based on “less, or different, testimony, than the law required at the time of the commission of the offense.” Rogers, 532 U.S. at 456 (quoting Calder, 3 U.S. at 390). Zepeda in fact, did make it easier for the United States to establish federal jurisdiction under 18 U.S.C. § 1153. The new interpretation no longer required the government to prove a defendant's Indian blood came from a federally recognized tribe. See 792 F.3d at 1113. Courts possess “substantial leeway, ” however, to make such decisions and to apply them to past conduct. See Rogers, 532 U.S. at 461-62.

         The Ninth Circuit's decision in Zepeda altered the legal elements of Indian status and the evidence appropriate to establish it. This revision did not deprive Matuck of due process. He had fair notice, before he acted, that intentionally killing someone would subject him to criminal prosecution and punishment. Matuck's ex post facto claim is denied.

         2. Sufficient Evidence and Ineffective Assistance of Counsel

         With liberal construction, [1] Matuck can also be understood to allege that the United States failed to prove that he had Indian blood traceable to a federally recognized tribe, and that counsel provided ineffective assistance of counsel for failing to argue. See, e.g., Mot. § 2255 at 10, 12. This claim depends on the law in effect at the time of trial-the law Matuck believes was more favorable to him. See Strickland, 466 U.S. at 689 (requiring evaluation of counsel's decisions “from counsel's perspective at the time”). The law does not support this sort of claim. See Lockhart v. Fretwell, 506 U.S. 364, 370-72 (1993). It further appears that the outcome of his case would not have been different even if counsel had raised this issue on appeal.

         To establish federal jurisdiction over Matuck's case, the United States had to prove at trial that Matuck was an Indian person. See 4 Trial Tr. (Doc. 128) at 550:17, 552:12; see also Def. Proposed Jury Instrs. (Doc. 69-1) at 1, 3, 8. No statute defines who counts as an “Indian person.” Courts have developed the criteria. At the time of Matuck's trial, the Ninth Circuit's “Indian person” test required the United States to prove the following elements:

(1) the defendant had a quantum of Indian blood traceable to a federally recognized tribe; and
(2) the defendant was a member of, or was affiliated with, a federally recognized tribe.

See United States v. Maggi, 598 F.3d 1073, 1080-81 (9th Cir. 2010); see also United States v. Bruce, 394 F.3d 1215, 1223-24 (9th Cir. 2005).

         Before trial, defense counsel and the United States stipulated that “Adrien John Matuck is an Indian person.” Stipulation (Doc. 79) at 2 ¶ 1; see also 1 Trial Tr. (Doc. 125) at 3:7-9 (showing Matuck was present); id. at 3:22. Matuck's stipulation to the jurisdictional element relieved the United States of the need to introduce evidence on either prong of the Maggi test. See, e.g., 1 Trial Tr. (Doc. 125) at 68:9-11, 71:19-23; 4 Trial Tr. at 548:22-25. The United States relied on the stipulation in closing argument. See 4 Trial Tr. at 574:11-13.

         Counsel frequently stipulate to facts, even jurisdictional facts, when no realistic hope exists of contesting them. See, e.g., United States v. Benedict, 855 F.3d 880, 887-88 (8th Cir. 2017); United States v. Crowe, 735 F.3d 1229, 1243-45 (10th Cir. 2013); United States v. Celaj, 649 F.3d 162, 168-70 (2d Cir. 2011); United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996); see also United States v. Sherrod, 445 F.3d 980, 981-82 (7th Cir. 2006). To prevail here, Matuck must show he could have contested facts relevant to the first prong of the Maggi test.

         Matuck's tribal enrollment certificate[2] showed that Matuck was 13/16 Hualapai and 1/8 Havasupai. See Appellant Br. Gov't Ex. 1 (Doc. 10-2) at 1, United States v. Matuck, No. 13-30004 (9th Cir. filed June 4, 2013); compare, e.g., United States v. Seymour, 684 Fed.Appx. 662, 663 (9th Cir. 2017) (unpublished mem. disp.) (holding that certificate showed tribal membership but “says nothing about Seymour's Indian blood” and so did not meet first prong of test), cited in Mot. § 2255 at 9, 12.

         The Federal Register established the Hualapai Tribe's federal recognition as of the date of Brown's murder. See 75 Fed. Reg. 60810, 60811 (Oct. 1, 2010); see also 77 Fed. Reg. 47868, 47870 (Aug. 10, 2012). The certificate proved both that Matuck had Indian blood and that it came from the Hualapai Tribe. Absent a stipulation, the United States would have been required to call a witness to authenticate the certificate and obtain either testimony or a jury instruction regarding the Hualapai tribe's federal recognition. It was not unreasonable for counsel to enter into a stipulation relieving the United States of its burden of proof on the first prong of the Maggi test, when no realistic prospect existed that the proof would have failed.

         The distinction between Matuck's case and Zepeda and Maggi is greater than he appears to realize. The defendant in Zepeda claimed that a difference existed between “the Tohono O'Odham Nation of Arizona, ” which was recognized by the government of the United States, and the “Tohono O'Odham” bloodline listed on his tribal enrollment certificate. He averred that “a substantial portion” of people of Tohono O'Odham blood had “always resided in the Sonoran Desert of northwest Mexico.” Zepeda, 738 F.3d 201, 212 (9th Cir. 2013) (quoting defendant's brief) (emphases added). In other words, Zepeda's bloodline could have come from a tribe in Mexico, not the tribe in Arizona recognized by the United States.

         Defendant Mann's tribal enrollment certificate in Maggi showed that he was 10/64 Chippewa and 11/64 other Indian blood. See Maggi, 598 F.3d at 1080. A blood quantum of 10/64 Chippewa could have supported Indian status. Mann descended from the Little Shell Tribe of the Chippewa Cree, however, which has not been federally recognized, rather than from the federally recognized Chippewa Cree Indians of the Rocky Boy's Reservation. See Id. at 1076.

         In both Zepeda and Maggi, some evidence suggested that the defendant's bloodline did not come from a federally recognized tribe. This issue forced the Ninth Circuit to decide whether the United States must prove that the defendant's bloodline came from a federally recognized tribe. Eventually, the en banc court decided federal recognition need not be proved under the first prong of the “Indian person” test. See Zepeda, 792 F.3d at 1107. This issue never mattered to Matuck's case. He pointed to no group of Hualapai people who are not connected to the “Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona.” He also has failed to claim that his bloodline originates with the group that is not federally recognized.

         The United States would have been able to prove Matuck was an Indian person even under the more demanding Maggi test. Counsel did not provide ineffective assistance of counsel when he stipulated to Matuck's Indian status.

         This claim is denied.

         B. Ineffective ...


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