United States District Court, D. Montana, Great Falls Division
ORDER DENYING SOME CLAIMS
Morris United States District Court Judge
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.
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.
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.
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.
parties stipulated before trial that “Adrien John
Matuck is an Indian person.” Stipulation (Doc. 79) at 2
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).
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.
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.
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.
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).
Claims and Analysis
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.
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
Ex Post Facto Violation
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.
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.
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.
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.
Sufficient Evidence and Ineffective Assistance of
liberal construction,  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.
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).
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.
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
tribal enrollment certificate 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.
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
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
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.
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.
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.
claim is denied.