RONALD D. RED BEAR, PETITIONER V. UNITED STATES OF AMERICA No. 90-5807 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. B) is unreported, but the judgment is noted at 909 F.2d 511 (Table). JURISDICTION The judgment of the court of appeals was entered on May 15, 1990. A petition for rehearing was denied on July 11, 1990. The petition for a writ of certiorari was filed on September 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was properly prosecuted under the Major Crimes Act, 18 U.S.C. 1153, even though he was a juvenile at the time of the offense. 2. Whether petitioner's rights under the Double Jeopardy Clause were violated when he was tried as an adult after a proceeding that resulted in his transfer from the federal juvenile justice system. 3. Whether petitioner's guilty plea was voluntary. 4. Whether petitioner received ineffective assistance of counsel because his trial counsel failed to raise any of the issues petitioner subsequently raised in his motion to vacate his sentence under 28 U.S.C. 2255. 5. Whether the district court abused its discretion in denying petitioner's motion for post-conviction relief without a hearing. STATEMENT 1. On August 1, 1978, petitioner, then 17 years old, was seen firing a high-powered rifle at passing automobiles on a road in the Standing Rock Sioux Indian Reservation near Fort Yates, North Dakota. /1/ Petitioner killed one driver and injured a passenger in another car. He also fired at Bureau of Indian Affairs officers who arrived at the scene. When the officers returned fire, petitioner surrendered. Gov't C.A. Br. 3-6. An information was filed on August 2, 1978, in the United States District Court for the District of North Dakota, charging petitioner with committing acts of juvenile delinquency under the provisions of the federal juvenile delinquency statutes, 18 U.S.C. 5031-5042. /2/ On August 16, 1978, the district court ordered petitioner transferred from the juvenile system for prosecution as an adult. See 18 U.S.C. 5032. A superseding information was filed charging petitioner with one count of first degree murder, in violation of 18 U.S.C. 1111 and 1153; one count of assault with intent to kill, in violation of 18 U.S.C. 113(a) and 1153; and four counts of assault on a federal officer with a deadly weapon, in violation of 18 U.S.C. 111 and 1114. Petitioner pleaded guilty to a reduced charge of second degree murder on the first count of the information and to all of the remaining counts as charged. He was sentenced to 40 years' imprisonment. Gov't C.A. Br. 1-2. 2. On August 7, 1989, more than ten years after he was sentenced, petitioner filed a motion for post-conviction relief under 28 U.S.C. 2255. The district court denied his motion without a hearing, concluding that it was "frivolous." Pet. App. A. 3. The court of appeals affirmed. Pet. App. B1-B2. In the court of appeals, petitioner raised a host of claims. He argued that (1) he was not brought before the magistrate "forthwith" or "within a reasonable time," in violation of 18 U.S.C. 5033; (2) he was denied due process in that he was not properly advised of his rights as a juvenile nor were his parents or guardians properly notified, in violation of 18 U.S.C. 5033; (3) he was denied his right to a speedy trial under 18 U.S.C. 5036 and 3161; (4) his transfer from juvenile to adult status was based on inadequate findings; (5) jeopardy attached to the juvenile proceedings when there was a finding that he would not benefit from the Federal Youth Corrections Act, 18 U.S.C. 5010 (now repealed), and thus he was tried in violation of the Double Jeopardy Clause; (6) the district court lacked jurisdiction because the State of North Dakota was not first notified of the federal proceedings and given the opportunity to assume jurisdiction over the case; (7) the district court lacked jurisdiction because the motion to transfer the case from juvenile court contained an unauthorized certification; (8) the district court lacked jurisdiction because the motion to transfer was untimely; (9) petitioner was denied effective assistance of counsel by his counsel's failure to advise him of his rights as a juvenile and counsel's failure to object to the alleged errors listed above; and (10) he was denied due process when, as a juvenile Indian, he was charged under the Major Crimes Act, 18 U.S.C. 1153. Pet. App. B1-B2. The court of appeals ruled that petitioner's first four claims, which did not relate to jurisdiction, were waived by his voluntary guilty plea. It concluded that the remaining claims were "without merit." Pet. App. B2. ARGUMENT 1. Petitioner's principal contention (Pet. 1-10) is that the Major Crimes Act, 18 U.S.C. 1153, which provides for federal jurisdiction over certain crimes committed by Indians against other Indians on Indian lands, does not apply to offenses committed by juveniles. /3/ In support of that claim, petitioner argues that language in the Treaty of 1868 with the Sioux Indians referring to "bad men among the Indians" means that Congress intended the statute to apply only to adult offenders. /4/ Treaty with the Sioux Indians, Apr. 29, 1868, art. I, 15 Stat. 635, 635. The court of appeals correctly rejected that argument. By its terms, the Major Crimes Act applies to "(a)ny Indian," and petitioner points to nothing in the language or history of the statute that would indicate an intention to exclude from federal jurisdiction offenses committed by juvenile Indians. /5/ Petitioner provides no support for his assertion that the reference in the Treaty of 1869 to "bad men" was intended to express a limitation to adult males; the reference to "men" appears clearly to have been merely a colloquial way of referring to "persons." Moreover, petitioner makes no showing that a 17-year-old would not have been considered a "man" by the Tribe at the time it entered into the Treaty. In any event, even if petitioner could show that the reference in the 1868 treaty to "bad men" was intended to limit the scope of that agreement, the treaty could not restrict Congress's power to enact a statute extending federal jurisdiction to offenses committed by all Indians. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 (1977); Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903) ("as with treaties made with foreign nations, * * * the legislative power (may) pass laws in conflict with treaties made with the Indians"); accord Thomas v. Gay, 169 U.S. 264, 271 (1898); The Chinese Exclusion Case, 130 U.S. 581, 600-602 (1889); The Head Money Cases, 112 U.S. 580, 597-599 (1884); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870). /6/ 2. Petitioner contends (Pet. 21-23) that proceedings on the superseding information violated the Double Jeopardy Clause of the Fifth Amendment, because jeopardy had already attached in the juvenile proceedings when the district court allegedly found that he would not benefit from treatment under the Federal Youth Corrections Act, 18 U.S.C. 5010. /7/ The record, however, fails to support petitioner's claim that the district court made such a finding. /8/ Petitioner is probably referring to the district court's findings supporting its order transferring petitioner from juvenile to adult prosecution. Because that determination was not an adjudication of a criminal violation, jeopardy did not attach during the juvenile proceedings. See Breed v. Jones, 421 U.S. 519, 529-531 (1975) (juvenile is placed in jeopardy "at a proceeding whose object is to determine whether he has committed acts that violate a criminal law"); Hartung v. Omodt, 687 F.2d 1230, 1233 (8th Cir. 1982) (jeopardy does not attach in hearing to determine whether juvenile should be prosecuted as an adult); Guam v. Fejeran, 687 F.2d 302, 303-304 (9th Cir. 1982) (same), cert. denied, 460 U.S. 1045 (1983). 3. Petitioner contends (Pet. 24-28) that his guilty plea was involuntary, because a court-ordered psychiatric examination was conducted only after petitioner had signed a "guilty plea waiver" in the district judge's chambers. That contention is incorrect. The record shows that the psychiatric examination was performed before petitioner entered his guilty plea on November 7, 1978. /9/ Gov't C.A. Br. 1-2. 4. Petitioner contends (Pet. 28-30) that his trial counsel's failure to raise any of the claims asserted in the Section 2255 motion denied him effective assistance of counsel. /10/ To prevail on this claim, petitioner must show that his attorney's performance "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-688 (1984), and "that there is a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Because petitioner's contentions are meritless, his counsel could not have acted unreasonably in failing to raise them. Further, petitioner could not possibly show that if counsel had raised the alleged errors in the district court, petitioner would have gone to trial and would have prevailed on those claims of error either in the district court or on appeal. The claims are insubstantial and would have been doomed to failure if petitioner had gone to trial in order to preserve them. Moreover, the evidence of petitioner's guilt was overwhelming. By pleading guilty, petitioner was able to avoid prosecution and almost certain conviction on a first degree murder charge. In sum, a decision to go to trial in order to preserve the legal claims that petitioner has now sought to raise would have been a great disservice to petitioner's cause. 5. Finally, petitioner contends (Pet. 30) that the district court erred in denying his Section 2255 motion without conducting a hearing. Petitioner's motion alleged constitutional defects in the earlier proceedings before the very same district judge who presided over his juvenile proceedings and the entry of his guilty plea. The judge therefore could properly rely on his memory of the relevant events in determining that petitioner's claims were frivolous. See Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("the judge's recollection of the events at issue may enable him summarily to dismiss a Section 2255 motion, even though he could not summarily dispose of a habeas corpus petition challenging a state conviction but presenting identical allegations"). Under these circumstances, the court of appeals correctly concluded that petitioner failed to show that the district court abused its discretion in declining to hold an evidentiary hearing. /11/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney DECEMBER 1990 /1/ Petitioner is an enrolled member of the Standing Rock Sioux Tribe. Gov't C.A. Br. 3. /2/ As required by 18 U.S.C. 5032, the United States Attorney for the District of North Dakota certified that the state courts did not have jurisdiction with respect to the alleged acts of juvenile delinquency. Gov't C.A. Br. 7. /3/ 18 U.S.C. 1153 provides, in pertinent part: Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, * * * assault with intent to commit murder, assault with a dangerous weapon, * * * 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. /4/ In the 1868 treaty, the United States and the Sioux Indians agreed that: If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws * * *. Treaty with the Sioux Indians, Apr. 29, 1868, art. I, 15 Stat. 635, 635. /5/ The Major Crimes Act was enacted in response to the decision in Ex parte Crow Dog, 109 U.S. 556 (1883), in which the Court held that in the absence of statutory authorization, the federal courts lacked jurisdiction to try an Indian defendant for the murder of another Indian in Indian country. Id. at 572. The "prompt congressional response" to the Crow Dog decision "reflected a view that tribal remedies were either nonexistent or incompatible with principles that Congress though should be controlling." Keeble v. United States, 412 U.S. 205, 209-211 (1973). Because Crow Dog was superseded by the enactment of the Major Crimes Act, petitioner's reliance on Crow Dog is clearly misplaced. /6/ In a related argument, petitioner contends (Pet. 10-17) that the Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. 5031-5042, under which he was originally charged, cannot properly be applied to juvenile Indians. Petitioner again relies on the language of the 1868 treaty and on Crow Dog, and for the reasons stated above this claim is incorrect. See United States v. Allen, 574 F.2d 435, 437-438 (8th Cir. 1978) (federal juvenile delinquency statute applies to prosecution of juvenile Indians for crimes subject to federal jurisdiction under the Major Crimes Act). Petitioner also asserts (Pet. 5-6, 9-10) that the Major Crimes Act is based upon an impermissible racial classification and therefore violates the Equal Protection Clause. This Court rejected an identical claim in United States v. Antelope, 430 U.S. 641, 645-647 (1977). /7/ Section 5010 has since been repealed. See Pub. L. No. 98-473, Section 218(a)(8), 98 Stat. 2027 (1984). /8/ There is also no support in the record for petitioner's claim (Pet. 21) that the district court "found the petitioner to be a juvenile delinquent." /9/ The examiner concluded that petitioner was competent to stand trial and that there was no indication that petitioner was not responsible for his actions at the time of the charged offenses. Gov't C.A. Br. 1-2. /10/ Petitioner also claims (Pet. 28-29) that he was deprived of effective assistance of counsel because his court-appointed guardian ad litem was absent from the proceedings before the district court. Petitioner does not suggest any reason why the presence of his counsel was not sufficient to protect his rights and does not identify any assistance the guardian ad litem could have provided had he been present. /11/ Petitioner also contends (Pet. 18-21) that he was denied due process during the juvenile proceedings in that he was not advised of his rights as a juvenile, his parents were not notified of the charges against him, and he was not brought before a magistrate within a reasonable time after he was taken into custody. In addition, petitioner asserts (Pet. 19-20) that his right to a speedy trial was violated by the failure to bring him to trial within 30 days after his arrest. The court of appeals correctly concluded that these non-jurisdictional claims were foreclosed by petitioner's guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea").