Fay v. Chester

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 8, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LEIGHTON FAY,
Petitioner-Appellant,
No. 10-3225
v.
(D.C. No. 5:08-CV-03301-RDR)
(D. Kan.)
CLAUDE CHESTER, Warden,
USP-Leavenworth,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Leighton Fay, a pro se federal prisoner incarcerated in Leavenworth,
Kansas, 1 appeals from the district court’s denial of his petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241. Exercising jurisdiction under
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Because Mr. Fay is proceeding pro se, we construe his filings
liberally. See, e.g., Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
28 U.S.C. §§ 1291 and 2253(a), we affirm.
BACKGROUND
In 1981, Mr. Fay was convicted of four counts of assault resulting in
serious bodily injury, three counts of assault with a dangerous weapon, and one
count of assault by striking, beating, or wounding, and was acquitted of a count of
second-degree murder, in the United States District Court for the District of South
Dakota. See United States v. Fay, 668 F.2d 375, 377 (8th Cir. 1981). The district
court sentenced Mr. Fay to 45.5 years’ imprisonment. On direct appeal, the
United States Court of Appeals for the Eighth Circuit reversed Mr. Fay’s three
convictions for assault with a dangerous weapon. See id. at 378. This caused Mr.
Fay’s sentence to be reduced to 40.5 years’ imprisonment.
Mr. Fay was released from custody on November 18, 2005; however, he
remained under the jurisdiction of the United States Parole Commission
(“Commission”) as if on parole, pursuant to 18 U.S.C. §§ 4163–64, until February
13, 2021. See R. at 181 (Certificate of Mandatory Release, dated Nov. 17, 2005).
On February 12, 2007, the Commission determined that Mr. Fay had violated his
parole, revoked Mr. Fay’s mandatory release, and continued Mr. Fay to the
expiration of his sentence. See id. at 189 (Notice of Action, dated Feb. 12, 2007).
Mr. Fay was scheduled for mandatory release in ten years. See id. at 187 (Hr’g
Summ., dated Jan. 23, 2007) (“[T]he subject has a mandatory release date after
the service of 120 months.”); see also id. at 157 (Sentencing Monitoring
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Computation Data, dated July 16, 2008) (calculating a September 19, 2016,
statutory release date).
Mr. Fay filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, which the district court denied. See Fay v. Chester, No.
5:08-CV-03301-RDR, 2010 U.S. Dist. LEXIS 87799 (D. Kan. Aug. 25, 2010).
Mr. Fay asserts three sets of claims before this court: (1) that the United States
lacked jurisdiction to set his parole and release dates because he is an American
Indian and the Sioux Nation is a sovereign; (2) that he is actually innocent of the
original charges from 1981, which underlie his parole; and (3) that the
Commission improperly considered a past accusation of criminal conduct, as well
as a charge of which Mr. Fay was acquitted, instead of requiring proof beyond a
reasonable doubt.
DISCUSSION
I. United States’s Jurisdiction Over American Indians
Mr. Fay asserts that he “is a[n] enrolled member of the Sioux Tribe . . .
and has maintained his Traditional standing in the Tribe with Traditional
Members.” Aplt. Opening Br. at 5a. Construing his appellate brief liberally, Mr.
Fay raises three grounds in support of his argument that the United States—more
specifically, the Commission—lacked jurisdiction over him because he is an
American Indian and the Sioux Nation is a sovereign: (1) the Major Crimes Act is
unconstitutional; (2) the Sioux Nation did not relinquish its sovereignty under the
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Fort Laramie Treaty of 1851; and (3) the Fourteenth Amendment recognizes
American Indian tribes as sovereigns. 2
First, Mr. Fay argues that the Indian Major Crimes Act, 18 U.S.C. § 1153,
is unconstitutional. The Indian Major Crimes Act “authorizes the prosecution in
federal court of an Indian charged with the commission on an Indian reservation
of certain specifically enumerated offenses.” Keeble v. United States, 412 U.S.
2Mr. Fay previously raised similar jurisdictional challenges in his
motions to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C.
§ 2255. See Fay v. Thornburgh, No. 91-3032, 1992 WL 63394 (D.S.D. Mar. 24,
1992); R. at 35 (Mem. Op., dated Apr. 23, 1986). Such challenges to the
jurisdiction of the convicting and sentencing court are properly brought pursuant
to 28 U.S.C. § 2255. See United States v. Furman, 112 F.3d 435, 438 (10th Cir.
1997). However, under a liberal construction, Mr. Fay’s jurisdictional challenges
also are cognizable under 28 U.S.C. § 2241 as challenges to the Commission’s
jurisdiction. Mr. Fay argues that he “had a ten year sentence illegally imposed by
the Parole Commission,” Aplt. Opening Br. at 2b, and repeatedly lodges
challenges to the jurisdiction of the “United States government,” see id. at 1, 2,
1a, 6a, not just to the jurisdiction of the court that convicted and sentenced him.
Challenges “concerning good-time credit and parole procedure[] go to the
execution of sentence and, thus, should be brought against defendant’s custodian
under 28 U.S.C. § 2241.” Furman, 112 F.3d at 438. Accordingly, challenges to
the Commission’s jurisdiction are properly brought under 28 U.S.C. § 2241. See
Hutchings v. U.S. Parole Comm’n, 201 F.3d 1006, 1008 (8th Cir. 2000)
(affirming § 2241 denial where the petitioner claimed “that the Commission
lacked jurisdiction to revoke his parole”); Campos v. U.S. Parole Comm’n, 120
F.3d 49, 49 (5th Cir. 1997) (affirming § 2241 denial where the petitioner
“contend[ed] that . . . the Commission’s jurisdiction over him ended”); Martin v.
U.S. Parole Comm’n, 108 F.3d 1104, 1105 (9th Cir. 1997) (affirming § 2241
denial where the petitioner “asserted that the Commission d[id] not have
jurisdiction over him”); see also Roberts v. U.S. Dep’t of the Navy, 961 F.2d 220,
1992 U.S. App. LEXIS 6970, at *1 (10th Cir. 1992) (unpublished table decision)
(affirming § 2241 dismissal where the petitioner “contend[ed] that the United
States Parole Commission lack[ed] jurisdiction over him”).
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205, 205–06 (1973). Mr. Fay argues that the Indian Major Crimes Act is
unconstitutional because Ex parte Crow Dog, 109 U.S. 556 (1883), held that the
United States has no jurisdiction over the Sioux Nation or “Indian Country.” See
Aplt. Opening Br. at 1a, 5a–6a. Mr. Fay is incorrect. Ex parte Crow Dog held
“that a federal court lacked jurisdiction to try an Indian for the murder of another
Indian . . . in Indian country,” but “recogniz[ed] the power of Congress to confer
such jurisdiction on the federal courts.” Keeble, 412 U.S. at 209. “The Major
Crimes Act was passed by Congress in direct response to the decision of [the
Supreme] Court in Ex parte Crow Dog,” id. (emphasis added), and the Supreme
Court has upheld the constitutionality of the Indian Major Crimes Act, see id. at
n.9 (citing United States v. Kagama, 118 U.S. 375 (1886)).
Second, Mr. Fay argues that the Fort Laramie Treaty of 1851, U.S.-Sioux,
Sept. 17, 1851, 11 Stat. 749, “is the only consen[s]ual and legal agreement under
the Constitution between the Sioux Nation and the United States Government, and
it spec[i]fically did not relinquish sovereignty or jurisdiction to United States
Government authorities.” Aplt. Opening Br. at 2. Mr. Fay further argues that 25
U.S.C. § 71 did not affect the Fort Laramie Treaty of 1851, and that any
abridgements or changes to the treaty would violate the Ex Post Facto Clause.
See id. at 3, 2a, 5a. However, Mr. Fay has not articulated how the Fort Laramie
Treaty of 1851 supports his argument that the United States lacked jurisdiction
over him. We decline to advance possible reasons for him. See DiCesare v.
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Stuart, 12 F.3d 973, 979 (10th Cir. 1993) (“[W]hile we hold pro se litigants to a
less stringent standard, it is not the proper function of the district court to assume
the role of advocate for the pro se litigant.”); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (same); see also Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on the responsibility
of serving as the litigant’s attorney in constructing arguments and searching the
record.”). By failing to identify his “contentions and the reasons for them, with
citations to the authorities and parts of the record on which [he] relies,” as
required by Federal Rule of Appellate Procedure 28(a)(9)(A), Mr. Fay has
forfeited this claim. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007) (“[W]e routinely have declined to consider arguments that are not raised, or
are inadequately presented, in an appellant’s opening brief.”).
Third, Mr. Fay argues that the Fourteenth Amendment—by providing that
“[r]epresentatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State,
excluding Indians not taxed,” U.S. Const. amend. XIV, § 2—“recognizes the fact
that Indian Tribes with their own governments are sep[a]rate sover[e]igns.” Aplt.
Opening Br. at 3a. Mr. Fay further argues that the Indian General Allotment Act,
25 U.S.C. §§ 334–58, and 8 U.S.C. § 1401, which provides citizenship at birth,
are unconstitutional because they confer citizenship to American Indians by
statute, while “[l]egally it would take a Constitutional Amendment to effect a
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change regarding citizenship” for American Indians. Aplt. Opening Br. at 4a.
Mr. Fay has likewise forfeited this claim by failing to sufficiently present and
develop his argument. See Fed. R. App. P. 28(a)(9)(A); Bronson, 500 F.3d at
1104.
II. Actual Innocence
Mr. Fay argues that he is actually innocent of the original charges from
1981 that underlie his parole. See Aplt. Opening Br. at 2b (“Appellant maintains
factual actual innocence . . . .”). The district court properly rejected Mr. Fay’s
actual innocence claim because “a petition for habeas corpus relief under § 2241
cannot be used to challenge the validity of a conviction.” Fay, 2010 U.S. Dist.
LEXIS 87799, at *6–7 (citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996)). “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence
rather than its validity,” whereas a “28 U.S.C. § 2255 petition attacks the legality
of detention.” Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (quoting
Bradshaw, 86 F.3d at 166) (internal quotation marks omitted).
III. Commission’s Decision to Revoke Parole
Mr. Fay next argues that he “had a ten year sentence illegally imposed by
the Parole Commission,” Aplt. Opening Br. at 2b, because the Commission
improperly failed to require “proof beyond a reasonable doubt[,] [which] marks
the legal boundary between guilt and innocence,” id. at 5. Mr. Fay argues that in
revoking his parole, the Commission improperly considered an allegation that Mr.
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Fay stabbed his wife in 1973, as well as the 1981 second-degree murder charge of
which he was acquitted.
We review the Commission’s decisions deferentially:
We will not disturb a decision by the Parole Commission unless
there is a clear showing of arbitrary and capricious action or an
abuse of discretion. The inquiry is not whether the
Commission’s decision is supported by the preponderance of the
evidence, or even by substantial evidence; the inquiry is only
whether there is a rational basis in the record for the
Commission’s conclusions embodied in its statement of reasons.
We do not reweigh evidence, make credibility determinations, or
substitute our judgment for the Commission’s.
Gometz v. U.S. Parole Comm’n, 294 F.3d 1256, 1260 (10th Cir. 2002) (citations
omitted) (internal quotation marks omitted).
In deciding to revoke parole, the Commission relied on Mr. Fay’s salient
factor score and severity of offense behavior. See R. at 190 (“Your parole
violation behavior has been rated as criminal conduct of Category Seven severity
because it involved Assault with Serious Bodily Injury. Your salient factor score
is 2.”). Mr. Fay does not appear to challenge the Commission’s calculation of his
salient factor score and severity of offense behavior. See Fay, 2010 U.S. Dist.
LEXIS 87799, at *16 (“The Parole Commission’s decision referenced the severity
of the parole violation, which petitioner does not contest . . . . Petitioner does not
contend that petitioner’s salient factor score would have been different if the
alleged false information had been ignored.”).
“When the Board gives valid reasons for its decision, this court will not
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assume that the Board relied on possibly invalid factors.” Bloodgood v.
Garraghty, 783 F.2d 470, 475 (4th Cir. 1986); accord Phillips v. Brennan, 912
F.2d 189, 191–92 (7th Cir. 1990) (“[E]rroneous information in the record would
not taint a decision explicitly based on uncontested considerations.”). “[S]o long
as sufficient evidence was before [the] Parole Board to support its decision, its
actions are not an abuse of discretion.” Wildermuth v. Furlong, 147 F.3d 1234,
1236–37 (10th Cir. 1998) (citing Solomon v. Elsea, 676 F.2d 282, 290–91 (7th
Cir. 1982)).
The Commission’s decision to revoke parole and continue Mr. Fay to the
expiration of his sentence is supported by a rational basis in the record.
Accordingly, we will not disturb the Commission’s decision.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Mr.
Fay’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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