United States District Court, D. South Dakota, Northern Division
ORDER ON MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE AND ORDER DENYING
CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE.
pleaded guilty to second degree murder and was sentenced to
363 months custody. He appealed his conviction and sentence
to the United States Court of Appeals for the Eighth Circuit.
The Eighth Circuit affirmed. United States v.
Larrabee, 436 F.3d 890 (8th Cir. 2006).
filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, 1:07-cv-01012-CBK. The
motion was denied upon initial consideration pursuant to Rule
4 of the Rules Governing Section 2255 Proceedings for the
United States District Court. Petitioner appealed and I
denied the motion for a certificate of appealability. The
United States Court of Appeals for the Eighth Circuit also
denied a motion for a certificate of appealability.
filed a motion to vacate my order denying his previous motion
to vacate, ostensibly on the basis of Fed.R.Civ.P. 60(b). The
motion was denied. Petitioner appealed and the Eighth Circuit
filed a second motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255,
l:14-cv-01005-CBK, contending that his sentence was imposed
in violation of the Ex Post Facto Clause, citing the United
States Supreme Court's decision in Peugh v. United
States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84
(2013). That motion was denied on the merits and on the basis
that petitioner had failed to obtain permission from the
Eighth Circuit to file a second or successive petition.
Petitioner appealed and the Eighth Circuit denied a
certificate of appealability.
has filed a third motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, contending that
this Court lacked federal criminal subject matter
jurisdiction over his case. Petitioner joins a plethora of
federal criminal defendants who mistakenly believe that the
Major Crimes Act, 18 U.S.C. § 1153, violates the 1868
Fort Laramie Treaty and the United States Supreme Court's
decision in Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct.
396, 27 L.Ed. 1030(1883).
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2255 Proceedings for
the United States District Courts.
Crow Dog, the Supreme Court held that Congress had
not, by any clear expression of intent, granted jurisdiction
to the federal courts to exercise jurisdiction over an Indian
who commits a crime against another Indian on an Indian
reservation. Ex Parte Kan-gi-shun-ca (otherwise known as
Crow Dog), 109 U.S. at 571-572, 3 S.Ct. at 406. In
direct response, Congress enacted the Major Crimes Act of
1885, now codified at 18 U.S.C. § 1153, which conferred
federal jurisdiction over crimes committed by Indians on
Indians on an Indian reservation. Keeble v. United
States, 412 U.S. 205, 209-211, 93 S.Ct. 1993, 1996-97,
36 L.Ed.2d 844 (1973). The Constitutionality of the Major
Crimes Act was upheld in United States v. Kagama,
118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). Congress has
the power to abrogate the provisions of an Indian treaty,
Lone Wolf v. Hitchcock, 187 U.S. 553, 566, 23 S.Ct.
216, 221, 47 L.Ed. 299 (1903), and now neither the Fort
Laramie Treaty nor Ex Parte Crow Dog operate to
deprive this Court of jurisdiction over the defendant for the
prosecution of the offense in this case.
event, pursuant to 28 U.S.C. § 2255(h) and Rule 9 of the
Rules Governing Section 2255 Proceedings for the United Sates
District Courts, before presenting a second or successive
motion to vacate, petitioner must obtain an order from the
United States Court of Appeals for the Eighth Circuit
authorizing the district court to consider the motion.
Petitioner has failed to comply with the rules governing
second or successive motions.
plainly appears from the face of the motion that the
petitioner is not entitled to relief. Summary dismissal is
appropriate pursuant to Rule 4 of the Rules Governing Section
2255 Proceedings for the United States District Courts, Now,
therefore, IT IS ORDERED that petitioner's motion, Doc.
1, to vacate, set aside, or correct his conviction and
sentence pursuant to 28 U.S.C, § 2255 is denied. His
motion, Doc. 2, to proceed in forma pauperis is
HEREBY CERTIFIED that there does not exist probable cause of
an appealable issue with respect to the Court's order
denying petitioner's successive § 2255 ...