# Deerleader v. Crow

> District Court, N.D. Oklahoma · January 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10386613

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** January 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10386613

## How later opinions describe it (automated extraction)

- noting that a federal court ‘possesses power to grant any form of relief necessary to satisfy the requirement of justice’” (emphasis in original) (quoting Levy v. Dillon, 415 F.2d 1263, 1265 (10th Cir. 1969))
- explaining that an “unreasonable application of” clearly established federal law under § 2254(d)(1) “must be ‘objectively unreasonable,’ not merely wrong” or clearly erroneous (quoting Lockyer, 538 U.S. at 75-76)
- explaining that satisfaction of § 2254(d)’s standards “effectively removes AEDPA’s prohibition on the issuance of a writ” and “requires [a federal habeas court] to review de novo” the petitioner’s claims

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

FARRON ROBERT DEERLEADER, )
)
Petitioner, )
)
v. ) Case No. 20-CV-0172-JED-CDL
)
SCOTT CROW, Director of the )
Oklahoma Department of Corrections, )
)
Respondent. )

OPINION AND ORDER
Before the Court is the 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1) filed
by Petitioner Farron Robert Deerleader, a state inmate appearing pro se. On review of the petition,
the limited response (Doc. 16), and applicable law, the Court finds that Deerleader is entitled to
federal habeas relief on his claim that the State of Oklahoma lacked jurisdiction to enter a criminal
judgment against him in the District Court of Creek County, Case No. CF-2016-319, because he
is Native American and he committed the crimes for which he was convicted within the boundaries
of the Muscogee (Creek) Nation Reservation. The Court therefore grants the petition, in part, as
to claim four, dismisses the petition, in part, as to the remaining claims, and directs Respondent to
immediately release Deerleader from state custody.
I.
Deerleader challenges the judgment and sentence entered against him in the District Court
of Creek County, Case No. CF-2016-319. Doc. 1, at 1. Following a trial, the jury found Deerleader
guilty of second-degree burglary, in violation of Okla. Stat. tit. 21, § 1435, and larceny of an
automobile, in violation of Okla. Stat. tit. 21, § 1720, both after former conviction of two or more
felonies, and recommended a 45-year prison sentence for each conviction, a $10,000 fine for the
burglary conviction, and a $50,000 fine for the larceny conviction. Doc. 16-2, at 1. On May 25,
2017, the trial court sentenced Deerleader accordingly and ordered the sentences to be served
consecutively, resulting in a sentence of 90 years’ imprisonment. Doc. 16-2, at 1-2. The trial court
entered a written judgment and sentence against Deerleader on June 5, 2017. Doc. 16-1, at 1.

Represented by counsel, Deerleader filed a direct appeal in the Oklahoma Court of Criminal
Appeals (OCCA), challenging the sufficiency of the evidence to support his convictions and the
length of his sentences. Doc. 16-2, at 2. In an unpublished summary opinion filed August 16,
2018, in Case No. F-2017-563, the OCCA affirmed his judgment and sentence. Doc. 16-2, at 1-3.
Proceeding pro se, Deerleader applied for postconviction relief in state district court on
July 2, 2019. Doc. 16-4, at 1. Deerleader claimed (1) the State of Oklahoma lacked jurisdiction
over his criminal prosecution because he is Native American and a member and citizen of the
Muscogee (Creek) Nation and he committed his crimes of conviction within the historical
boundaries of the Muscogee (Creek) Nation Reservation, (2) trial counsel rendered ineffective
assistance, and (3) appellate counsel rendered ineffective assistance. Doc. 16-4, at 2-7.

In support of his challenge to the State’s jurisdiction, Deerleader alleged (1) he is Native
American and a member of the Muscogee (Creek) Nation, and (2) he was arrested in Kiefer,
Oklahoma and held in the Creek County Jail on charges of burglarizing, and stealing a car from, a
home in Mounds, Oklahoma which, he argued, “is located within the 1866 Territorial Boundaries
of the Muscogee (Creek) Nation which is defined as Indian Country under Title 18 U.S.C.
§ 1151.”1 Doc. 16-4, at 2. He further argued that the lands within these boundaries “have
historically been considered Indian country, and Congress has done nothing to divest these lands
of their character as Indian country.” Doc. 16-4, at 3. With his application, Deerleader submitted
(1) a letter from the Muscogee (Creek) Nation Citizenship Board certifying that he has been an

enrolled member of the Muscogee (Creek) Nation since August 1, 1990, and that his “Degree of
Muscogee (Creek) blood” is 7/16, Doc. 16-4, at 8, and (2) a copy of his Certificate of Degree of
Indian Blood (CDIB) card from the United States Department of the Interior Bureau of Indian
Affairs, dated July 20, 1992, certifying that he “is 7/16 degree Indian Blood of the Creek Tribe,”
Doc. 16-4, at 9. As legal support for his jurisdictional claim, Deerleader cited State v. Klindt, 782
P.2d 401 (Okla. Crim. App. 1989), and Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax
Comm’n, 829 F.2d 967 (10th Cir. 1987).2 Doc. 16-4, at 2-3. After the State filed a response in
opposition to his application for postconviction relief, Deerleader filed a reply brief and submitted
a copy of a map from the Muscogee (Creek) Nation Geospatial Department showing that Creek
County, Oklahoma falls entirely within Muscogee (Creek) Nation “Territory.” Doc. 16-5, at 4.

1 18 U.S.C. § 1151 provides: “Except as otherwise provided in sections 1154 and 1156 of
this title, the term “Indian country”, as used in this chapter, means (a) all land within the limits of
any Indian reservation under the jurisdiction of the United States Government, notwithstanding
the issuance of any patent, and, including rights-of-way running through the reservation, (b) all
dependent Indian communities within the borders of the United States whether within the original
or subsequently acquired territory thereof, and whether within or without the limits of a state, and
(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-
of-way running through the same.”
2 In Klindt, the OCCA concluded that “the State of Oklahoma does not have jurisdiction
over crimes committed by or against an Indian in Indian Country.” Klindt, 782 P.2d at 403. In
Indian Country U.S.A., the United States Court of Appeals for the Tenth Circuit cited Solem v.
Bartlett, 465 U.S. 463, 465 (1984), and earlier Supreme Court cases for the proposition that
“[n]umerous cases confirm the principle that the Indian country classification [in 18 U.S.C.
§ 1151] is the benchmark for approaching the allocation of federal, tribal, and state authority with
respect to Indians and Indian lands.” Indian Country, U.S.A., 829 F.2d at 973.
The state district court denied Deerleader’s application for postconviction relief on
November 18, 2019. Doc. 1, at 35-41. After noting that it had reviewed the “[e]ntire court file,”
the state district court seemingly found Deerleader’s claims were both procedurally barred and
without merit. Doc. 1, at 37-40. As relevant here, the state district court rejected Deerleader’s

claim that the State of Oklahoma lacked jurisdiction, stating,
Defendant/Petitioner first states the State has no jurisdiction because he is a citizen
of the Muscogee (Creek) Nation. Additionally, he adds that the residence of the
victim is within the territorial bounds of the Nation. While he does not cite the
Murphy case, now pending before the U.S. Supreme Court, he is making similar
allegations. Since there is a stay of the decision of the 10th Circuit, this contention
is premature.
Doc. 1, at 37-38.3
Deerleader timely filed a postconviction appeal, and the OCCA affirmed the denial of his
application for postconviction relief on March 17, 2020. Doc. 16-3, at 1. The OCCA understood
Deerleader’s appeal as raising claims that the evidence was insufficient to support his convictions,
that trial counsel and appellate counsel provided ineffective assistance, and “that Oklahoma lacked
jurisdiction in this case because he is an Indian and his crimes occurred in Indian Country.” Doc.
16-3, at 2-3. The OCCA rejected Deerleader’s challenges to the sufficiency of the evidence and
trial counsel’s effectiveness, finding those “issues either were or could have been raised in his
direct appeal and thus the issues are waived or procedurally barred.” Doc. 16-3, at 2-3. Applying

3 In November 2017, the United States Court of Appeals concluded, in Murphy v. Royal,
875 F.3d 896, 966 (10th Cir. 2017) (“Murphy I”), that Congress has not disestablished the
Muscogee (Creek) Nation Reservation and, as a result, the land within the boundaries of that
reservation is “Indian country” for purposes of the Major Crimes Act, 18 U.S.C. § 1153. Under
§ 1153, only the federal government has jurisdiction to prosecute certain crimes committed by or
against Native Americans within “Indian country.” 18 U.S.C. § 1153(a); see also 18 U.S.C. § 1152
(providing that certain crimes committed by an “Indian” in “Indian country” are subject to federal
and tribal jurisdiction). In 2018, the United States Supreme Court granted a petition for writ of
certiorari to review the Tenth Circuit’s decision in Murphy I. Sharp v. Murphy, 138 S. Ct. 2026
(2018).
Strickland v. Washington, 466 U.S. 668 (1984), and Logan v. State, 293 P.3d 969 (Okla. Crim.
App. 2013), the OCCA determined that appellate counsel did not perform deficiently or
prejudicially. Doc. 16-3, at 3. The OCCA then rejected Deerleader’s jurisdictional claim, stating,
Petitioner offers nothing other than his own assertions that his crimes were
committed within an Indian reservation, a dependent Indian community, or an
Indian allotment. He cites no controlling authority which establishes the District
Court lacked jurisdiction in this case. See Okla. Const. Art. VII, § 7 (Oklahoma
shall be divided into judicial districts and the District Court in each judicial district
shall have unlimited original jurisdiction of all justiciable matters). This Court
finds no sufficient reason to allow Petitioner’s ground for relief to be the basis of
this application for post-conviction relief.
Doc. 16-3, at 3-4.
II.
Deerleader, appearing pro se, filed the instant federal habeas petition on April 27, 2020.4
Doc. 1, at 1. He claims he is entitled to federal habeas relief because the evidence was not
sufficient to support his conviction for second degree burglary (claim one), the evidence was not
sufficient to support his conviction for larceny of an automobile (claim two), his sentences are
excessive (claim three), the State of Oklahoma lacked jurisdiction to prosecute him for crimes he
committed within the boundaries of the Muscogee (Creek) Nation Reservation (claim four), he
was deprived of his right to the effective assistance of trial counsel (claim five), and he was
deprived of his right to the effective assistance of appellate counsel (claim six). Doc. 1, at 5-31.
In July 2020, the United States Supreme Court issued decisions in two cases relevant to
Deerleader’s claim four—McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and Sharp v. Murphy, 140

4 Ordinarily, a state prisoner has one year from the date his or her judgment becomes final
on direct review to file a timely federal habeas petition, 28 U.S.C. § 2244(d)(1)(A), and the one-
year limitation period is tolled while the prisoner is exhausting his claims through an application
for postconviction relief or other collateral review that is properly filed in state court, 28 U.S.C.
§ 2244(d)(2). Respondent concedes that Deerleader timely filed his petition. Doc. 16, at 2.
S. Ct. 2412 (2020) (“Murphy II”). McGirt reached the Supreme Court via a petition for writ of
certiorari filed by a state prisoner who sought review of the OCCA’s decision denying his
application for postconviction relief. See McGirt v. Oklahoma, 140 S. Ct. 659 (Dec. 13, 2019)
(granting petition for writ of certiorari). Like Deerleader and the habeas petitioner in Murphy I,

the prisoner in McGirt claimed that because he is Native American, the State lacked jurisdiction
to prosecute him for serious offenses he committed within the boundaries of the Muscogee (Creek)
Nation Reservation. McGirt, 140 S. Ct. at 2459; Murphy I, 875 F.3d at 928. The McGirt Court
held that because Congress did not disestablish the Muscogee (Creek) Nation Reservation the land
within the historical boundaries of that reservation is “Indian country,” as defined in 18 U.S.C.
§ 1151(a), and, as a result, the federal government has exclusive jurisdiction to prosecute certain
crimes committed within those boundaries if those crimes are committed by or against Native
Americans. McGirt, 140 S. Ct. at 2468, 2479-80. Relying on McGirt, the Supreme Court in
Murphy II summarily affirmed the Tenth Circuit’s 2017 decision, in Murphy I, that had reached
the same conclusion. Murphy II, 140 S. Ct. at 2412.

On August 24, 2020, Respondent filed a motion (Doc. 11) and supporting brief (Doc. 12)
requesting a stay of this habeas action and an order directing Deerleader to return to state court to
“re-exhaust” claim four in light of McGirt. Deerleader opposed a stay, contending that he fairly
presented claim four to the OCCA in his postconviction appeal and should not be required to re-
exhaust his claim. Doc. 13, at 2-3. In an opinion and order (Doc. 15) filed December 14, 2020,
the Court determined that Deerleader exhausted available state remedies as to claim four, as
required by 28 U.S.C. § 2254(b)(1)(A), noted Respondent’s acknowledgement that the OCCA had
adjudicated that claim on the merits, agreed with Deerleader that re-exhaustion was not necessary,
denied Respondent’s request for a stay, and directed Respondent to file a limited response
explaining why this Court should not grant Deerleader’s request for federal habeas relief on claim
four. On January 4, 2021, Respondent filed a limited response (Doc. 16) and submitted portions
of the state court record necessary to adjudicate claim four.
III.

In claim four Deerleader challenges the legality of his state custody, asserting that the State
of Oklahoma lacked jurisdiction to prosecute him for crimes he committed within the boundaries
of the Muscogee (Creek) Nation Reservation because he is an enrolled member and citizen of the
Muscogee (Creek) Nation. Doc. 1, at 20-23. To support this claim, Deerleader primarily cites
Murphy I, and, as he did in state court, he provides copies of documents showing that he has been
an enrolled member of the Muscogee (Creek) Nation since 1990 and that he is certified as having
a certain degree of “Indian blood.” Doc. 1, at 21-23. As previously discussed, the OCCA rejected
this claim on postconviction appeal, stating:
Petitioner offers nothing other than his own assertions that his crimes were
committed within an Indian reservation, a dependent Indian community, or an
Indian allotment. He cites no controlling authority which establishes the District
Court lacked jurisdiction in this case. See Okla. Const. Art. VII, § 7 (Oklahoma
shall be divided into judicial districts and the District Court in each judicial district
shall have unlimited original jurisdiction of all justiciable matters). This Court
finds no sufficient reason to allow Petitioner’s ground for relief to be the basis of
this application for post-conviction relief.
Doc. 16-3, at 3-4.
When a petitioner, in custody under a criminal judgment issued by a state, requests federal
habeas relief, a federal court may grant relief from that judgment if the petitioner shows that he or
she “is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). However, when a state court has adjudicated a federal claim on the merits, a
federal court may grant habeas relief only if the petitioner first shows that the state court’s decision
on that federal claim either (1) “was contrary to . . . clearly established Federal law,” 28 U.S.C.
§ 2254(d)(1), (2) “involved an unreasonable application of clearly established Federal law,” id., or
(3) “was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding,” id. § 2254(d)(2).
Here, Respondent admits, and the Court agrees, that § 2254(d) does not bar habeas relief

because the OCCA’s decision on Deerleader’s jurisdictional claim is contrary to clearly
established federal law. Doc. 16, at 4-5. As used in § 2254(d)(1), the phrase “clearly established
Federal law” means “the governing legal principle or principles” stated in “the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court
decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000)). If clearly established federal law governs the federal claim presented in state
court, the state court’s decision is contrary to that law if the decision “‘applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases.’” Murphy I, 875 F.3d at
914 (alteration in original) (quoting Williams, 529 U.S. at 405). “If the state court identifies and
applies ‘the correct legal rule,’ its decision will not be ‘contrary to’ federal law, but the state court’s

application of the correct rule can still be evaluated under § 2254(d)(1)’s ‘unreasonable
application’ clause.” Id. (first quoting Williams, 529 U.S. at 406, then quoting 28 U.S.C.
§ 2254(d)(1)).
In Murphy I, the Tenth Circuit determined that the clearly established federal law
governing the habeas petitioner’s jurisdictional claim—a claim identical to the one raised here—
is the analytical framework established in Solem v. Bartlett, 465 U.S. 463 (1984). Murphy I, 875
F.3d at 926-28. And the Tenth Circuit’s reasoning as to why the OCCA’s 2005 decision that was
subject to habeas review in Murphy I was “contrary to” clearly established Federal law is equally
applicable here because, like the OCCA’s 2005 decision, the OCCA’s 2020 decision in this case
neither cited nor applied Solem when it addressed Deerleader’s jurisdictional claim and “the
substance of the OCCA’s analysis lacks even cursory engagement with any of the three Solem
factors.” Murphy I, 875 F.3d at 926. As in Murphy I, because the OCCA’s decision on
Deerleader’s jurisdictional claim is contrary to clearly established federal law, § 2254(d) does not
bar habeas relief in this case.5

As a result, this Court must “decide [Deerleader’s] jurisdictional claim de novo.” Murphy
I, 875 F.3d at 928; see also Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014) (explaining
that satisfaction of § 2254(d)’s standards “effectively removes AEDPA’s prohibition on the
issuance of a writ” and “requires [a federal habeas court] to review de novo” the petitioner’s
claims). And the Court finds ample support for Respondent’s position that Deerleader is entitled
to federal habeas relief on claim four. Doc. 16, at 5.
First, as Respondent points out, the record supports Deerleader’s assertion that he was an
“Indian,” within the meaning of 18 U.S.C. §§ 1152 and 1153, in 2015 when he committed the
crimes for which he was convicted. Because the relevant statutes do not define the term “Indian,”

5 The OCCA recognized Deerleader was asserting a federal claim arising from the State’s
unlawful exercise of criminal jurisdiction for crimes committed in “Indian country.” Doc. 16-3,
at 2-4. Specifically, the OCCA began its analysis with a singular and dismissive statement that
Deerleader “offers nothing other than his own assertions that his crimes were committed within an
Indian reservation, a dependent Indian community, or an Indian allotment.” Doc. 16-3, at 3. The
Court does not consider the OCCA’s isolated statement referring to terms used in 18 U.S.C. § 1151
as sufficient to “identif[y] the correct governing legal principle’ in existence at the time.” Cullen
v. Pinholster, 563 U.S. 170, 182 (2011) (quoting Williams, 529 U.S. at 413). But even assuming
that statement could be so construed, the second clause of § 2254(d) poses no bar to relief because
the OCCA unreasonably applied that principle to the facts Deerleader presented in state
postconviction proceedings. See id. (noting that when a state court identifies the correct legal
principle, the only question for the federal habeas court is “whether the decision ‘unreasonably
applies that principle to the facts of the prisoner’s case’” (quoting Williams, 362 U.S. at 413)); see
also White v. Woodall, 572 U.S. 415, 419 (2014) (explaining that an “unreasonable application of”
clearly established federal law under § 2254(d)(1) “must be ‘objectively unreasonable,’ not merely
wrong” or clearly erroneous (quoting Lockyer, 538 U.S. at 75-76)).
the Tenth Circuit “has applied a two-part test” that “ask[s] whether ‘the defendant (1) has some
Indian blood; and (2) is recognized as an Indian by a tribe or by the federal government.” United
States v. Nowlin, 555 F. App’x 820, 823 (10th Cir. 2014) (unpublished)6 (quoting United States v.
Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001)); see also United States v. Zepeda, 792 F.3d 1103,

1113 (9th Cir. 2015) (en banc) (noting that in a federal prosecution pursuant to § 1153, “the
government has the burden of proving to a jury that the defendant was a member of, or affiliated
with, a federally recognized tribe at the time of the offense”). Deerleader has provided undisputed
evidence that (1) he has been an enrolled member of the Muscogee (Creek) Nation since 1990 and
(2) that the federal government has recognized since 1992 that he has 7/16 Creek blood. Doc. 1,
at 22-23; Doc. 16, at 6; Doc. 16-4, at 8-9. This evidence demonstrates that Deerleader was an
“Indian,” under federal law, in 2015 when he committed the crimes for which he was convicted.
Second, the law and the record support that Deerleader committed those crimes in “Indian
country,” as defined in 18 U.S.C. § 1151(a). Significantly, on de novo review, this Court is not
limited to evaluating Deerleader’s jurisdictional claim based on clearly established federal law that

existed at the time of the OCCA’s decision on that claim. Murphy I, 875 F.3d at 929. Rather, in
reviewing his claim de novo, the Court “must account for Supreme Court and Tenth Circuit
authority post-dating the OCCA’s decision.” Id. As Respondent recognizes, in light of McGirt,
“any land within the [Muscogee (Creek) Nation] reservation is Indian Country within the meaning
of §§ 1151 and 1152.” Doc. 16, at 6. And undisputed evidence in the record shows that Deerleader
committed the crimes for which he was convicted in Creek County which is located entirely within
the historical boundaries of the Muscogee (Creek) Nation Reservation. Doc. 16, at 6-7; Doc. 16-

6 The Court cites Nowlin as persuasive authority, consistent with Fed. R. App. P. 32.1(a)
and 10th Cir. R. 32.1(A).
5, at 4.
In sum, as Deerleader contends, because he is Native American and he was an “Indian”
within the meaning of federal law in 2015, the State lacked jurisdiction to prosecute him for crimes
he committed in Creek County, i.e., in “Indian country,” in 2015. The judgment and sentence

entered against him in the District Court of Creek County, Case No. CF-2016-319, is thus invalid
and Deerleader is in state custody in violation of the Constitution and federal law. The Court
therefore finds that petitioner is entitled to federal habeas relief as to claim four.
IV.
Having determined that Deerleader is entitled to federal habeas relief on claim four, the
only matter left to consider is the appropriate remedy. “Federal courts are authorized under 28
U.S.C. § 2243 to ‘dispose of [a habeas corpus petition] as law and justice require’” and thus have
“broad discretion to craft appropriate habeas relief.” Clayton v. Jones, 700 F.3d 435, 443 (10th
Cir. 2012); see also Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992) (noting that a federal
court ‘possesses power to grant any form of relief necessary to satisfy the requirement of justice’”

(emphasis in original) (quoting Levy v. Dillon, 415 F.2d 1263, 1265 (10th Cir. 1969))).
As just discussed, Deerleader’s judgment and sentence, in the District Court of Creek
County, Case No. CF-2016-319, is invalid because the State of Oklahoma lacked jurisdiction to
prosecute him for crimes he committed in “Indian country.” Because the State cannot correct this
error through further proceedings, the Court finds that the appropriate remedy is to grant the
petition for writ of habeas corpus, as to claim four, and issue an unconditional writ setting aside
the invalid judgment and sentence, barring retrial in state court on the underlying charges, and
directing Respondent to immediately release Deerleader from state custody. See Capps v. Sullivan,
13 F.3d 350, 352 (10th Cir. 1993) (noting that the decision to grant a writ of habeas corpus “does
not generally bar a retrial of the petitioner on the charges underlying his defective conviction” but
recognizing that “barring a new trial is a permissible form of judgment” and, in some cases, “is
necessary to protect the purpose of habeas corpus jurisdiction when the error forming the basis for
the relief cannot be corrected in further proceedings”); see also Brian R. Means, Federal Habeas

Manual § 13:10 (2020) (citing Solem v. Bartlett, 465 U.S. 463 (1984), for the proposition that “[a]
petitioner in custody pursuant to a judgment issued by a court that lacked jurisdiction over him is
entitled to the issuance of an unconditional writ”).
Respondent appears to agree that Deerleader should be released from state custody.
Nonetheless, Respondent requests that the Court “stay its grant of relief for a period of thirty (30)
days to allow the Muscogee (Creek) Nation authorities to take custody of [Deerleader] if they so
choose.” Doc. 16, at 7. The United States Supreme Court “has repeatedly stated that federal courts
may delay the release of a successful habeas petitioner in order to provide the State an opportunity
to correct the constitutional violation found by the court.” Hilton v. Braunskill, 481 U.S. 770, 775
(1987) (citing Rogers v. Richmond, 365 U.S. 534, 549 (1961); Dowd v. United States ex rel. Cook,

340 U.S. 206, 210 (1951); In re Bonner, 151 U.S. 242, 261-62 (1894)). But Hilton contemplates
delayed release where the State can correct a defective conviction through a retrial or further
proceedings. Here, the State can only correct its unlawful prosecution of Deerleader by releasing
him from state custody because he is incarcerated pursuant to judgment and sentence that was
obtained without jurisdiction. Respondent cites no legal authority that would permit the State to
continue holding Deerleader in state custody when his judgment and sentence is invalid and he is
not subject to retrial in state court on the underlying charges.
Furthermore, regardless of whether tribal or federal authorities may “choose” to take
custody of Deerleader sometime in the future, Respondent has not provided this Court with any
evidence that either the Muscogee (Creek) Nation or the federal government has lodged a valid
detainer with the Oklahoma Department of Corrections that might otherwise justify Respondent’s
request to hold Deerleader for 30 days while those authorities ponder that decision. As a result,
the Court denies Respondent’s request to “stay its grant of [habeas] relief” for 30 days.

V.
Based on the foregoing, the Court concludes that the judgment and sentence entered against
Deerleader in the District Court of Creek County, Case No. CF-2016-319, is invalid because the
State lacked jurisdiction to prosecute Deerleader for crimes he committed within the boundaries
of the Muscogee (Creek) Nation Reservation. The Court therefore grants the petition for writ of
habeas corpus, in part, as to claim four, and issues an unconditional writ setting aside the invalid
judgment and sentence entered against Deerleader in the District Court of Creek County, Case No.
CF-2016-319, barring retrial in state court on the underlying charges in that case, and directing
Respondent to immediately release Deerleader from state custody. Lastly, because Deerleader’s
remaining habeas claims are moot in light of the relief he is entitled to on claim four, the Court

dismisses the petition, in part, as to claims one, two, three, five and six.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. The petition for writ of habeas corpus (Doc. 1) is granted, in part, as to claim four,
and dismissed, in part, as to claims one, two, three, five and six.
2. The judgment and sentence, entered against Deerleader in the District Court of Creek
County, Case No. CF-2016-319, is invalid and is hereby set aside, and any retrial in
state court on the underlying charges in that case is barred, because the State lacked
jurisdiction to prosecute Deerleader for crimes he committed within the boundaries of
the Muscogee (Creek) Nation Reservation.
3. Respondent’s request to “stay” the grant of habeas relief for 30 days is denied.
4. Respondent shall immediately release Deerleader from state custody.
5. No later than 14 days after the entry of this opinion and order, counsel for Respondent
shall file written notice of compliance with the writ.

6. A separate judgment shall be entered in this matter.
ORDERED this 15th day of January, 2021.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386613. Public record. Not legal advice.