Petition for Writ of Certiorari — Andrew John Yellowbear, Jr., Petitioner v. Robert O. Lampert, Director, Wyoming Department of Corrections

No.

I 87O44

L

IN THE

SUPREME COURT OF THE UNITED STATES

ANDREW JOHN YELLOWBEAR, JR.,

Petitioner,

ORi G I NAL

V.

ROBERT 0. LAMPERT, Director

Of The Wyoming Department Of Corrections,

Respondent.

Supre

U.S.

FILED

NOV 2 12018

OFFICE OF THE CLERK

PETITION FOR WRIT OF CERTIORARI

TO THE WYOMING SUPREME COURT

Andrew John Yellowbear, Jr., (A.O.#3021327)

Montana State Prison

700 Conley Lake Road

Deer Lodge, MT 59722

Petitioner, Pro se

November 20, 2018

QUESTIONS PRESENTED

Whether the Wyoming Supreme Court's reliance on precedent derived

from the state-friendly deferential standard of the Antiterrorism and

Effective Death Penalty Act of 1996, operates to supercede federal

court review of questions involving their own jurisdiction, the U.S.

Congress' power under Article I, Section 8,, Clause 3 of the U.S.

Constitution to enact, maintain, and enforce Indian Treaties, Act's

of the U.S. Congress involving Indian Tribes & Reservations, and other

relevant federal laws and statutes, thereby permitting it to deny

the petitioner's state habeas corpus petition.

Whether the Wyoming Supreme Court erred when it held that the pet iticxr's

Due Process Clause violatton.claim must be denied because it did not

involve the jurisdiction of the court to reach its merits.

Whether the Wyoming Supreme Court erred when it held that the petitioner's

dicriminatory based Due Process Clause violation claim must be denied

because it did not involve the jurisdiction of the court to reach

its merits.

11

PARTIES TO THE PROCEEDING

Petitioner, Andrew John Yellowbear, Jr., was the petitioner in the Wyoming

Supreme Court.

Respondent Robert 0. Lampert, was the respondent who was represented by the

State of Wyoming in the Wyoming Supreme Court.

iii

SUPREME COURT RULE 29.4(b) NOTICE

Petitioner hereby notifies the Court that 28 U.S.C. §2403(a) may apply in

this case, and that a true and correct copy of his petition has been served on

the Solicitor General of the United States.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............................................

PARTIES TO THE PROCEEDING ........................................ii

SUPREME COURT RULE 29(b) NOTICE ...................................

TABLE OF AUTHORITIES .............................................iv

DECISION BELOW...................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................1

STATEMENT OF THE CASE ............................................1

BASIS FOR FEDERAL JURISDICTION .....................................3

REASONS FOR GRANTING THE WRIT ....................................4

A. The Importance Of The Question Presented

I. The "Precedent" Of The Yellowbear Appeals And AEDPA.

II. AEDPA's Preemption Of Article I, Section 8, Clause 3, Of

The U.S. Constitution, And The Indian Canons Of

Construction...........................................7

AEDPA's assumed supersedence of the Commerce Clause.7

AEDPA deference undercuts the fundamental purpose of

the Indian canons of construction ...................8

III. Given Recent Precedent From The Tenth Circuit, The

1905 Act Area Of The WRIR In, And Thus The Situse Of

The Alleged Crime At Issue Still Retains Its Indian

CountryStatus ........................................9

a.) Indian country defined ..............................9

b. The Wyoming Supreme Court's failure to consider the

Tenth Circuit's new precedent regarding the Indian

Country status of a majority of the WRIR .............9

B. Conflicts With Decisions Of Other Courts.

The Holding Of The Court Below Regarding The Petitioner's

DueProcess Claim .......................................11

The Holding Of The Court Below Regarding The Petitioner's

Discrimination Based DueProcess Claim .................12

CONCLUSION .......................................................13

Appendix A-i

Wyoming Suprem Court's, Order Denying Petition For Writ Of

Habeas Corpus (August 29, 2018) ................................

-

V

Appendix A-2

Petition For Writ Of Habeas Corpus, to the Wyoming Supreme Court

(August 6, 2018) ............................................................

Appendix A-3

Motion To Dismiss Petition For Writ Of Habeas Corpus, Wyoming. Supreme Court

(August 20, 2018) .............................................................

Appendix A-4

Petitioner's Response In Opposition To Motion To Petition For Writ Of

HabeasCorpus..............................................................

Appendix A-5

18 U.S.C. § 1151.............................................................

Appendix A-6

V Amendment to the U.S. Constitution .......................................

Appendix A-7

XIV Amendment to the U.S. Constitution.....................................

-

-

vi

TABLE OF AUTHORITIES

Arizona v. Youngblood, 488 U.S. 51 (1988) ......................................13

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) ......11

Choctaw Nation of Indians v. U.S., 318 U.S. 423 (1943) ........................8

City of Cleburne, Tex., v Cleburne Living Center, 473 U.S. 432 (1985) .........13

Ford v. Wainright, 477 U.S. 399 (1986)........................................11

Jones v. Meehan, 175 U.S. 1 (1899) ............................................8

Magnan v. Tramell, 719 F.3d 1159, 1164 (10th Cir. 2013) .......................6

McClanahan v. State Tax Commission of Arizona, 411 U.S. 164 (1973) ............7

Royal v. Murphy, No. 17-1107 (Capitol Case)(U.S. Supreme Court, pending) ......9

Seminole Nation v. U.S., 316 U.S 286, 297 (1942) ..............................6

Smith v. Cain, 565 U.S. 73, (2012) ............................................11

Snow v. 5irmons, 474 F.3d 693, 696 (10th Cir. 2007) ...........................7

Turner v. U.S., 137 S. Ct. 1885 (2017) .........................................12

U.S. v. Kagama, 118 U.S. 375, 384 (1886) ......................................8

U.S. v. Lara, 541 U.S. 193 (2004) .............................................7

U.S. v. Mason, 412 U.S. 391 (1973) .............................................6

Washington v. Confederated

Bands & Tribes of the Yakima Indian Nation, 439 U.S.

.

463 (1979). ; ...... o ....................................... ! ................... 7-8

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).o ............................... 13

WhiteIarthTBaridóf Chippewa Indians, v. County, 605 F.Supp. 2d 1034, 1044 (D.

Minn. 2009) ...................................................................5

Wyoming v. U.S. EPA,: 875 F.3d 505 (10th Cir. 2017, cert denied, 138 S. Ct.

2677 (2018) .............................................................6, 9, 10

Yellowbear v. Attorney General of Wyo., 380 Fed. Appx. 740 (10th Cir. 2010)(un

reporteddecision) .............................................................5

Yellowbear v. Lampert, S-18-0178 (Wyo. 2018) ..................................1

Yellowbear v. State, 2008 WY 4, 174 P.3d 1270 (Wyo. 2008) .....................4

Yellowbear v. Wyoming Attorney Gen., 636 F. Supp. 2d 1254 (D. wyo. 2009) ......4

CONSTITUTIONAL PROVISIONS

State

Article I §§ 6, 10, 14, 15, & 36 of the Wyoming Constitution..................11

Federal

V Amendment of the U.S. Constitution ............................. .. ....... 1, 3, 12

VIII Amendment of the U.S. Constitution.......................................11

XIV Amendment of the U.S. Constitution ............... .................... 1, 3, 12

Article I, Section 8, Clause 3 of the U.S. Constitution (Commerce Clause) .....

...............................................................1, 3, 7

Article II, §2, cl. 2 of the U.S. Constitution................................3

Article III, §2 of the U.S. Constitution......................................3-5

STATUTES

State

Wyo. Stat. Ann. 1-27-101 et seq ..............................................3

Federal

18 U.S.C. §1151 et seq ...............................................1, 2, 3, 9

28 U.5.C.5 § 1257............................................................1, 5

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254....

................................................1, 3 1 41 5, 61 7, 8, 9

March 3, 1905 Act of Congress, 33 Stat. 1016.........................1, 2, 7, 10

July 27, 1939 Act of Congress, ch. 387, §5, Stat. 1129.....................1, 7

28 U.S.C. §2403(a) ............................................................iii

vii

28 U.S.C. § 1746

.14

SUPREME COURT RULES

Rule12(b)(c.) ......................................................

Rule 29(4)(b) ....................................................14

OTHER AUTHORITY

Cohen's Handbook of Federal Indian Law (2005 Ed.) ..............................5

Stephen Pevar's, The Rights Of Indians And Tribes (Oxord Univ. Press) .........6

1

DECISION BELOW:

The decision of the Wyoming Supreme Court is unreported. It is cited in the

table as Yellowbear v. Lampert, S-18-0178 (Wyo. 2018), and a copy is attached

hereto as Appendix A-i.

JURISDICTION

The judgment of the Wyoming Supreme Court was entered on August 29, 2018.

Jurisdiction is conferred under 28 USGS § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves:

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C.

§ 2254.

Article I, Section 8, Clause 3 of the U.S. Constitution: "To regulate

Commerce with foreign Nations, and among the several States, and with the

Indian Tribes".

The V Amendment of the U.S. Constitution (Due Process Clause). In Appendix.

The XIV Amendment of the U.S. Constitution (Due Process Clause). In Appendix.

The March 3, 1905 Act of Congress, 33 Stat. 1016. ( Petitioner has ro:aeessto:Stat.).

The July 27, 1939 Act of Congress, ch. 387, §5, Stat. 1129. (Petitioner has

no access to Stat.).

The Indian country Statute 18 U.S.C. § 1151. In Appendix.

STATEMENT OF THE CASE

The petitioner, a State prisoner, sought habeas corpus review of his conviction

on the grounds that the convicting court lacked jurisdiction over him and the

alleged crime because the situs is located in Indian country, that his right to

due process was violated during his trial when a Riverton (WY.) Police Department

detective in his case withheld and then destroyed potential exculpatory and

impeachment evidence during his prosecution, and that this discovery violation

is a product born of the historical discrimination against Native American's by

law enforcement of the area.

2

The petitioner's first claim centered on the fact that a recent decision

issued by the Tenth Circuit held that although the Wind River Indian

Reservation (WY.) was diminished by a 1905 Act of Congress, the majority of the

lands set forth in the Act were subsequently returned to, or made a part of, the

Reservation. Note the U.S., in proceedings in this Court took this same position.

Accordingly, the petitioner argued that the restored Reservation lands together

with the patchwork of other tribal, federal trust, private, State, Riverton (WY.),

and other federal land is Indian country as defined at 18 U.S.C. §1151 et seq. It

is within this patchwork that the situs of the alleged crime is encompassed,

landlocked, and surrounded by. The Wyoming Supreme Court, relying on AEDPA based

"precedent", found no good reason to revisit the issue.

The petitioner's second and third claims were based on testimony (admissions)

from pre-trial transcripts and other evidence which proved Riverton (WY.) Police

Department Detective, Charles F. Carr initially withheld and subsequently destroyed

potential impeachment and exculpatory evidence in the form of police reports

detailing interviews with witnesses conducted by his department. Petitioner,

claimed that not only did Detective Carr's suppression and destruction of

evidence violate his due process rights under the U.S. Constitution, the suppression

was part of a pattern of racial discrimination against him, Northern Arapaho's,

and other Indians in law enforcement and in the criminal justice system in Riverton,

WY., and Fremont County, WY., areas. Such suppression, the petitioner argued,

prejudiced his ability to mount a meaningful defense to the State's case against

him. The Wyoming Supreme Court, despite petitioner's evidence in support of

these claims, was not persuaded and dismissed the claims on jurisdictional grounds.

3

BASIS FOR FEDERAL JURISDICTION

This case questions the Constitutionality of the State friendly standard of

the Antiterorrism and Effective Death Penalty Act of 1996(28 U.S.C. §2254(d)(1));

and the Wyoming Supreme Court's reliance on the provision, in interpreting two

Act's of Congress that concern the Wind River Indian Reservation, the reach of

18 U.S.C. § 1151 et seq., and whether Congress requires the federal courts to

defer to state-court rullings rejecting claims that federal courts were the

exclusive jurisdiction for proesecuting criminal charges on American Indian

Reservations like the one cited above. A question, that goes directly to '2254

(d)(1)'s limits, if any, regarding Art. I, §8, cl. 3, Art II, §2, cl. 2, and

Art. III, §2, of the U.S. Constitution.

This case further raises questions of interpretation of the Due Process Clauses

of the V and XIV Amendments of the U.S. Constitution.

The Wyoming Supreme Court had jurisdiction under the general federal questions

conferred by Wyo. Stat. Ann. 1-27-101 et seq.

4

REASONS FOR GRANTING THE WRIT

A. The Importance Of The Question Presented

I. The "Precedent" Of The Yellowbear Appeals And AEDPA.

The Wyoming Supreme Court decision bellow cites three cases in support of

its' denial of the petitioner's habeas corpus petition, two concern a previous

direct appeal of the petitioner, and the last is case that the court relied on

to deny the direct appeal. Appendix A-i, at 1, 111.

Yellowbear v. State, 2008 WY 47 174 P.3d 1270 (Wyo. 2008), as stated was a

direct appeal from the district court's sentence of Life Without Parole for

the petitioner. There are many reasons that point to why and how this case was

wrongly decided, the most obvious are that the court failed to consider whether

any of the provisions of the 1905 Act were contrary to a finding of diminishment,

the court mistakenly found asum-certain:payrnentbecause the Act provided money

for per capita payments, a survey, schools, and a irrigation project, and the

court did not have before it, and thus could not consider, the evidence of the

legislative history and circumstances relating to the 1905 Act. It is no stretch

to say that the courts' review was generous to its sovereigns interests.

Yellowbear v. Wyo. Attorney Gen., 636 F. Supp. 2d 1254 (D. Wyo. 2009), was

a case where the U.S. District Judge hearing the petitioner's federal habeas

corpus petition carefully expounded on the judicial limit AEDPA placed on his

review of the the Wyoming Supreme Court's denial below:

"The Court is sensitive to the history of unequal bargaining power and

unjust treatment often afforded Indian tribes in their dealings with

federal and state governments. This is a consideration that must inform

any direct judicial review in cases regarding diminishment. However, this

Courts is here limited to collateral review of such decisions. Petitioner

invites the Court to do what it cannot. The Court cannot determine anew,

independently of the Wyoming Supreme Court's analysis, whether or not the

1905 Act served to diminish the Reservation and thus served to remove

Indian country status of the 1905 Act area. After conducting the review

permitted, the Court finds that the Wyoming Supreme Court properly took

into consideration and applied the law as set forth by the United States

S

Supreme [636 F. Supp. 2d 1272] Court and came to a conclusion that is not

objectively unreasonable."

"Based on the foregoing analysis, the Court grants summary judgment in

favor of Respondents. Accordingly, Petitioner's underlying Petition for

Relief must be denied."

Yellowbear v. Attorney Gen. of Wyo., 380 Fed. Appx. 740 (10th Cir. 2010)(un

reported decision), is the petitioner's appeal from the district court's denial

of his federal habeas petition under the limits placed on it by the AEDPA. The

Tenth Circuit upheld the denial, holding that any limits placed on the review

of the petitioner's federal question, could be remedied by simply petitioning

this Court for review of state-court adjudications of federal questions under

U.S. Constitution, Art. III, § 2 and 28 USCS §1257; because direct review is

not constrained by § 2254(d)(1).

Accordingly, as a matter of of statutory interpretation of § 2254(d)(1), the

petitioner raises the question of whether Congress has required the federal

courts to automatically defer to a state-court rulling rejecting a claim that

the federal courts were the exclusive jurisdiction for prosecuting crimes

against Native Americans like the petitioner on American Indian Reservations

like the WRIR. The petitioner asserts that the comity considerations that

brought about, and this case animated the federal district court to deny his

federal habeas petition, do not apply to prosecutions that usurped exclusive

federal jurisdiction. Most federal courts hold that "neither the State nor

the County has a decision-making interest in issues of federal Indian law"

White Earth Band of Chippewa Indians v. County, 605 F. Supp. 2d 1034, 1044

(D. Minn. 2009); see also Cohen's Handbook of Federal Indian Law 2005 Ed.

§2.01[2] "The field of federal Indian law has been centrally concerned with

protecting Indian tribes from illegitimate assertions of state power over

tribal affairs."

1.1

At least one court; the Tenth Circuit, has touched on the substance of the

petitioner's claim but it too passed on resolving the question. Magnan v. Trammell,

719 F.3d 11599 1164 (10th Cir. 2013)(reserving question). The court, however,

only concerned itself with the deference owed to AEDPA regarding jurisdictional

challenges it failed to address as argued here whether AEDPA can be used to

resolve questions of Reservation diminishment and as described below restoration.

Given the short shrift the federal courts gave to his federal appeals, none

of them should be given much weight on the underlying question regarding the

WRIR. Nevertheless, the Tenth Circuit in Wyoming v. United States EPA, 875 F.3d

505 (10th Cir. 2017) c.ert denied, 138 S.Ct. 2677 (2018), expressley gave them

weight where none was due.

Now, the Wyoming Supreme Court has made the same mistake "Given this precedent,

this Court finds no good reason to revisit the issue." Appendix A-i, at 1, ¶11.

Such reliance flies in the face of U.S. Constitution, Art. III, § 2, U.S.

Constitution, Amend. XIV (1868), and certainly doesn't square with holding of

this Court "The Supreme Court has recognized that the United States has "moral

obligations of the highest responsibility and trust" to Indians [Seminole Nation

v. U.S., 316 U.S. 286, 297 (1942)] and must use "great care" in its dealings

with them [U.S. v. Mason, 412 U.S. 391, 398 (1973)]. Consequently, as explained

more fully in Chapter III, any government action harmful to Indian interests

must be judged using "the most exacting fiduciary standards." [Seminole Nation,

316 U.S. at 297]" Stephen Pevar 'The Rights Of Indians And Tribes', Ch. XVIII

"Judicial Review", What Standards must a Court use in Reviewing Indian Cases?

at 327 (Oxford University Press).

7

II. AEDPA's Preemption Of Article I, Section 8, Clause 3

Of The U.S. Constitution, And the Indian Canons Of

Construction.

AEDPA mandates that the federal court's must apply a highly deferential

standard of review to any claim addressed on the merits by state courts. This

state-friendly deference has constinuously been articulated and applied to the

petitioner's underlying federal appeals and within the Tenth Circuit. Snow v.

Sirmons, 474 F.3d 693, 696 (10th Cir. 2007).

AEDPA intrudes on key tenants of the U.S. Constitution, Act's of the U.S.

Congress, and other federal laws that are specific to Indians and Indian Tribes,

as well as the historical deference owed to them.

a.) AEDPA's assumed supersedence of the Commerce Clause

Article I, Section 8, Clause 3 of the U.S. Constitution authorzes Congress

to regulate commerce with the Indian Tribes, that authorization is now recognized

as the exclusive basis for the extensive variety of federal statutes that affect

Indians and Indian Tribes. This includes the enactment, enforcement, and

maintainability of the March 3., 1905 Act of Congress, 33 Stat. 1016, and the

July 27, 1939 Act of Congress, ch 387, § 5, Stat. 1129. McClanahan v. State Tax

Commission of Arizona, 411 U.S. 1649 172 n.7, 93 S. Ct. 1257, 36 L. Ed. 2d 129

(1973), and U.S. v. Lara, 541 U.S. 193 1 2019 124.S. Ct. 1628, 158 L. Ed. 2d

420 (2004).

Congress has used its broad Commerce Clause power to regulate virtually all

activites within Indian country. Neither the AEDPA provision at issue, or the

Commerce Clause purport to grant the State's or:-their courts the authority to

step-in to the Congresses regulatory role on American Indian Reservation like

the WRIR or in Indian country. This Court has pointed out that the "[s]tates do

not enjoy [the] same unique relationship with Indians" as the federal government

Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S.

cii

463, 501 (1979). AEDPA deference overreaches in this regard and this is accstitutiai.

b.) AEDPA deference undercuts the fundamental -. purpose of the

Indian canons of construction

The Indian Canons of Construction, were fashioned by this Court to compensate

for the disadvantage at which the treaty-making process placed the. Tribes. Jones

v. Meehan, 175 U.S. 1, 20 S. Ct. 1, 44 L. Ed. 49 (1899). AEDPA deference sweeps

aside this Court's precedent on the subject, some of which go back over a century.

Implicit in the explanation defined in the U.S. Supreme Court case above is the

principle that, given the guardian-ward relationship, the Congress' and Executive

Branch's actions should be viewed as having been taken with the trust obligation

arising from from such a relationship in mind. Choctaw Nation of Indians v. U.S.,

318 U.S. 423, 432, 63 S. Ct. 672, 87 L. Ed. 877 (1943).

This case presents a question for the Court, that to date, no federal court

has ever answered or even attempted to address: When it comes to adjudicating

federal Indian law questions, like the diminishment of the WRIR, which deference

should carry more weight AEDPA or the much older Indian Canons of Construction?

Petitioner, contends here that the Indian Canons of Construction should guide

thef&IeralcOurtsin deciding such questions. There simply is no precedent to

the contrary, in fact, this Court has already ruled on the importance of the

need for federal court supremacy on Indian matters "Because of the local ill

feeling, the people of the States where [the Indians] are found are often their

[the Indians] deadlies enemies", United States v. Kagama, 118 U.S. 375, 384

(1886).

Most recently, two states have sought to take advantage of the state-friendly

provision of the AEDPA, Wyoming and Oklahoma. See cases cited above. It is no

secret that the State of Wyoming has sought a federal court determination that

reduces and presumably opens-up the WRIR's land base. Wyoming v. United States

9

-

EPA, 875 F.3d 505 (10th Cir. 2017), cert denied, 138 S. Ct. 2677 (2018)(relying

on the petitioner's criminal appeals to effect a diminished WRIR). Oklahoma,

is now arguing in proceedings in this Court that the Muscogee (Creek) Reservation

was diminished. Royal v. Murphy, No. 17-1107 (Capitol Case).

The Court should grant Certiorari to address, once and for all, the limits

that the deferential standard of review under AEDPA are in deciding questions

usually reserved for adjudication using the standards articulated in federal

Indian law. This is an area of law that is too important to the Indian Tribes

to be left unanswered. Supreme Court Rule 12(b)(c).

III. Given Recent Precedent From The Tenth Circuit, The 1905

Act Area Of The WRIR In Dispute, And Thus The Situs Of

The Alleged Crime At Issue Still Retains Its Indian

Country Status.

Indian country defined

Even if the Court decides not to address the important questions above, the

petitioner raised a valid Indian country determination of the WRIR in proceedings

before the Wyoming Supreme Court. Appendix A-2, Claim One. As pertinent here,

subsection (a) of the Indian country statute 18 U.S.C. § 1151 includes all of

the territory within an Indian Reservation. It should be noted that even land

owned by non-Indians in fee simple (i.e

.,

where there has been "issuance of

any patent") is still Indian country if it is within the exterior boundaries

of an Indian reservation. Today there exists within most every Reservation

large tracts of land long since settled by non-Indians, and even entire towns

-

incorporated by non-Indians under state law, but all of those tracts and towns

are Indian country for purposes of jurisdiction. Seymour v. Superintendent,

368 U.S. 351 (1962).

The Wyoming Supreme Court's failure to consider the

Tenth Circuit's new precedent regarding the Indian

Country status of a majority of the WRIR

10

The Tenth Circuit has acknowledged the restoration of the once ceded lands

of the 1905 Act of Congress to the WRIR. Wyoming v. United States EPA, 875

F.3d 505 (10th Cir. 2017), cert. denied, 138 S. Ct. 2677 (2018).

While the majority and he dissent disagreed over whether the 1905 Act of

Congress diminished the WRIR's boundaries, the majority, dissent, and Wyoming

agreed that a majority of the ceded lands at the WRIR were subsequently restored

to tribal ownership. Feb. 22, 2017 slip opinion, majority at p.'s 8, 34-35,

Dissent at 13, ¶1 2 [Appendix A-2, at 8, #24, Ex. 21, and State Of Wyoming's

Response To Petitions For Rehearing En Banc, at 14-16 [Appendix A-4, at 4-51.

Despite the petitioner having raised this argument below [Appendix A-2, at 8,

#24], the court for some reason cited it for the proposition that his Indian

country claim "has been repeatedly rejected by this Court and the federal

courts." Appendix A-i, Ii 1.

The Court should not allow Wyoming to have it both ways, it should not be

allowed to argue that the WRIR was diminished by the 1905 Act in every case

but the Tenth Circuit case whose precedent the petitioner cited in support of

his Indian country claim, and where Wyoming asserted:

"First, the Northern Arapaho Tribe mirepresents the practical effect

of the decision. In a flourish of hyperbole, it claims that the decision

"strips the Northern Arapaho and Eastern Shoshone of nearly two-thirds

of their reservation homeland[.]" (Northern Arapaho Pet. at 1). While

that may have been true in 1905, this claim ignores the effect of the

multiple subsequent restoration orders." "these orders had the

practical effect of restoring the vast majority of the ceded lands

to the Reservation. Of the approximately 1.4 million acres ceded in

1905, over 1 million acres have been restored to the Reservation."

[Appendix A-4, at 4-51.

Surely, the lands involved in the "multiple subsequent restoration orders",

must :have boundaries that are definable and that together with the WRIR' s

existing boundaries encompass, ILandlock, and surround the situs of the petitioner's

alleged crime.

If for nothing else, the Court should grant Certiorari to correct Wyoming's

proclivity to flip-flop on this issue.

11

B. Conflicts With Decisions Of Other Courts.

I. The Holding Of The Court Below Regarding The Petitioner's

Due Process Violation Claim

During the petitioner's prosecution and trial the law enforcement agency who

charged him with the crime now subject to review, the Riverton (WY.) Police

Department ("RPD"),, had a "procedure" of withholding and then destroying

police reports detailing interviews of witnesses that it planned to, and subseq -itly

din use in the prosecution of him. Appendix A-2, at 10-14, Ex.'s 3-9, Claim Two.

A As stated in his pro se petition, during the times relevant to this claim,

the petitioner was charged with felony murder for which the State of Wyoming

was seeking the death penalty. Under circumstances such as this, this Court

has held that a heightened standard of reliability attaches in prosecutions

pursuant to the Eighth and Fourteenth Amendments to the U.S. Constitution

and Article I §§ 61 10, 14, 15, & 36 of the Wyoming Constitution. Ford v

Wainright, 477 U.S. 399, 411, 106 S. Ct. 2595, 91'L.Ed. 2d 335 (1986).

The RPD's actions in this regard, the petitioner argued, fell far short

of the heightened standard of reliability aspired to by this Court. It is

only through the hard work of his Defense Counsel, Diane M. Lozano that this

is not a eleventh-hour petition. Nonetheless, this Court has held that

such all or nothing, trial tactics violate criminal defendants due process

rights under the. Federal Constitution. In Brady v. Maryland, 373 U.S. 83, 83

S. Ct. 1194, 10 L. Ed. .2d 215 (1963), this Court held that the government

violates the U.S. Constitution's Due Process Clause "if it withholds evidence

that is favorable to the defense and material to the defendant's guilt or

punishment." Smith v. Cain, 565 U.S. 73, 75, 132 S. Ct. 627, 181 L. Ed. 2d

571 (2012)(summarizing the Brady holding).

The court below, in a pro fortna'manner, failed to analyze the petitioner's

12

claim, argument in support of the claim, and the myriad of evidence that backed

both. Appendix A-i, 11 2, stating:

"As for the Petitioner's second and third claims, Petitioner has not

established that either of those claims is jurisdictional. This Court

has limited the reach of habeas corpus to contesting the district

court's jurisdiction over the subject matter, jurisdiction over the

person of the defendant, or its authority to render the particular

judgment."

It's hard to imagine how a court, after even perfunctorily reviewing the

underlying claim, argument, and evidence in support, could find that the

convicting court had the authority to render the conviction at issue. It would

seem, that once the particular judgment was tainted by near undisputable

evidence the convicting court would loose its jurisdiction

Despite the Court's recent 2017 decision regarding Brady v. Maryland

violations, Turner v. United States, 137 S. Ct. 1885 (2017), the Court.shóuld

grant Certiorari to bring the Wyoming Supreme Court in line with the Brady

doctrines principles.

II. The Holding Of The Court Below Regarding The Petitioner's

Discrimination Based Due Process Claim

During proceedings in the Wyoming Supreme Court, the petitioner alleged that

the City of Riverton, WY., the RPD, and the Fremont County & Prosecuting

Attorney's Office regularly engaged in a pattern and practice of selectively

discriminating against Native American's in providing police services and in

their administration of the State judicial system in Riverton,, and the Fremont

County areas of Wyoming. The petitioner, claimed that the RPD's withholding

and destruction of the "rough notes" (evidence at issue) is a product born

of such racial discrimination. Appendix A-2, at 16-17, #'s 56-63, Ex.'s 10 & 11,

Claim Three.

The Fourteenth Amendment, Fifth Amendment (Equal Protection)(Substantive Due

Process), and case law stemming from the same forbid a state to "deny any

13

person within its jurisdiction the qual protection of the laws." U.S. Const.,

Amend. XIV, City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432,

4391 105 S. Ct. 3249 (1985), and Weinberger v. Wiesenfeld, 420 U.S. 636,

638 n.2, 95 S. Ct. 1225 (1975).

Under these cases, Arizona v. Youngblood, 488 U.S. 51 (1988), and the due

process of the Fourteenth Amendment of the U.S. Constitution, the good dr.-]-bad

faith of the state is irrelevent when the state fails to disclose material

exculpatory evidence to the defendant in a criminal prosecution.

CONCLUSION

For the foregoing reasons, certiorari should be granted in this case.

:th

Respectfully submitted on thisQday of November, 2018

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A- ~—

Andrew J. eJwbear, Jr.

Petitioner, Pro se

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