Petition for Writ of Certiorari — Brandon Ray Buckles, Petitioner v. United States

IN THE SUPREME COURT OF THE UNITED STATES

BRANDON RAY BUCKLES,

PETITIONER,

VS.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Stephen R. Hormel

Hormel Law Office, L.L.C.

17722 East Sprague Avenue

Spokane Valley, WA 99016

Telephone: (509) 926-5177

Facsimile: (509) 926-4318

Attorney for Petitioner Buckles

QUESTIONS PRESENTED FOR REVIEW

1. Is it improper for a district court to summarily deny a federal prisoner’s motion to vacate,

set aside or correct a sentence pursuant to 28 U.S.C. § 2255 without an evidentiary hearing where

the prisoner alleges trial counsel was ineffective by stipulating to a essential element of the

offense without the prisoner’s consent and without investigating a meritorious defense, thereby,

depriving the prisoner Fifth and Sixth Amendment rights to a fair trial and to effective assistance

of counsel?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW is dia genera 5% aa ReSerd 5% GE Se RwAaW UG hp KHON TFG if

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TABLE OF AUTHORIMBES «....5.g.5......a-9.5....9-68.5....9.8.5-m....0-8-m.. iv

PETITION FOR WRIT OF CERTIORARI . 2.2.2... cece cee eee ene ees 1

MEMORANDUM AND ORDER BELOW és isis scorecard ine re seatareia i the Salem eR WE BE HONLOE O 1

JURISDICTION, sy see ais oisiss Ha He WRG TE NR Se OA BE STOR Be OS -R@ Ale EE ne He Baas Bp E 2

CONSTITUTIONAL AND STATUTORY PROVISIONS .. 0.0... ccc cece eee eee eee 2

STATEMENT OF THE CASE 64 sisigusiarais acs aip ae staiaions ti6 VIS ROW BY KE MOWER SS GR KS RORSS BEG 3

REASONS FOR GRANTING THE WRIT... 1... eee eee nee eee eee 11

1. The question of whether a district court improperly dismisses a federal

prisoner’s motion to vacate, set aside or correct the sentence pursuant to § 2255

without an evidentiary hearing where the prisoner alleges trial counsel stipulated

to an element of the offense without the prisoner’s consent and before

investigating a meritorious defense presents a significant federal question that

should be addressed by the Court... 0.0... cece cee renee ee ens 1]

2. This case is the ideal vehicle for the Court to resolve this significant

federal questiOn. 1... 6. eee eee ee eee eee eben ete e eee eeee 17

CONCLUSION 6cvsea axe 0s area ava 978 wreonrenaele om Wm Bessa We Ae am BR MRIERONAN 8% aH REIETETE 8% 18

APPENDIX, & sais Si US KOREN HR CARE FS TH es ae Ha OE ST Ba TE AERES 04 BY BORO Es 19

Unpublished Memorandum) sacemeens #1 exe Hs WEcRE Ko RaSEMIORROE ws MeKOSORIE + 1

Order Denying 28 U.S°C. § 2255 Motiong its sisiaraie wis se disiares sie oie pisletela'sie sis He wae sy 5 5

Indictment... 2... ce eee tence eee ene eee teen ene neaes 15

Trial Stipulation a. ssisuaw ase os weemanan va ae wae We TS WEN Be BS wRTR~NR SW OS HE Bre. 19

Pertinent Reporters Transcript of Day 1 Jury Trial... 0... eee ee eee es 22

ii

Pertinent Reporters Transcript of Day 2 Jury Trial... 0.0... eee eee ee 26

Certificate of Indian Blood . . cs si wsissscs ox oa BREE Sa HE COTW O% KERREGWOR 12 BE 30

Motion Under 28 U.S.C. § 2255... ccc eee cence eee eneneeunes 31

Points and Authorities in Support of Motion ............ 00000 cece eee cence cues 43

1ii

TABLE OF AUTHORITIES

Case Authority

Allison v. Blackledge,

533 F.2d 894 (4th Cir. 1976) sswase oy veaeigsie He HURST TE Oe does KE Va TECRwR- 13

Blackledge v. Allison,

431 19S! G3 (1977 ):. . genoa sea SX RRRGH BS 58 HRCA BE TR EMRRH Obs SERS 13,14,15,16,17

Davis v. United States,

417 U.S. 333 (1974) 00 ne cece eee eee eee eee eeeee 17

Duncan v, Louisiana,

391 U.S. 145 (1968) 00. ce cece eee e eee teen nee n eee 12

Harris v. Nelson,

394 U.S. 286 (1969) . 0 eee eee e ete eben ete tnenees 15

Herman v. Claudy,

350) UESiil 16 CLOSG) is scewseman: 2 cece: ir ve xepnp ens wa 18 seme Tek RaKOEROR GE He eUCeED 14

Machibroda v. United States,

368 U.S. 487 (1962) «nce ix es mare Os SORE EN es RRR OS ie ORIEN aes MoE IRE He 14

Moorhead vy. United States,

456 F.2d 992, 996 (3d Cir. 1972) sisi sea soa earanars sie ars seavesamnnas ata ate Beate’ wa Wea BraHEETR OS 15

Raines v. United States,

423 F.2d 526 (4th Cir. ) ssa as ae was 08 oa me oe Oe CU REERN OX OL Wanna ON BA WUE . 15

Strickland v. Washington,

466 U.S. 668 (1984) ic we sce wiargiae 9g Kiearawe ox Oy HA UAN BM GS Wangan BH By Brana ay 11,13,16

Sullivan v. Louisiana,

508 U.S. 275 (1993) . sways aig sawn HE TE Biaelek s% He SwisUEA Ts He KE Weielae HS Kw ROBINS 11

United States v. Alvirez,

831 F.3d 1115 (9th Cir. 2016) .. . . sea ae ae Sesaw ow He Ha KERSS HE Us HOES OE Ks TNT SS 9

United States v. Broncheau,

597 F.2d 1260 (9th Cir.1979) 20 cc tence tenet eee ees 10

iv

United States v. Bruce,

394 F.3d 1215 (9th Cir. 2005) 00... ccc ete ee eee teen eee enes 8,10

United States v. Cruz,

554 F.3d 840 (9th Cir. 2009) 2... ce ce cece cee cece eee eueues 10,16

United States v. Gaudin,

515 U.S. 506 (1995) 0. cece ce ce ee te teen eee eeeneeeeneuees 12

United States v. Howard,

381 F.3d 873 (9th Cir, 2004) 2... ce ccc ce cece eee teen ene eeeneus 10

United States v. Lawrence,

51 F.3d 150 (8th Cir.1995) 20. ccc ee cere eee bene eeeeeueuns 10

United States v. Maggi,

598 F.3d 1073 (9th Cir. 2010) siseces on casan ine i teens it ce eeRR OA OS wR OS OS 8

United States v. McMullen,

98 F.3d 1155 (Sth Cir. 1996) sscssaca see nowavees 6s He Raw 1% GE HOw EGON UA SEIS ole wa’ 9

United States v. Ramirez,’

537 F.3d 1075 (9th Cir.2008) . ssa is ce canergn py pa CR UIER ov HE RECURS sie BoROR DE TE 10

United States v. Smith,

442 Fed. Appx. 282, 284 (9th Cir. 2011) 2.2... ec ce cee eee eee ee eees 6,9

United States v. Zepeda,

792 F.3d 1103 (9th Cir. 2015) (en banc) is sass sé 85 Be NSS SE NG HA HS ENE 5 Wd Riemer 8,9

Walters v. Harris,

460 F.2d 988 (4th Cir. 1972) 2... ccc ce ee ce ene e ee eeeeeenes 15

Washington v. Texas,

388 U.S. 14 (1967) 0. eee eee een eee eee eeeeeeeenees 12

Constitutional Provisions

U.S. Constitution, Article I, § 9, clause 2 s6 sspwwie ae hese 8% 1A BER SS OG BU V5, FG dis Hema 18

U.S. Constitution, Amendment V..... 0... 6c ce eee cece neue eeneuae 2,11,15

US. Constitution, Amendment VI isis cs ss wa ware 8a 0s Gatew BS GH BalstERE GE Ue Walw wr 2,11,13,15

Federal Statutes

18 U.S.C. § 10Qh saves ses waraiass ae wieracanvig inte Ae ah HO GOR SY Te BOM 6G BE HEROS SG NE ereRIOTE.s 3,4

18 US.C. § 1153... cece eee eee eee beet tere nerenaus 2,4,6,10

18 U.S.C. § 224 2iccmace as maareuern aos me SRCAUON OnE ae ree 8% RANE! A OS cw EME! EN By SUB 3,4

28 U.S.C. § 125 4aisa ie uemee SG Bs HERG ST WE We 4.08 6% tap wees ever con me epermem en tin wememen ¢ 2

28) WSC. S22 2G meacm ise SCO He Ke SEPRORMNRTET A SERONRON es HOMES Gn TemnENNNETE me SORKIN 2,14

28 ULS.C. § 225 Aansicce ics cawiane aie H% HEWN SS UE HA AWS He HARES SU HE Ne RESSWSG HE HENS 13,17

28 U.S.C. § 2255. cee cee tee eee eee e eee ee ten eeneeueeueenns passim

Other References

Advisory Committee Note to Rule 7, Rules Governing Habeas Corpus Cases,

28 U.S.C., p. 269 (1976 ed.) . .. . vanumsws 35 eewHe is OS Hae SE Be Re ROOREN NG UG HORS 15

2 J. Story, Commentaries on the Constitution of the United States

S41, n. 2 (4th ed. 1873) 2 ou wa wielnama OG Ie RE OS WEREROW HE BS RUMEN BU Fw 12

4 W. Blackstone, Commentaries on the Laws of England

343 (1769) .... 2. satiate He SG Bee NERS OF BG RESIN BE HE Seis ois Oy weer on ves 11,12

vi

IN THE UNITED STATES SUPREME COURT

BRANDON RAY BUCKLES,

PETITIONER,

VS.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner, BRANDON RAY BUCKLES, (hereinafter Buckles) respectfully prays that a

writ of certiorari issue to review the unpublished memorandum of the United States Court of

Appeals for the Ninth Circuit entered on May 12, 2020, affirming the district court’s order

summarily denying his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §

2255 without an evidentiary hearing.

OPINION BELOW

On May 12, 2020, the Ninth Circuit Court of Appeals entered an unpublished

memorandum affirming the district court’s order denying Buckles’ motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255. The unpublished memorandum is attached in

the Appendix (App.) at pages 1-4. This petition is timely.

JURISDICTION

The jurisdiction of this Court is invoked under Title 28, United States Code, Section

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the United States Constitution states in pertinent part: “[n]o

person shall ... be deprived of life, liberty, or property, without due process of law....” U.S.

Const., Amend. V.

The Sixth Amendment to the United States Constitution states in pertinent part: “[i]n all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury ... and to have the Assistance of Counsel for his defence.”

Const., Amend. VI.

Section 1153 of Title 18 of the United States Code states the following in pertinent part:

(a) Any Indian who commits against the person or property of

another Indian ... a felony under chapter 109A ... within Indian

country, shall be subject to the same law and penalties as other

persons committing any of the above offenses, within the exclusive

jurisdiction of the United States.

18 U.S.C. § 1153(a).

Section 2246 of Title 28 of the United States Code states the following in pertinent part:

On application for a writ of habeas corpus, evidence may be

taken orally or by deposition, or, in the discretion of the judge, by

affidavit. If affidavits are admitted any party shall have the right to

propound written interrogatories to the affiants, or to file answering

affidavits.

28 U.S.C.A. § 2246.

Section 2255 of Title 28 of the United States Code states the following in pertinent part:

(a) A prisoner in custody under sentence of a court established

by Act of Congress claiming the right to be released upon the

ground that the sentence was imposed in violation of the

Constitution or the laws of the United States, or that the Court was

without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court

shall cause notice thereof to be served upon the United States

attomey, grant a prompt hearing thereon, determine the issues and

make findings of fact and conclusions of law with respect thereto.

If the court finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not authorized by

law or otherwise open to collateral attack, or that there has been

such a denial or infringement of the constitutional rights of the

prisoner as to render the judgment vulnerable to collateral attack,

the court shall vacate and set the judgment aside and shall

discharge the prisoner or resentence him or grant a new trial or

correct the sentence as may appear appropriate.

28 U.S.C.A. § 2255(a) and (b).

STATEMENT OF THE CASE

On January 7, 2015, the government obtained a three count indictment charging Buckles

in the United States District Court for the District of Montana with one count of sexual abuse in

violation of 18 U.S.C. § 2242(2)(B), and two counts of making material false statements to the

Federal Bureau of Investigation (FBI) during the investigation in violation of 18 U.S.C. §

1001(a)(2).' The government alleged that the federal court had jurisdiction under 18 U.S.C. §

'18 U.S.C. § 2242(2)(b) states in pertinent part: “[w]hoever, in the special maritime and

territorial jurisdiction of the United States ... knowingly—... (2) engages in a sexual act with

another person if that other person is— (B) physically incapable of declining participation in, or

communicating unwillingness to engage in, that sexual act; ... or attempts to do so, shall be fined

3

1153(a), the Indian Major Crimes Act IMCA). App. 15-18. Buckles was convicted after a jury

trial on all three counts.’

Count I of the indictment alleged that Buckles was, “an Indian person” within the

meaning of the IMCA and “knowingly engaged in a sexual act with J.L.S.B,” on or about June

26, 2010, when she was incapable of consent. App 16. At close of evidence, the district court,

among other elements, instructed the jury that the government was required to prove beyond a

reasonable doubt that Buckles “was an Indian person.” App. 27. The district court also

instructed the jury that for Count III, charging a false statement, the government had to prove

Buckles made a false statement to “FBI Special Agent David Burns in a matter within the

jurisdiction of the FBI, an agency of the United States.” App. 28. The matter within the

jurisdiction of the FBI was an alleged violation of the IMCA. Thus, Indian status was an element

on all counts of conviction.

On appeal of the district court’s summary denial of his § 2255 motion, Buckles centered

on the elements in Counts I and III that required the government to prove that Buckles was “an

Indian person” at the time he committed the offenses in June of 2010. App. 2. In his § 2255

motion, Buckles alleged that trial counsel failed to investigate his status as a non-Indian. App.

34. He alleged that had trial counsel conducted such investigation, he could have put forward

under this title and imprisoned for any term of years or for life.”

18 U.S.C. 1001(a)(2) states in pertinent part: (a) ... “whoever, in any matter within the

jurisdiction of the executive, legislative, or judicial branch of the Government of the United

States, knowingly and willfully— ...(2) makes any materially false, fictitious, or fraudulent

statement or representation ... shall be ... imprisoned not more than 5 years.”

2 The district court vacated the conviction on Count II.

4

evidence that negated status as “an Indian person” at the time of the alleged offenses. App. 58-

59.

Before Buckles’ jury trial, his trial counsel entered into a stipulation with the

prosecution.’ App. 19-21. The filed stipulation does not contain Buckles’ signature. App. 21.

During the district court’s preliminary instructions to the jury, the district court read the

following stipulation to the jury:

Instruction Number 13. The parties have stipulated to the follow

(sic), that means they have agreed to the following facts: Number

1. The defendant, Brandon Ray Buckles, is an enrolled member of

the Assiniboine and Sioux Tribes of the Fort Peck Indian

Reservation. Number 2. The Assiniboine and Sioux Tribes are

federally-recognized tribes. Three. The defendant, Brandon Ray

Buckles, is an Indian person. No further evidence is required to

prove that the defendant is an Indian person. You should treat

these facts as having been proved.

App 25. The stipulation did not specify that Buckles was “an Indian person” at the time of the

alleged sexual abuse offense, which occurred nearly five years prior to Buckles’ trial. App. 19-

and 25. The district court did not discuss the stipulation with Buckles before it was entered into

the record at his jury trial. App. 25.

During trial, the district court admitted Government Exhibit 1. App. 30. Exhibit 1 is a

Certificate of Indian Blood for Buckles. /d. The certificate shows that Buckles has 3/16

quantum of blood with the Assiniboine and Sioux Tribes of Fort Peck. Jd. The certificate

includes an “Enrollment Status: Enrolled.” It includes an “Enrollment Number: 206-AM-

> The stipulation that Buckles was “an Indian person” was filed on April 1, 2015. App.

19. Trial commenced on June 1. 2015. App. 22.

5

001731.” Id.*

At the close of evidence, the district court reread the stipulation that Buckles was “an

Indian person” to the jury, stating, “[t]he parties have stipulated as follows: (1) “Buckles is an

enrolled member of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation;” (2)

“The Assiniboine and Sioux Tribes are federally recognized tribes;” and (3) Buckles “status as an

Indian person has been proven beyond a reasonable doubt. You should treat these facts as having

been proved.” App. 29. Again, the stipulation did not specify that Buckles was “an Indian

person” at the time of the alleged sex abuse offense in 2010. App. 20, 25, and 29.

Buckles’ § 2255 motion alleged that trial “[c]ounsel failed to appropriately investigate

[Indian] status.” App. 34. The motion alleged that “Buckles was not eligible for any benefits”

from the Tribes of Fort Peck. Id. It alleged Buckles “[w]as denied benefits [and] per capita

payments” and the Bureau of Indian Affairs, the “BIA did not recognize [him] as an Indian[,]

[and] Buckles blood quantum did not allow him to be a full member of the Tribe[s].” /d He

claimed “[c]ounsel was ineffective for stipulating that Buckles was an Indian for purposes of 18

US.C. § 1153.” Id.

In his memorandum with “Points and Authorities in Support” of his motion, Buckles

elaborated on his allegations. He alleged the following: (1) “he is not an Indian,” since he cannot

have full membership in the Assiniboine or Sioux tribes with only 3/16 blood quantum App. 55;°

(2) the “AM” in his enrollment number in the Certificate of Blood means “associate member”

* The “AM” in the number on the certificate means Associate Member. App. 56.

> See, United States v. Smith, 442 Fed. Appx. 282, 284 (9th Cir. 2011) (recognizing that a

quantum of at least 1/8 blood, but less than 1/4 blood permits “associate membership” in the

tribes.

App. 56; (3) Buckles “attempted to apply for benefits reserved for tribal members in 2011 and

was denied - as he was not an actual member of the Tribes and [not] eligible” Jd.; (4) “[i]n 2012

Buckles applied for per capita payment [of] ... $2500 reserved for Indians and again denied” Jd.;

(5) he was denied funds for medical treatment though the Tribes “since he was not a formal

member and not eligible to receive the benefit” App. 56-57; (6) “Buckles did not involve himself

in Indian social life” App. 57; (7) “Buckles did not participate in ‘sweats’” Jd; (8) Buckles did

not attend “‘pow-wows’” /d.; (9) Buckles did not vote, nor was he eligible to vote “in Tribal

affairs” Jd.; (10) Buckles did not “attend Tribal counsel meetings” /d.; and (11) North Dakota

state records from 2008 and the first Presentence Investigation Report for this case identified

666

Buckles’ race as ““white’ non-indian.” Jd.

Buckles alleged that he “advised defense counsel ... that he was not an Indian.” Jd. He

advised counsel that “he was denied per capita payments and denied formal enrollment” with the

Tribes. Buckles alleged that he told trial counsel that “he was denied government benefits

reserved for Indians[,] ... that he lived on and off the reservation and went to a public school

integrated with non-Indians.” Jd. He advised counsel “that he was denied assistance from the

tribal clinic.” App. 58.

Buckles alleged that he “did not agree with [counsel] stipulating to Indian status, did not

sign any papers stipulating to Indian status, nor [was he] consulted as to whether he would

authorize stipulating to Indian status.” App. 58. Buckles alleged that the district court did not

inquire as to whether he agreed with the stipulation, nor did the district court inquire of Buckles

whether “he agreed to waive the Government’s burden to prove ... an essential element of the

offense...” Jd.

Finally, Buckles re-alleged that trial counsel “was ineffective for stipulating that Buckles

was an Indian for purposes of the IMCA.” /d. He alleged that trial counsel “should have properly

investigated Buckles’ Indian status and challenged this contention at trial.” Jd Finally, Buckles

alleged that “but for [counsel’s] deficient performance there was a reasonable probability that the

outcome would have been different.” App. 59.

The district court did not order the government to answer Buckles’ § 2255 motion. The

district court did not seek any discovery from the parties, nor did it hold an evidentiary hearing

on Buckles’ motion. Instead, the district court summarily denied Buckles’ motion. App. 5-14.

At the time of Buckles’ trial, the test for determining Indian status was set forth in United

States v. Maggi, 598 F.3d 1073, 1080-81 (9th Cir. 2010);° and United States v. Bruce, 394 F.3d

1215, 1223-24 (9th Cir. 2005). App. 8. The test applied by the district court at the time of

Buckles’ trial to determine Indian status for IMCA purposes was as follows: (1) the defendant

had a quantum of Indian blood traceable to a federally recognized tribe; and (2) the defendant

was a member of, or was affiliated with, a federally recognized tribe. /d. (citing Maggi, 598 F.3d

at 1080-81; and Bruce, 394 F.3d at 1223-24).’

Buckles’ § 2255 motion challenged the second prong of the test. In denying his motion,

the district court wrote:

° Maggi was overruled in part by United States v. Zepeda, 792 F.3d 1103, 1106-07, 1113

(9th Cir. 2015) (en banc). Zepeda overruled Maggi only in so far as Maggi held that the

requirement that a tribe be federally recognized applied to both prongs of the two-part test to

determine Indian status. Zepeda clarified that proof of federal recognition of a tribe only applies

to the second prong. Jd. It was the second prong that was at issue before the Ninth Circuit, but

not the federal recognition aspect of the second prong. Buckles concedes that the Assiniboine

and Sioux Tribes of the Fort Peck Reservation were federally recognized tribes in 2010.

” Buckles agrees that he has “some [quantum of] Indian blood” under the first prong.

8

The certificate also satisfied the second prong of the test. In Smith,

the court considered whether an associate member of the Fort Peck Tribes

who had relinquished his membership years before trial nonetheless

qualified as an Indian. The court determined that evidence “that Smith at

one time enjoyed formal tribal enrollment,” even as an associate member,

was “the most important indicator of tribal recognition of a defendant’s

Indian status,” although he had altered his enrollment status. See Smith,

442 Fed. Appx. at 284.

App. 9 (citing United States v. Smith, 442 Fed. Appx. 282, 284 (9th Cir. 2011)).

The district court further stated, “[a]n enrolled tribal member, even one with fewer rights

and privileges than others, is by definition ‘affiliated with’ a tribe” ... [and] “the Ninth Circuit

may one day decide the second prong of the test requires a stronger affiliation than associate

membership in the Fort Peck Tribes.” Jd. The district court relied on Zepeda where the Ninth

Circuit upheld the defendant’s conviction under the IMCA. Jd. Zepeda held that evidence at

trial met both prongs of the test - the evidence consisted of an enrollment certificate and the

testimony from defendant’s brother that their father was an Indian. App. 9-10.

The district court essentially utilized Buckles’ Certificate of Indian Blood from the Tribes

(Government Exhibit 1) as conclusively establishing that Buckles’ was “entitled to no relief.” In

affirming the district court, the Ninth Circuit held,

The district court correctly rejected that argument. Certificates of

enrollment are important evidence of Indian status. See, e.g., id.;

Zepeda, 792 F.3d at 1115-16; United States v. Alvirez, 831 F.3d

1115, 1124 (9th Cir. 2016). And, this Court has previously decided

that an individual with the same enrollment status as Buckles, with

the same tribe, qualified as an Indian person. See United States v.

Smith, 442 F. App’x. 282, 284-85 (9th Cir. 2011). Accordingly,

Buckles’ trial counsel was not ineffective in making the strategic

decision to stipulate to the fact that Buckles is an “Indian person.”

See United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir.

1996). And, because the critical facts that informed counsel’s

decision are not contested, the trial court did not err in dismissing

this § 2255 motion without an evidentiary hearing. See United

States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004).

App. 3-4.

Ninth Circuit authority recognizes, however, that enrollment is just one factor of four that

courts consider when reviewing whether sufficient evidence establishes Indian status under the

IMCA, § 1153. Those factors are:

“in declining order of importance, evidence of the following: 1)

tribal enrollment; 2) government recognition formally and

informally through receipt of assistance reserved only to Indians; 3)

enjoyment of the benefits of tribal affiliation; and 4) social

recognition as an Indian through residence on a reservation and

participation in Indian social life.” /d. at 1224 (quoting United

States v. Lawrence, 51 F.3d 150, 152 (8th Cir.1995)); accord.

United States v. Ramirez, 537 F.3d 1075, 1082 (9th Cir.2008).

United States v. Cruz, 554 F.3d 840, 846 (9th Cir. 2009) (quoting Bruce, 394 F.3d at 1224)

In Cruz, the Ninth Circuit noted,

As Bruce itself makes clear, “[t]ribal enrollment is ‘the common

evidentiary means of establishing Indian status, but it is not the

only means nor is it necessarily determinative’ .... [E]nrollment,

and indeed, even eligibility therefor, is not dispositive of Indian

status.” 394 F.3d at 1224-25 (quoting United States v. Broncheau,

597 F.2d 1260, 1263 (9th Cir.1979)). Although the parties in

Ramirez raised only a limited question, the opinion specifically

acknowledges the Bruce test and the four applicable factors that are

determinative of its second prong. See Ramirez, 537 F.3d at 1082.

Because the dispute on appeal related to the facts underlying only

one of the factors, the court had no reason to note the relative

weight of the various other factors-specifically, that they are to be

considered “in declining order of importance.” Bruce, 394 F.3d at

1224.

554 F.3d at 846 n. 6.

10

Since tribal enrollment is not “necessarily determinative,” then Buckles would be entitled

to relief if after reviewing discovery or receiving evidence the district court determined that

counsel entered the stipulation without Buckles’ consent and evidence established a factual

defense that Buckles did not qualify as an “Indian person” within the meaning of IMCA as he

alleged in his § 2255 motion. Buckles alleged several factors that supported his claim that he did

not qualify as “an Indian person.” Indeed, the district court found that Buckles “reasonably could

have contested the issue of Indian status.” App. 9. The district court ultimately concluded that

trial counsel’s failure to investigate Buckles’ Indian status “was not unreasonable” under

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). App. 10.

REASONS FOR GRANTING THE WRIT

1. The question of whether a district court improperly dismisses a federal prisoner’s motion

to vacate, set aside or correct the sentence pursuant to § 2255 without an evidentiary hearing

where the prisoner alleges trial counsel stipulated to an element of the offense without the

prisoner’s consent and before investigating a meritorious defense presents a significant federal

question that should be addressed by the Court.

The Court has stated:

The Fifth Amendment to the United States Constitution

guarantees that no one will be deprived of liberty without “due

process of law”; and the Sixth, that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury.” We have held that these provisions require criminal

convictions to rest upon a jury determination that the defendant is

guilty of every element of the crime with which he is charged,

beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275,

277-278, 113 S.Ct. 2078, 2080-2081, 124 L.Ed.2d 182 (1993).

The right to have a jury make the ultimate determination of guilt

has an impressive pedigree. Blackstone described “trial by jury” as

11

requiring that “the truth of every accusation, whether preferred in

the shape of indictment, information, or appeal, should afterwards

be confirmed by the unanimous suffrage of twelve of [the

defendant's] equals and neighbors....” 4 W. Blackstone,

Commentaries on the Laws of England 343 (1769) (emphasis

added). Justice Story wrote that the “trial by jury” guaranteed by

the Constitution was “generally understood to mean ... a trial by a

jury of twelve men, impartially selected, who must unanimously

concur in the guilt of the accused before a legal conviction can be

had.” 2 J. Story, Commentaries on the Constitution of the United

States 541, n. 2 (4th ed. 1873) (emphasis added and deleted). This

right was designed “to guard against a spirit of oppression and

tyranny on the part of rulers,” and “was from very early times

insisted on by our ancestors in the parent country, as the great

bulwark of their civil and political liberties.” Jd., at 540-541. See

also Duncan v. Louisiana, 391 U.S. 145, 151-154, 88 S.Ct. 1444,

1448-1450, 20 L.Ed.2d 491 (1968) (tracing the history of trial by

jury).

United States v. Gaudin, 515 U.S. 506, 509-11 (1995).

In addition, criminal defendants’ right to present evidence and witnesses in’ their defense

at trial is as fundamental to due process as is the right to have the prosecution prove each element

of the offense beyond a reasonable doubt. Washington v. Texas, 388 U.S. 14, 19 (1967). In

Washington, the Court reiterated,

Id.

The right to offer the testimony of witnesses, and to compel

their attendance, if necessary, is in plain terms the right to present a

defense, the right to present the defendant’s version of the facts as

well as the prosecution's to the jury so it may decide where the

truth lies. Just as an accused has the right to confront the

prosecution's witnesses for the purpose of challenging their

testimony, he has the right to present his own witnesses to establish

a defense. This right is a fundamental element of due process of

law.

12

Finally, Sixth Amendment protections include criminal defendants’ right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). This right imposes a duty

on trial counsel to “make reasonable investigations.” Jd. at 690-91.

In 1977, the Court granted a petition for writ of certiorari under similar circumstances in

Blackledge v. Allison, 431 U.S. 63 (1977). The Court resolved the question of whether a federal

district court erred in failing to hold an evidentiary hearing before summarily denying a state

prisoner’s habeas corpus petition filed pursuant to 28 U.S.C. § 2254.

In Blackledge, the defendant claimed that during his state court criminal proceedings, his

trial counsel induced him to plead guilty by promising that the judge would impose a maximum

of 10 years in prison. He alleged that he was told by counsel that counsel had consulted with the

judge and prosecutor about the 10 year sentence. Instead of imposing 10 years, the sentencing

court imposed 17 to 21 years in prison. Jd. at 68-69.

The district court dismissed the petition without receiving any evidence and without

holding an evidentiary hearing. The district court relied on a form signed by the trial court judge

at the time of the guilty plea that “conclusively showed that [the defendant] had chosen to plead

guilty knowingly, voluntarily, and with full awareness of the consequences.” Jd. at 69-70.

The defendant in Blackledge claimed that the district court should have held an

evidentiary hearing before ruling on his petition. On appeal, the Fourth Circuit reversed and

remanded for an evidentiary hearing. Jd. at 70-71 (citing Allison v. Blackledge, 533 F.2d 894

(4th Cir. 1976)). The prison warden, Blackledge, filed a petition for writ of certiorari. The Court

“granted certiorari ... to consider the significant federal question.” Blackledge, 431 U.S. at 71.

13

The Court concluded that the defendant’s allegations in his petition “were not in

themselves so ‘vague and conclusory’ ... as to warrant dismissal for that reason alone.” Jd. at 75

(citing Machibroda v. United States, 368 U.S. 487, 495 (1962)). The Court further wrote:

Allison alleged as a ground for relief that his plea was induced by

an unkept promise. But he did not stop there. He proceeded to

elaborate upon this claim with specific factual allegations. The

petition indicated exactly what the terms of the promise were;

when, where, and by whom the promise had been made; and the

identity of one witness to its communication. The critical question

is whether these allegations, when viewed against the record of the

plea hearing, were so “palpably incredible,” ibid., so “patently

frivolous or false”, Herman v. Claudy, 350 U.S. 116, 119, 76 S.Ct.

223, 225, 100 L.Ed. 126, as to warrant summary dismissal. In the

light of the nature of the record of the proceeding at which the

guilty plea was accepted, and of the ambiguous status of the

process of plea bargaining at the time the guilty plea was made, we

conclude that Allison’s petition should not have been summarily

dismissed.

Blackledge, 431 U.S. at 75-76.

The Court then explained the process by which federal district courts may receive

evidence on habeas corpus petitions, short of a full evidentiary hearing. Jd. at 80. The Court

recognized that the warden may move for summary judgment under Federal Rule of Civil

Procedure 56. Such procedure would allow the defendant to respond, and provide the district

court a means to determine the existence of any “genuine issue of fact.” Jd. at 80-81.

The Court also recognized that existing rules of procedure permit district court’s to

receive evidence without a full evidentiary hearing. /d. at 81-82. Likewise, a district court may

receive evidence in a habeas corpus proceeding “taken orally or by deposition, or, in the

discretion of the judge, by affidavit.” 28 U.S.C. § 2246. The Court noted,

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There may be cases in which expansion of the record will provide

“evidence against a petitioner's extra-record contentions . . . so

overwhelming as to justify a conclusion that an (allegation of a

dishonored plea agreement) does not raise a substantial issue of

fact.” Moorhead v. United States, 456 F.2d 992, 996 (CA3). But

before dismissing facially adequate allegations short of an

evidentiary hearing, ordinarily a district judge should seek as a

minimum to obtain affidavits from all persons likely to have

firsthand knowledge of the existence of any plea agreement. See

Walters v. Harris, 460 F.2d, at 992. “ ‘When the issue is one of

credibility, resolution on the basis of affidavits can rarely be

conclusive, but that is not to say they may not be helpful.’”

Advisory Committee Note to Rule 7, Rules Governing Habeas

Corpus Cases, 28 U.S.C., p. 269 (1976 ed.), quoting Raines v.

United States, 423 F.2d 526, 530 (CA4).

Blackledge, 431 U.S. at 82 n. 25.

The Court affirmed the Fourth Circuit’s remand of the case to the district court. The

Court stated, “[i]n short, it may turn out upon remand that a full evidentiary hearing is not

required. But Allison is ‘entitled to careful consideration and plenary processing of (his claim,)

including full opportunity for presentation of the relevant facts.’” Blackledge, 431 U.S. at 82-83

(quoting Harris v. Nelson, 394 U.S. 286, 298 (1969)).

Buckles’ § 2255 motion and memorandum allege facts that, if proved, establish that trial

counsel’s actions and inactions denied him fundamental constitutional rights to a fair trial under

both the Fifth and Sixth Amendments. Buckles alleged that trial counsel entered a stipulation

with the prosecutor as to Indian status at trial without his consent, and without investigating facts

that Buckles provided to counsel that would negate status as “an Indian person.” App. 56-59.

As in Blackledge, Buckles went further and specifically alleged facts that necessitated

further evidentiary development in order to test the veracity and accuracy of the allegations. See,

App. 56-59; and Petition at 6-7, supra. Buckles alleged that he informed trial counsel of facts

15

that proved “he was not an Indian.” App. 57-58. Buckles alleged that trial counsel “advised him

that since he had some indian (sic) blood and lived on the reservation, the Government could

establish that he was an Indian.” App. 58. Buckles alleged that he “did not agree with [trial

counsel’s] stipulating to Indian status, did not sign any papers stipulating to Indian status, nor

[was he] consulted as to whether he would authorize stipulating to Indian status.” Jd. Buckles

alleged trial counsel “was ineffective for stipulating that Buckles was an Indian for purposes of

IMCA.” Id. As in Blackledge, Buckles’ motion, the files and records of his case do not

conclusively show he is entitled to no relief. 28 U.S.C. § 2255(b).

The district court did not seek evidence nor did the court provide Buckles an opportunity

to develop the record to support his factual allegations. Instead, the district court summarily

denied Buckles’ § 2255 motion, although the district court found that Buckles could have

reasonably challenged Indian status. App. 9.

The district court concluded that Ninth Circuit case-law, coupled with Buckles’ certificate

of Indian blood as an associate member of the Tribes of Fort Peck, establish that trial counsel’s

stipulation to Indian status, and his failure to investigate facts that negated Indian status, did not

fall outside the range of professional assistance, under the first prong in Strickland. App. 10.

(citing Strickland, 466 U.S. at 687-88, 694). In essence, the district court’s order finds that

Buckles “motion and the files and records of the case conclusively show that [Buckles] was

entitled to no relief.” 28 U.S.C. § 2255(b).

Ninth Circuit case law, however, also establishes that tribal enrollment is not “necessarily

determinative” of Indian status. Cruz, 554 F.3d at 846 n. 6. This supports the district court’s

view that Buckles could have challenged Indian status at trial. App. 9.

16

Buckles alleged that he attempted to have trial counsel investigate evidence that ran

contrary to Indian status. App. 57-58. Instead, trial counsel entered into a stipulation that

alleviated this defense at trial. App. 19-21. Only additional development of the record and

evidence could resolve Buckles’ allegations. Thus, the district court’s order summarily denying

Buckles’ § 2255 motion is squarely at odds with the Court’s decision in Blackledge.

Therefore, the Court should grant this petition to resolve the significant federal question.

2: This case is the ideal vehicle for the Court to resolve this significant federal question.

As in Blackledge, this petition raises a significant federal question that this Court should

address and resolve. This Court has not addressed this type of federal question since deciding

Blackledge. This case presents the Court with an ideal vehicle to reiterate the principal’s

announced in Blackledge, and to apply those principals in circumstances that protect the federal

constitutional rights of both federal and state prisoners in post-conviction proceedings under Title

28. See, Davis v. United States, 417 U.S. 333, 344-45 (1974) (“No microscopic reading of §

2255 can escape either the clear and simple language of § 2254 authorizing habeas corpus relief

‘on the ground that (the prisoner) is in custody in violation of the... laws... of the United

States’ or the unambiguous legislative history showing that § 2255 was intended to mirror § 2254

in operative effect.”). Resolution of this question will impact post-conviction proceedings

throughout the nation and serve as a current reminder to federal district courts the importance of

the writ of habeas corpus to the federal system of justice.

As the Court previously stated,

The writ of habeas corpus is the fundamental instrument

for safeguarding individual freedom against arbitrary and lawless

state action. Its pre-eminent role is recognized by the admonition

17

in the Constitution that: ‘The Privilege of the Writ of Habeas

Corpus shall not be suspended * * *.’ U.S.Const., Art. I, s 9, cl. 2.

The scope and flexibility of the writ—its capacity to reach all

manner of illegal detention—its ability to cut through barriers of

form and procedural mazes—have always been emphasized and

jealously guarded by courts and lawmakers. The very nature of the

writ demands that it be administered with the initiative and

flexibility essential to insure that miscarriages of justice within its

reach are surfaced and corrected.

Davis, 417 U.S. at 344.

Resolution of this significant federal question will promote a universal application of the

federal habeas corpus process. This case presents an ideal vehicle for the Court to accomplish

that end.

CONCLUSION

Based on the foregoing, it is requested that this Court grant this petition for writ of

certiorari.

Dated this 10th day of August, 2020.

Respectfully submitted, hen

Stephen R. Hormel

17722 East Sprague Avenue

Spokane Valley, WA 99016

Telephone: (509) 926-5177

Facsimile: (509) 926-4318

Attorney for Buckles

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Appendix