                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 4 2002
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                              Nos. 01-7161 & 02-7025
                                                    (D.C. No. 01-CV-332-S)
    MICHAEL RAY CHEWEY,                                   (E.D. Okla.)

                 Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before KELLY and BALDOCK , Circuit Judges, and          BRORBY , Senior Circuit
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Proceeding pro se, petitioner Michael Ray Chewey separately appeals the

district court’s dismissal of his 28 U.S.C. § 2255 petition as well as the court’s

rejection of his request for a certificate of appealability (COA). Because he has

failed to make “a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), we too deny his request for COA, and we dismiss his

appeals.

       Chewey, who is an enrolled member of the Cherokee Indian Tribe, shot and

killed a fellow tribal member. Chewey pleaded guilty to one count of second

degree murder in Indian country and one count of discharge of a firearm during

a crime of violence.   See 18 U.S.C. §§ 924(c)(1(A)(iii), 1111, 1151, 1153. In

his habeas motion, he contends that the district court lacked subject matter

jurisdiction over him because the Cherokee Nation, on whose land the crime

occurred, had not consented to his prosecution. He also alleges that trial counsel

was constitutionally deficient for not raising this jurisdictional challenge and for

overlooking what Chewey claims is a meritorious Fourth Amendment issue.

       “‘Congress has . . . constitutional power to prescribe a criminal code

applicable in Indian country.’”   United States v. Prentiss , 256 F.3d 971, 974

(10th Cir. 2001) ( quoting United States v. Antelope , 430 U.S. 641, 648 (1977)).

Wielding this power, Congress has unequivocally granted the federal courts

jurisdiction to preside over the prosecution of certain crimes, including murder,


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committed by tribal members against other tribal members, provided the offense

occurs in what is statutorily defined as Indian country. 18 U.S.C. § 1153(a);    see

also 18 U.S.C. § 1151 (defining Indian country). Neither the text of the statute,

nor any case law interpreting it, conditions the exercise of federal jurisdiction on

obtaining tribal consent to prosecution. We therefore reject Chewey’s assertion

that the trial court lacked jurisdiction, and we similarly reject his contention that

counsel was ineffective for failing to challenge the court’s jurisdiction. There is

no merit, as well, to Chewey’s assertion that counsel was ineffective for failing to

raise a Fourth Amendment objection to the warrantless entry by police officers

into the Chewey home on the night of the murder.

       The request for COA is DENIED. The appeals are DISMISSED.


                                                        Entered for the Court



                                                        Wade Brorby
                                                        Senior Circuit Judge




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