                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                    February 8, 2011
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 LEIGHTON FAY,

                Petitioner-Appellant,
                                                          No. 10-3225
 v.
                                                (D.C. No. 5:08-CV-03301-RDR)
                                                           (D. Kan.)
 CLAUDE CHESTER, Warden,
 USP-Leavenworth,

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Leighton Fay, a pro se federal prisoner incarcerated in Leavenworth,

Kansas, 1 appeals from the district court’s denial of his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2241. Exercising jurisdiction under


      *
             This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.

      After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Fay is proceeding pro se, we construe his filings
liberally. See, e.g., Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
28 U.S.C. §§ 1291 and 2253(a), we affirm.

                                BACKGROUND

      In 1981, Mr. Fay was convicted of four counts of assault resulting in

serious bodily injury, three counts of assault with a dangerous weapon, and one

count of assault by striking, beating, or wounding, and was acquitted of a count of

second-degree murder, in the United States District Court for the District of South

Dakota. See United States v. Fay, 668 F.2d 375, 377 (8th Cir. 1981). The district

court sentenced Mr. Fay to 45.5 years’ imprisonment. On direct appeal, the

United States Court of Appeals for the Eighth Circuit reversed Mr. Fay’s three

convictions for assault with a dangerous weapon. See id. at 378. This caused Mr.

Fay’s sentence to be reduced to 40.5 years’ imprisonment.

      Mr. Fay was released from custody on November 18, 2005; however, he

remained under the jurisdiction of the United States Parole Commission

(“Commission”) as if on parole, pursuant to 18 U.S.C. §§ 4163–64, until February

13, 2021. See R. at 181 (Certificate of Mandatory Release, dated Nov. 17, 2005).

On February 12, 2007, the Commission determined that Mr. Fay had violated his

parole, revoked Mr. Fay’s mandatory release, and continued Mr. Fay to the

expiration of his sentence. See id. at 189 (Notice of Action, dated Feb. 12, 2007).

Mr. Fay was scheduled for mandatory release in ten years. See id. at 187 (Hr’g

Summ., dated Jan. 23, 2007) (“[T]he subject has a mandatory release date after

the service of 120 months.”); see also id. at 157 (Sentencing Monitoring

                                        -2-
Computation Data, dated July 16, 2008) (calculating a September 19, 2016,

statutory release date).

      Mr. Fay filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241, which the district court denied. See Fay v. Chester, No.

5:08-CV-03301-RDR, 2010 U.S. Dist. LEXIS 87799 (D. Kan. Aug. 25, 2010).

Mr. Fay asserts three sets of claims before this court: (1) that the United States

lacked jurisdiction to set his parole and release dates because he is an American

Indian and the Sioux Nation is a sovereign; (2) that he is actually innocent of the

original charges from 1981, which underlie his parole; and (3) that the

Commission improperly considered a past accusation of criminal conduct, as well

as a charge of which Mr. Fay was acquitted, instead of requiring proof beyond a

reasonable doubt.

                                   DISCUSSION

I. United States’s Jurisdiction Over American Indians

       Mr. Fay asserts that he “is a[n] enrolled member of the Sioux Tribe . . .

and has maintained his Traditional standing in the Tribe with Traditional

Members.” Aplt. Opening Br. at 5a. Construing his appellate brief liberally, Mr.

Fay raises three grounds in support of his argument that the United States—more

specifically, the Commission—lacked jurisdiction over him because he is an

American Indian and the Sioux Nation is a sovereign: (1) the Major Crimes Act is

unconstitutional; (2) the Sioux Nation did not relinquish its sovereignty under the

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Fort Laramie Treaty of 1851; and (3) the Fourteenth Amendment recognizes

American Indian tribes as sovereigns. 2

      First, Mr. Fay argues that the Indian Major Crimes Act, 18 U.S.C. § 1153,

is unconstitutional. The Indian Major Crimes Act “authorizes the prosecution in

federal court of an Indian charged with the commission on an Indian reservation

of certain specifically enumerated offenses.” Keeble v. United States, 412 U.S.


      2
              Mr. Fay previously raised similar jurisdictional challenges in his
motions to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C.
§ 2255. See Fay v. Thornburgh, No. 91-3032, 1992 WL 63394 (D.S.D. Mar. 24,
1992); R. at 35 (Mem. Op., dated Apr. 23, 1986). Such challenges to the
jurisdiction of the convicting and sentencing court are properly brought pursuant
to 28 U.S.C. § 2255. See United States v. Furman, 112 F.3d 435, 438 (10th Cir.
1997). However, under a liberal construction, Mr. Fay’s jurisdictional challenges
also are cognizable under 28 U.S.C. § 2241 as challenges to the Commission’s
jurisdiction. Mr. Fay argues that he “had a ten year sentence illegally imposed by
the Parole Commission,” Aplt. Opening Br. at 2b, and repeatedly lodges
challenges to the jurisdiction of the “United States government,” see id. at 1, 2,
1a, 6a, not just to the jurisdiction of the court that convicted and sentenced him.

       Challenges “concerning good-time credit and parole procedure[] go to the
execution of sentence and, thus, should be brought against defendant’s custodian
under 28 U.S.C. § 2241.” Furman, 112 F.3d at 438. Accordingly, challenges to
the Commission’s jurisdiction are properly brought under 28 U.S.C. § 2241. See
Hutchings v. U.S. Parole Comm’n, 201 F.3d 1006, 1008 (8th Cir. 2000)
(affirming § 2241 denial where the petitioner claimed “that the Commission
lacked jurisdiction to revoke his parole”); Campos v. U.S. Parole Comm’n, 120
F.3d 49, 49 (5th Cir. 1997) (affirming § 2241 denial where the petitioner
“contend[ed] that . . . the Commission’s jurisdiction over him ended”); Martin v.
U.S. Parole Comm’n, 108 F.3d 1104, 1105 (9th Cir. 1997) (affirming § 2241
denial where the petitioner “asserted that the Commission d[id] not have
jurisdiction over him”); see also Roberts v. U.S. Dep’t of the Navy, 961 F.2d 220,
1992 U.S. App. LEXIS 6970, at *1 (10th Cir. 1992) (unpublished table decision)
(affirming § 2241 dismissal where the petitioner “contend[ed] that the United
States Parole Commission lack[ed] jurisdiction over him”).

                                          -4-
205, 205–06 (1973). Mr. Fay argues that the Indian Major Crimes Act is

unconstitutional because Ex parte Crow Dog, 109 U.S. 556 (1883), held that the

United States has no jurisdiction over the Sioux Nation or “Indian Country.” See

Aplt. Opening Br. at 1a, 5a–6a. Mr. Fay is incorrect. Ex parte Crow Dog held

“that a federal court lacked jurisdiction to try an Indian for the murder of another

Indian . . . in Indian country,” but “recogniz[ed] the power of Congress to confer

such jurisdiction on the federal courts.” Keeble, 412 U.S. at 209. “The Major

Crimes Act was passed by Congress in direct response to the decision of [the

Supreme] Court in Ex parte Crow Dog,” id. (emphasis added), and the Supreme

Court has upheld the constitutionality of the Indian Major Crimes Act, see id. at

n.9 (citing United States v. Kagama, 118 U.S. 375 (1886)).

      Second, Mr. Fay argues that the Fort Laramie Treaty of 1851, U.S.-Sioux,

Sept. 17, 1851, 11 Stat. 749, “is the only consen[s]ual and legal agreement under

the Constitution between the Sioux Nation and the United States Government, and

it spec[i]fically did not relinquish sovereignty or jurisdiction to United States

Government authorities.” Aplt. Opening Br. at 2. Mr. Fay further argues that 25

U.S.C. § 71 did not affect the Fort Laramie Treaty of 1851, and that any

abridgements or changes to the treaty would violate the Ex Post Facto Clause.

See id. at 3, 2a, 5a. However, Mr. Fay has not articulated how the Fort Laramie

Treaty of 1851 supports his argument that the United States lacked jurisdiction

over him. We decline to advance possible reasons for him. See DiCesare v.

                                          -5-
Stuart, 12 F.3d 973, 979 (10th Cir. 1993) (“[W]hile we hold pro se litigants to a

less stringent standard, it is not the proper function of the district court to assume

the role of advocate for the pro se litigant.”); Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991) (same); see also Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on the responsibility

of serving as the litigant’s attorney in constructing arguments and searching the

record.”). By failing to identify his “contentions and the reasons for them, with

citations to the authorities and parts of the record on which [he] relies,” as

required by Federal Rule of Appellate Procedure 28(a)(9)(A), Mr. Fay has

forfeited this claim. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.

2007) (“[W]e routinely have declined to consider arguments that are not raised, or

are inadequately presented, in an appellant’s opening brief.”).

      Third, Mr. Fay argues that the Fourteenth Amendment—by providing that

“[r]epresentatives shall be apportioned among the several States according to their

respective numbers, counting the whole number of persons in each State,

excluding Indians not taxed,” U.S. Const. amend. XIV, § 2—“recognizes the fact

that Indian Tribes with their own governments are sep[a]rate sover[e]igns.” Aplt.

Opening Br. at 3a. Mr. Fay further argues that the Indian General Allotment Act,

25 U.S.C. §§ 334–58, and 8 U.S.C. § 1401, which provides citizenship at birth,

are unconstitutional because they confer citizenship to American Indians by

statute, while “[l]egally it would take a Constitutional Amendment to effect a

                                          -6-
change regarding citizenship” for American Indians. Aplt. Opening Br. at 4a.

Mr. Fay has likewise forfeited this claim by failing to sufficiently present and

develop his argument. See Fed. R. App. P. 28(a)(9)(A); Bronson, 500 F.3d at

1104.

II. Actual Innocence

        Mr. Fay argues that he is actually innocent of the original charges from

1981 that underlie his parole. See Aplt. Opening Br. at 2b (“Appellant maintains

factual actual innocence . . . .”). The district court properly rejected Mr. Fay’s

actual innocence claim because “a petition for habeas corpus relief under § 2241

cannot be used to challenge the validity of a conviction.” Fay, 2010 U.S. Dist.

LEXIS 87799, at *6–7 (citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.

1996)). “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence

rather than its validity,” whereas a “28 U.S.C. § 2255 petition attacks the legality

of detention.” Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (quoting

Bradshaw, 86 F.3d at 166) (internal quotation marks omitted).

III. Commission’s Decision to Revoke Parole

        Mr. Fay next argues that he “had a ten year sentence illegally imposed by

the Parole Commission,” Aplt. Opening Br. at 2b, because the Commission

improperly failed to require “proof beyond a reasonable doubt[,] [which] marks

the legal boundary between guilt and innocence,” id. at 5. Mr. Fay argues that in

revoking his parole, the Commission improperly considered an allegation that Mr.

                                         -7-
Fay stabbed his wife in 1973, as well as the 1981 second-degree murder charge of

which he was acquitted.

      We review the Commission’s decisions deferentially:

             We will not disturb a decision by the Parole Commission unless
             there is a clear showing of arbitrary and capricious action or an
             abuse of discretion.       The inquiry is not whether the
             Commission’s decision is supported by the preponderance of the
             evidence, or even by substantial evidence; the inquiry is only
             whether there is a rational basis in the record for the
             Commission’s conclusions embodied in its statement of reasons.
             We do not reweigh evidence, make credibility determinations, or
             substitute our judgment for the Commission’s.

Gometz v. U.S. Parole Comm’n, 294 F.3d 1256, 1260 (10th Cir. 2002) (citations

omitted) (internal quotation marks omitted).

      In deciding to revoke parole, the Commission relied on Mr. Fay’s salient

factor score and severity of offense behavior. See R. at 190 (“Your parole

violation behavior has been rated as criminal conduct of Category Seven severity

because it involved Assault with Serious Bodily Injury. Your salient factor score

is 2.”). Mr. Fay does not appear to challenge the Commission’s calculation of his

salient factor score and severity of offense behavior. See Fay, 2010 U.S. Dist.

LEXIS 87799, at *16 (“The Parole Commission’s decision referenced the severity

of the parole violation, which petitioner does not contest . . . . Petitioner does not

contend that petitioner’s salient factor score would have been different if the

alleged false information had been ignored.”).

      “When the Board gives valid reasons for its decision, this court will not

                                          -8-
assume that the Board relied on possibly invalid factors.” Bloodgood v.

Garraghty, 783 F.2d 470, 475 (4th Cir. 1986); accord Phillips v. Brennan, 912

F.2d 189, 191–92 (7th Cir. 1990) (“[E]rroneous information in the record would

not taint a decision explicitly based on uncontested considerations.”). “[S]o long

as sufficient evidence was before [the] Parole Board to support its decision, its

actions are not an abuse of discretion.” Wildermuth v. Furlong, 147 F.3d 1234,

1236–37 (10th Cir. 1998) (citing Solomon v. Elsea, 676 F.2d 282, 290–91 (7th

Cir. 1982)).

      The Commission’s decision to revoke parole and continue Mr. Fay to the

expiration of his sentence is supported by a rational basis in the record.

Accordingly, we will not disturb the Commission’s decision.

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of Mr.

Fay’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.



                                        ENTERED FOR THE COURT



                                        Jerome A. Holmes
                                        Circuit Judge




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