                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2037
                                   ___________

Gerald LeBeaux,                        *
                                       *
            Petitioner-Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
United States of America,              *
                                       *     [UNPUBLISHED]
            Respondent-Appellee.       *
                                  ___________

                             Submitted: January 13, 2006
                                Filed: January 31, 2006
                                 ___________

Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       Gerald LeBeaux1 (“LeBeaux”) appeals the district court’s decision denying
relief under 28 U.S.C. § 2255. Specifically, LeBeaux claims the district court2 erred
when it concluded he did not receive ineffective assistance of appellate counsel and
the 1868 Fort Laramie Treaty does not deprive the United States of subject matter
jurisdiction over his case. We affirm.

      1
       In his direct appeal to this court, LeBeaux spelled his name “LeBeau.” In this
appeal, however, he spells his name “LeBeaux.”
      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
                                    I. Background

       In May 2001, LeBeaux was indicted with his son, Neil LeBeaux, for possession
with intent to distribute cocaine and conspiracy to distribute cocaine. In October
2001, LeBeaux and his son were tried jointly before a jury in the United States District
Court for the District of South Dakota. The jury found both LeBeaux and his son
guilty of possession with intent to distribute cocaine. LeBeaux was sentenced to 120
months in prison.

     LeBeaux directly appealed his conviction to this court, arguing the evidence
was not sufficient to support the jury’s verdict. We affirmed. United States v.
Lebeau, 44 Fed. App. 63 (8th Cir. 2002).

        In August 2003, LeBeaux filed a pro se petition under 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence, raising eighteen issues. The district court
appointed counsel for LeBeaux and referred the matter to a magistrate judge3 pursuant
to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings and
submitting proposed findings of fact and recommendations to the district court. In
May 2004, an evidentiary hearing was held regarding LeBeaux’s ineffective assistance
of counsel claims. The magistrate judge heard testimony from a deputy United States
marshal and from the attorney who represented LeBeaux at trial and on direct appeal.
In August 2004, the magistrate judge recommended that LeBeaux’s petition be denied.
In February 2005, the district court denied LeBeaux’s petition for relief under § 2255
in its entirety.
        LeBeaux now appeals the district court’s denial of his § 2255 petition, arguing
the district court erred in concluding, first, that he did not receive ineffective
assistance of appellate counsel and, second, that the federal government had
jurisdiction over this case.

      3
        The Honorable Marshall P. Young, United States Magistrate Judge for the
District of South Dakota.

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                                     II. Analysis

      A.     Ineffective Assistance of Appellate Counsel

       We first turn to LeBeaux’s ineffective assistance of appellate counsel claim.
“A district court’s decision in a habeas claim of ineffective assistance of counsel
presents a mixed question of law and fact.” Covey v. United States, 377 F.3d 903, 906
(8th Cir. 2004). Our court reviews the ineffective assistance of counsel issue de novo,
“but findings of underlying predicate facts are reviewed for clear error.” Id. As noted
above, LeBeaux was represented by the same counsel at trial and on direct appeal. He
argues that his counsel’s performance on appeal “was so deficient as to deprive
LeBeaux of his right to appeal,” resulting in an unreliable outcome. According to
LeBeaux, his relationship with his counsel had “collapsed” before LeBeaux’s direct
appeal to the point that “no legitimate attorney-client relationship existed.” In
addition to the general allegations of ineffectiveness LeBeaux attributes to the
breakdown in attorney-client communication, he specifically asserts his appellate
counsel was ineffective because he (1) did not appeal the district court’s denial of
LeBeaux’s motion for severance; (2) did not appeal the court’s denial of LeBeaux’s
request that no flight instruction be given; (3) failed to raise evidentiary chain of
custody concerns; and (4) allowed evidence to be introduced at trial regarding the
possibility that LeBeaux had scabies.

       In order to prevail on an ineffective assistance of appellate counsel claim, a
defendant must establish his counsel’s representation was deficient and the deficiency
prejudiced the defense. Wiggins v. Smith, 539 U.S. 510, 522 (2003) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, a
petitioner must show his or her counsel’s representation “‘fell below an objective
standard of reasonableness.’” Wiggins, 539 U.S. at 522 (quoting Strickland, 466 U.S.
at 688). In the case at hand, after reviewing the record, the district court concluded
LeBeaux’s ineffective assistance of appellate counsel claims failed because LeBeaux
did not demonstrate his counsel’s conduct fell below an objective standard of


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reasonableness. The district court also stated LeBeaux had not shown that his defense
had been prejudiced. We agree. For the reasons articulated in the decisions of the
magistrate judge and the district court, we hold LeBeaux did not receive ineffective
assistance of appellate counsel on direct appeal.

      B.     Federal Jurisdiction

        We next address LeBeaux’s claim that the United States did not have
jurisdiction to prosecute him under the 1868 Fort Laramie Treaty (“Treaty”). This is
a question of subject matter jurisdiction, which we review de novo. United States v.
Lawrence, 51 F.3d 150, 152 (8th Cir. 1995). LeBeaux asserts the United States did
not have subject matter jurisdiction because “no notice was given to the tribe nor was
the tribe availed of the opportunity to surrender LeBeaux to the authority of the United
States.” Our court recently addressed this issue in United States v. Drapeau, 414 F.3d
869, 877 (8th Cir. 2005). In Drapeau, we held the Treaty does not deprive federal
courts of subject matter jurisdiction over federal drug trafficking cases. Id. at 878.
The same analysis applies here. Therefore, for the reasons articulated in Drapeau, we
reject LeBeaux’s claim that the United States lacked jurisdiction over this case.

                                    III. Conclusion

     For the foregoing reasons we affirm the district court’s decision denying all of
LeBeaux’s claims for relief under 28 U.S.C. § 2255. See 8th Cir. R. 47B.
                      ______________________________




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