                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 1 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-5191
                                                     (D.C. No. 97-CV-416)
    BILLY GENE HARRIS,                                   (N.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.




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

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant seeks review of a district court order denying his 28 U.S.C.

§ 2255 motion to vacate his first-degree murder conviction. The district court

also denied a certificate of appealability under 28 U.S.C. § 2253(c). For

substantially the reasons stated at length in the district court’s order denying

relief, we likewise conclude that defendant has failed to make “a substantial

showing of the denial of a constitutional right,” and therefore deny his request for

a certificate of appealability and dismiss the appeal.

      Defendant was convicted of murdering an Osage Indian couple in their

home during the course of an armed robbery. His conviction was upheld against

several challenges on direct appeal, though an order for restitution was vacated

and remanded for reconsideration.    See United States v. Harris , No. 90-5028,

1992 WL 33210 (10th Cir. Feb. 21, 1992). The restitution order was reimposed

and then affirmed on a subsequent appeal.           See United States v. Harris , 7 F.3d

1537 (10th Cir. 1993). Thereafter, defendant filed a motion for a free transcript

to assist him in securing relief under § 2255. The district court denied the motion

because defendant failed to identify any non-frivolous § 2255 claims for which a

transcript was needed. This court affirmed.          See United States v. Harris ,

No. 94-5209, 1995 WL 394151 (10th Cir. July 5, 1995). Defendant followed with


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a motion under Fed. R. Crim. P. 41(e) for return of property seized at his

residence pursuant to a warrant executed on the day of his arrest. The district

court found the property in question had been stolen from the murder victims and

denied the motion. This court summarily affirmed.     See United States v. Harris ,

No. 96-5067, 1996 WL 494416 (10th Cir. Aug. 27, 1996).

      Finally, defendant filed the instant § 2255 motion asserting the following

grounds for relief:

      1.     The federal murder statute, 18 U.S.C. § 1111, did not apply to
             defendant’s conduct outside the special maritime and territorial
             jurisdiction of the United States;

      2.     The Indian country offense statute, 18 U.S.C. § 1153, did not apply
             to the conduct of defendant, a non-Indian;

      3.     Defendant’s charged offense did not take place on an Indian
             Reservation;

      4.     The location of defendant’s offense fell outside the constitutional
             jurisdiction of the United States;

      5.     The district court lacked jurisdiction over defendant’s offense;

      6.     The legislative powers of Congress do not reach defendant’s offense;

      7.     Defendant’s offense did not take place on allotment land or, if it did,
             that did not bring the offense within federal territorial jurisdiction;

      8.     The search of defendant’s home and his subsequent arrest were
             illegal;

      9.     There was no probable cause to search or arrest;

      10.    The indictment was defective in that it was based on illegally

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             procured evidence and alleged as crimes statutory violations which
             do not apply to defendant and over which the United States Courts
             lacked jurisdiction;

      11.    Defendant was detained, without probable cause and based on
             illegally obtained evidence, in constructive federal custody by the
             Osage County Sheriff for 27 days without arraignment;

      12.    Trial counsel afforded ineffective assistance.

      13.    Appellate counsel afforded ineffective assistance.

See R Vol. III docs. 184 & 185. After determining that an evidentiary hearing

was unnecessary, the district court issued a thorough order rejecting all of the

claims asserted by defendant.   See id. doc. 198.

      The district court grouped together the first seven issues, all of which

asserted jurisdictional deficiencies. As to the first two, the district court noted

the statutory basis for conviction (with 18 U.S.C. § 1152 substituted for § 1153)

had already been upheld on direct appeal.     See Harris , 1992 WL 33210, at **3.

This court’s decision on appeal had also confirmed the requisite location of the

offense: “The government established at trial that the alleged murders occurred

within Indian country as required under § 1152.”     Id. Defendant’s collateral

attack on this latter determination was properly rejected by the district court based

on BIA (Osage Agency) realty officer Royal E. Thornton’s affidavit, which

recounts the pertinent events in the chain of title and concludes that “the land is

and has been since its original allotment a restricted Indian title (Indian Country),


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one which has never been extinguished.” R. Vol. III, doc. 195 attachment;       see

United States v. Ramsey , 271 U.S. 467, 468, 470-72 (1926) (applying predecessor

of § 1152 to murder on restricted Osage allotment);     United States v. Burnett , 777

F.2d 593, 595-96 (10th Cir. 1985) (recognizing continuing vitality of       Ramsey for

restricted Osage allotments).     See generally Enlow v. Moore , 134 F.3d 993, 995

n.2 (10th Cir. 1998) (“Restricted allotments of Indian land constitute ‘Indian

country.’”). Finally, the district court correctly held defendant’s constitutional

objections to the exercise of federal jurisdiction over Indian lands were meritless

in light of long-settled precedent.   See Donnelly v. United States , 228 U.S. 243,

271-72 (1913); United States v. Kagama , 118 U.S. 375, 383-84 (1886));        see also

United States v. Houser , 130 F.3d 867, 872-73 (9th Cir. 1997),     cert. denied, 118

S. Ct. 2074 (1998).

       As for the non-jurisdictional search/seizure/arrest issues, the district court

noted these had not been raised on direct appeal and, thus, were procedurally

barred absent a showing of cause and prejudice or manifest injustice.       See United

States v. Frady , 456 U.S. 152, 164-68 (1982);    United States v. Cook , 45 F.3d 388,

392 (10th Cir. 1995). In light of defendant’s separate claim of ineffective

assistance of appellate counsel based in part on the omission of these issues from

his direct appeal, the district court considered whether they possessed such

evident merit that their omission would have constituted ineffective assistance,


                                            -5-
excusing the procedural default.       See Cook , 45 F.3d at 392. The court concluded

that they did not and were, therefore, barred. We agree. Defendant’s conclusory

assertions do not demonstrate that any issue belatedly raised in this § 2255

proceeding would have been the “dead-bang winner” required to excuse the

procedural default on direct appeal.      Id. at 394-95.

       Finally, the district court addressed and rejected, as stand-alone claims,

defendant’s allegations of ineffective assistance of trial and appellate counsel.

Again, we agree. Numerous motions in the district court file belie defendant’s

broad complaints about counsel inaction and, for the rest, defendant’s conclusory

assertions fall far short of satisfying the controlling performance-and-prejudice

test set out in Strickland v. Washington , 466 U.S. 668, 687 (1984).

       Defendant’s application for a certificate of appealability is DENIED, and

the appeal is DISMISSED.



                                                           Entered for the Court



                                                           Paul J. Kelly, Jr.
                                                           Circuit Judge




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