                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 30 2002
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                              No. 01-6046 & 01-6166
                                                   (D.C. Nos. 00-CV-1083-L,
    SCOTTY M. SIMPSON,                                   98-CR-162-L)
                                                          (W.D. Okla.)
                 Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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.
       In case number 01-6046, Scotty M. Simpson appeals from the denial of his

motion for post-conviction relief brought under 28 U.S.C. § 2255; in case number

01-6166, he appeals from the district court’s order denying a certificate of

appealability (“COA”). We have consolidated the two cases for procedural

purposes, and because Mr. Simpson has not made “a substantial showing of the

denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2),”   Fisher v.

Gibson , 262 F.3d 1135, 1142 (10th Cir. 2001) (quotation omitted), we deny his

request for a COA and dismiss the appeals.

       Mr. Simpson, who is a member of the Ponca Indian Tribe, owned “smoke

shops” that he maintains were located within the jurisdiction of the Ponca Tribe.

In 1998, the Bureau of Alcohol, Tobacco and Firearms executed a federal search

warrant at Mr. Simpson’s residence (located next door to one of the smoke shops)

based on alleged violations of the Contraband Cigarette Trafficking Act

(“CCTA”), 18 U.S.C. §§ 2341-2346. During the search, officers seized at least

one semiautomatic rifle and boxes of ammunition. Mr. Simpson, who had a prior

felony conviction, was then indicted and prosecuted for violation of 18 U.S.C.

§ 922(g)(1) (felon in possession of a firearm).

       Mr. Simpson’s counsel filed a motion in limine raising the defense of

“public necessity” and a motion to suppress evidence based on alleged Fourth

Amendment violations, which were set for hearing the day jury selection for his


                                            -2-
trial was to begin. Before the hearings commenced, Mr. Simpson notified the

court that he wished to change his plea to guilty.   See R. Doc. 35. In exchange

for his plea and cooperation in other investigations regarding the transportation

and sale of unstamped cigarettes, the government agreed not to prosecute him for

any criminal violations under the CCTA and to provide the sentencing court

with a memorandum outlining the extent of his cooperation so that he could

obtain a sentencing reduction.     See id. Doc. 39, at 2-3, 6. The court granted

Mr. Simpson’s request for a two-level downward departure for acceptance of

responsibility in light of his cooperation and actions after pleading guilty.

       Mr. Simpson raises seven issues on appeal. The first six advance

substantive claims related to jurisdiction, to the indictment, and/or to events

allegedly occurring before he pleaded guilty: (1) the government lacked subject

matter jurisdiction to prosecute him because it did not obtain consent to do so

from the Ponca Tribe, he was prosecuted in violation of 18 U.S.C. § 3559(c)(6),

and federal laws do not extend to Indian Country; (2) the indictment failed to

state the essential element that he is a Ponca tribal member in Indian Country;

(3) the Assistant United States Attorney who prosecuted him violated his due

process rights by falsely threatening to indict his wife for violation of the CCTA

if he did not plead guilty to the firearm charge; (4) the prosecutor selectively

targeted and prosecuted Indian smoke shop owners for cigarette tax violations


                                             -3-
contrary to his right to equal protection; (5) the search warrants and affidavits

were insufficient and contained lies and omissions; and (6) the government

violated the Ponca Tribe’s sovereignty by serving search warrants and arresting

tribal members on Indian lands.

      He also claims that he received ineffective assistance of counsel, both

pretrial and at sentencing. He claims that pretrial assistance was ineffective

because (a) counsel failed to adequately research Indian law and federal

jurisdiction over tribal members in Indian Country; (b) counsel filed a petition

for remission or mitigation of forfeited property instead of filing a motion for

return of property under 18 U.S.C. § 41(e); (c) counsel failed to subpoena

Mr. Simpson’s family and friends, who were ready to testify about the total lack

of law and order in the community where Mr. Simpson lived; (d) counsel failed to

prepare for trial scheduled to begin on January 11, 1999; and (e) counsel coerced

him into pleading guilty.

      He claims that his counsel’s post-conviction assistance was ineffective

because (a) counsel failed to argue for a downward departure at sentencing on the

basis that Ponca Indians living in the Carbon Black Indian community had no law

and order and he needed a gun to protect his family; (b) counsel failed to impeach

a government witness at the sentencing hearing; (c) counsel advised him

incorrectly on acceptance of responsibility; (d) counsel failed to argue that a rifle


                                          -4-
found at his home was not an assault rifle; and (e) counsel failed to file his direct

appeal.

       We have carefully reviewed the record, the applicable law, and

Mr. Simpson’s contentions on appeal. For substantially the same reasons stated

in the district court’s order filed January 19, 2001, we reject Mr. Simpson’s

arguments related to his conviction and guilty plea, including his jurisdictional

arguments. See also United States v. Sands        , 968 F.2d 1058, 1060-61 (10th Cir.

1992) (affirming federal convictions of Creek Indian after guilty plea to violation

of § 922(g) while in Indian Country and holding that United States had

jurisdiction to prosecute);   United States v. Baker , 63 F.3d 1478, 1485 (9th Cir.

1995) (holding that CCTA applies to Indians selling or possessing unstamped

cigarettes on Indian lands notwithstanding treaty);      United States v. Wright ,

43 F.3d 491, 494 (10th Cir. 1994) (holding that guilty plea waives all

non-jurisdictional defenses, including due process claims);       United States v. Davis ,

900 F.2d 1524, 1525-26 (10th Cir. 1990) (holding that an unconditional guilty

plea waives Fourth Amendment claims).

       Further, when a petitioner “fails to raise an issue on direct appeal, he is

barred from raising the issue in a § 2255 proceeding, unless he establishes either

cause excusing the procedural default and prejudice resulting from the error or

a fundamental miscarriage of justice if the claim is not considered.”      United States


                                            -5-
v. Cox , 83 F.3d 336, 341 (10th Cir. 1996). Mr. Simpson admits that he was

a felon who possessed a firearm and his defense of necessity was waived by his

unconditional guilty plea. He has not made a colorable showing of factual

innocence, and thus cannot establish a fundamental miscarriage of justice.

See id. at 341.

      We also reject Mr. Simpson’s claims of ineffective assistance of counsel

for substantially the same reasons stated by the district court. In addition, we

note that Mr. Simpson’s claims of ineffectiveness not specifically addressed by

the district court are either irrelevant to his conviction and sentence or

substantively meritless. For example, a petition for remission of forfeited

property is the same as a motion under 18 U.S.C. § 41(e) for return of property

and does not relate to guilt, innocence, or sentencing and therefore is irrelevant to

his § 2255 motion. There is no need to subpoena defense witnesses who are

willing to appear at trial without a subpoena, and his claim that counsel was not

ready for trial on January 11 is conclusory and irrelevant since trial ultimately

was set for January 25. Arguments based on his necessity defense that was

rendered moot by his guilty plea were not relevant to sentencing, and his claim

that the government’s sentencing witness may have received some benefit for

testifying is conclusory. Counsel’s advice that, if he proceeded to trial, he would

not receive a two-point reduction for acceptance of responsibility was not


                                          -6-
incorrect, and Mr. Simpson in fact received the reduction because of his guilty

plea and cooperation. Whether the rifle he possessed was an assault rifle was

irrelevant because no enhancements were added at sentencing for the type of

firearm possessed. Finally, because Mr. Simpson agreed to an unconditional

guilty plea, there was no basis for filing a direct appeal. Because Mr. Simpson

has not made a substantial showing of the denial of a constitutional right, we

DENY his request for a COA and DISMISS his appeals. Appellant’s Motion to

Amend Certificate of Appealability is GRANTED.


                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




                                         -7-
