STANDING BEAR v. U.S., 68 F.3d 271 (8th Cir. 1995)

LEROY CLIFFORD STANDING BEAR, ALSO KNOWN AS CLIFFORD LEROY STANDING BEAR, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE.

No. 95-1878.United States Court of Appeals, Eighth Circuit.Submitted October 6, 1995.
Decided October 20, 1995.

Page 272

Appellant was not represented by counsel.

Ted L. McBride, Assistant U.S. Attorney, Rapid City, South Dakota, for appellee.

Appeal from the United States District Court for the District Court of South Dakota.

Before McMILLIAN, BOWMAN, and MURPHY, Circuit Judges.

PER CURIAM.

[1] In 1993, Leroy Clifford Standing Bear was sentenced after pleading guilty to second degree murder within Indian country, a violation of 18 U.S.C. § 1153 and 1111 (1988), and use of a firearm in the commission of a crime of violence, a violation of 18 U.S.C. § 924(c)(1) (Supp. V 1993). In 1995, he filed a motion asking the District Court [1] to vacate his Section(s) 924(c)(1) conviction, on the ground that the jurisdiction conferred by 18 U.S.C. § 1153 over crimes occurring within Indian country does not extend to the firearm offense. The District Court summarily dismissed the motion, treating it as one under 28 U.S.C. § 2255 (1988 Supp. V 1993). Standing Bear appeals. [2] We will affirm the summary dismissal of a Section(s) 2255 motion without an evidentiary hearing only if, upon de novo
review, we are persuaded that the motion and “the files and records of the case conclusively show that [the prisoner] is entitled to no relief.” Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992) (quoting 28 U.S.C. § 2255). We conclude that Standing Bear was not entitled to Section(s) 2255 relief, because Section(s) 1153 conferred jurisdiction over the underlying felony of murder. See 18 U.S.C. § 1153
(creating jurisdiction over specifically enumerated crimes occurring within Indian country, including murder); United States v. Goodface, 835 F.2d 1233, 1238 (8th Cir. 1987) (affirming defendant’s conviction under Section(s) 924(c) where Section(s) 1153 created jurisdiction for underlying felony of assault with dangerous weapon). [3] We do not address Standing Bear’s arguments concerning the constitutionality of section 924(c)(1), which he raises for the first time on appeal. See Tramp v. United States, 978 F.2d 1055, 1056 (8th Cir. 1992) (per curiam); Norwest Bank Neb., N.A. v. W.R. Grace Co. — Conn., 960 F.2d 754, 757 (8th Cir. 1992). [4] Accordingly, we affirm the decision of the District Court.