* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 4 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MICHAEL RAY CHEWEY,

Defendant-Appellant. Nos. 01-7161 & 02-7025 (D.C. No. 01-CV-332-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument.-2-

Proceeding pro se, petitioner Michael Ray Chewey se parately appeals the district court’s dismissal of his 28 U.S.C. § 2255 petition as well as the court’s rejection of his request for a certificate of appea lability (COA). Because he has failed to make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we too deny his request forCOA, and we dismiss his appeals. Chewey, who is an enrolled member of the Cherokee I ndian Tribe, shot and killed a fellow tribal member. Chewey pleaded guil ty to one count of second degree murder in Indian country and one count of di scharge of a firearm during a crime of violence. See 18 U.S.C. §§ 924(c)(1(A)(iii), 1111, 1151, 1153. I n his habeas motion, he contends that the district co urt lacked subject matter jurisdiction over him because the Cherokee Nation, on whose land the crime occurred, had not consented to his prosecution. He also alleges that trial counsel was constitutionally deficient for not raising this jurisdictional challenge and for overlooking what Chewey claims is a meritorious Fou rth Amendment issue. “‘Congress has . . . constitutional power to prescr ibe a criminal code applicable in Indian country.’” United States v. Prentiss , 256 F.3d 971, 974 (10th Cir. 2001) ( quoting United States v. Antelope , 430 U.S. 641, 648 (1977)). Wielding this power, Congress has unequivocally granted the federal courts jurisdiction to preside over the prosecution of certain crimes, including murder,-3-

committed by tribal members against other tribal me mbers, provided the offense occurs in what is statutorily defined as Indian country. 18 U.S.C. § 1153(a); see also 18 U.S.C. § 1151 (defining Indian country). Neith er the text of the statute, nor any case law interpreting it, conditions the ex ercise of federal jurisdiction on obtaining tribal consent to prosecution. We theref ore reject Chewey’s assertion that the trial court lacked jurisdiction, and we si milarly reject his contention that counsel was ineffective for failing to challenge th e court’s jurisdiction. There is no merit, as well, to Chewey’s assertion that couns el was ineffective for failing to raise a Fourth Amendment objection to the warrantle ss entry by police officers into the Chewey home on the night of the murder. The request for COA is DENIED. The appeals are DIS MISSED.

Entered for the Court

Wade Brorby Senior Circuit Judge