FILED

United States Court of Appeals

Tenth Circuit

March 21, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREW JOHN YELLOWBEAR, JR.,

Petitioner-Appellant,

v.

WYOMING ATTORNEY GENERAL;

and SKIP HORNECKER, in his official

capacity as Fremont County Sheriff,

Respondents-Appellees.

No. 06-8064

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 06-CV-82-CAB)

Barry A. Bachrach of Law Office of Barry Bachrach, Leicester, Massachusetts,

for Petitioner-Appellant.

David L. Delicath, Senior Assistant Attorney General (Patrick J. Crank, Attorney

General, with him on the brief), of Office of Attorney General, State of Wyoming,

Cheyenne, Wyoming, for Respondents-Appellees.

Before HENRY, Chief Judge, SEYMOUR, and GORSUCH, Circuit Judges.

SEYMOUR, Circuit Judge.
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Andrew John Yellowbear, Jr., appeals the district court’s denial of his

habeas corpus petition filed under 28 U.S.C. § 2241. We reverse and remand for

further proceedings.

I

On July 2, 2004, Andrew John Yellowbear, Jr., an enrolled member of the

Northern Arapaho Tribe, was arrested and charged in state court with first-degree

murder in Riverton, Wyoming. Prior to trial, Mr. Yellowbear filed a pro se

petition in federal district court seeking a writ of habeas corpus under 28 U.S.C. §

2254. Mr. Yellowbear challenged the state court’s jurisdiction, asserting that

Riverton, Wyoming is located in “Indian Country,” over which the federal courts

have exclusive jurisdiction for serious federal crimes. See 18 U.S.C. §§ 1151,

1152. The district court denied Mr. Yellowbear’s petition, holding he failed to

state a claim because § 2254 is the habeas corpus procedure applicable once a

state prisoner has been convicted and wants to contest the legality of that

conviction. The court explained that pre-conviction relief was available to Mr.

Yellowbear under 28 U.S.C. § 2241, but that he must first exhaust his state

remedies.

Mr. Yellowbear filed a pro se appeal. Agreeing with the district court’s

conclusion that Mr. Yellowbear was unable to rely on § 2254, this court construed

the petition as one filed under § 2241. Because Mr. Yellowbear had not
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exhausted his state remedies, the court declined to grant a certificate of

appealability. See Yellowbear v. Hornecker, 130 F. App’x 276 (10th Cir. 2005)

(unpublished).

While awaiting trial, Mr. Yellowbear filed a counseled motion with the

state trial court asking for dismissal of the charges due to lack of jurisdiction. 

The court denied the motion. Again acting pro se, Mr. Yellowbear petitioned the

Wyoming Supreme Court for a writ of review and stay of the trial court

proceedings given his contention that the state court lacked jurisdiction. The

Wyoming Supreme Court summarily denied Mr. Yellowbear’s petition.

During his trial, Mr. Yellowbear filed the present pro se petition for federal

habeas corpus relief, this time under 28 U.S.C. § 2241, again asserting the state

court had no jurisdiction over him because the alleged crime was committed in

Indian Country. The federal district court dismissed the petition based on the

Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37 (1971). The

court directed Mr. Yellowbear to conclude his claims in state court before seeking

federal relief, stating that “[s]hould Mr. Yellowbear be unsuccessful at trial and

on direct appeal to the Wyoming Supreme Court, he can then bring his federal

claims before this court in a petition for habeas corpus relief pursuant to 28

U.S.C. § 2254.” Rec., vol. II at doc. 35, p.5.

In the meantime, a jury found Mr. Yellowbear guilty and he was sentenced

to life imprisonment. Mr. Yellowbear appealed. While that appeal was pending,
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Mr. Yellowbear brought this appeal from the federal district court’s denial of his

§ 2241 petition. We granted a certificate of appealability.

II

We review de novo a district court’s decision to abstain based on Younger. 

See Roe No. 2 v. Ogden, 253 F.3d 1225, 1232 (10th Cir. 2001). The district court

decision was based primarily on the fact that Mr. Yellowbear was required to

pursue his state court remedies before proceeding in federal court. In Mr.

Yellowbear’s appeal of his state conviction, the Wyoming Supreme Court held, as

relevant here, that the alleged crime did not occur in Indian Country as defined in

18 U.S.C. § 1151 and that state court jurisdiction was therefore proper. 

Yellowbear v. State, 174 P.3d 1270 (Wyo. 2008). Because this claim has now

been resolved in state court, the comity considerations which are the basis of

Younger abstention, see Younger, 401 U.S. at 44-45, are no longer applicable. 

Although the jurisdictional issue has now been decided by the state court,

this case remains in an unusual procedural posture. As we have noted, Mr.

Yellowbear brought this action under 28 U.S.C. § 2241. Section § 2241 is a

vehicle for challenging pretrial detention, see Walck v. Edmondson, 472 F.3d

1227, 1235 (10th Cir. 2007), or for attacking the execution of a sentence, see

Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). A § 2254 petition, on the

other hand, is the proper avenue for attacking the validity of a conviction and
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sentence. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). In its current

posture, Mr. Yellowbear’s claim that the state court lacked jurisdiction over him

is an attack on his conviction and sentence. His petition must therefore be

brought under § 2254. 

The issue of whether the state court properly exercised jurisdiction over

Mr. Yellowbear is an important federal constitutional question which Mr.

Yellowbear has diligently endeavored to bring before the federal court. Absence

of jurisdiction in the convicting court is indeed a basis for federal habeas corpus

relief cognizable under the due process clause. See, e.g., Danforth v. Minnesota,

128 S.Ct. 1029, 1036 (2008) (recognizing that, “[o]riginally, criminal defendants

whose convictions were final were entitled to federal habeas relief only if the

court that rendered the judgment under which they were in custody lacked

jurisdiction to do so.”); Lonchar v. Thomas, 517 U.S. 314, 322 (1996)

(recognizing in a § 2254 action that “the writ has evolved into an instrument that

now demands . . . conviction by a court of competent jurisdiction”); Thomas v.

Loney, 134 U.S. 372, 376 (1890) (“The courts of Virginia having no jurisdiction

of the matter of the charge on which the prisoner was arrested, and he being in

custody, in violation of the constitution and laws of the United States, . . . he was

rightly [] discharged by the circuit court on writ of habeas corpus.”); Lowery v.

Estelle, 696 F.2d 333, 337 (5th Cir. 1983) (“An absence of jurisdiction in the

convicting court is . . . a basis for federal habeas corpus relief cognizable under
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“An appellate court may give relief if state remedies are exhausted by the

time it acts, even if those remedies were not exhausted when the habeas corpus

petition was filed.” Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir. 1988)

(quotation and citation omitted).

2

Section 2255 is the statutory equivalent of § 2254 for federal prisoners. 

Davis v. United States, 417 U.S. 333, 344 (1974) (“§ 2255 was intended to mirror

. . . § 2254 in operative effect.”).

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the due process clause.”); United States ex rel. Herrington v. Mancusi, 415 F.2d

205, 208-09 (2d Cir. 1969) (“It has long been settled that habeas corpus relief is

available to a defendant convicted by a court without jurisdiction.”) (citations

omitted).

Given Mr. Yellowbear’s diligence in attempting to raise this constitutional

issue before the federal court, we would be inclined to recharacterize his § 2241

petition as a § 2254 petition and remand to the district court to address the issue

in the first instance.1

 See Castro v. United States, 540 U.S. 375, 377 (2003)

(recognizing long-standing practice of federal courts to treat request for habeas

relief under proper statutory section where pro se prisoner has labeled the petition

differently). But recharacterization involves “potential consequences with respect

to any § 2254 claim [a petitioner] may file in the future. AEDPA places strict

limitations on second or successive claims.” Davis, 425 F.3d at 835. For this

reason, in the context of a § 2255 petition,2

 the Supreme Court has said that,

the district court must notify the pro se litigant that it intends to

recharacterize the pleading, warn the litigant that this

recharacterization means that any subsequent § 2255 motion will be

subject to the restrictions on “second or successive” motions, and
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provide the litigant an opportunity to withdraw the motion or to

amend it so that it contains all the § 2255 claims he believes he has.

Castro, 540 U.S. at 383. We therefore remand the case to allow Mr. Yellowbear

to decide whether he wants to go forward with a § 2254 claim at this time.

In so doing, we note that construing Mr. Yellowbear’s petition as one

brought under § 2254 would not subject him to the second or successive claim

limitations of 28 U.S.C. § 2244(b)(1). Although Mr. Yellowbear’s first pro se

habeas petition was filed under § 2254, we recognized on appeal that it was more

properly characterized as a § 2241 petition because it was filed pretrial and not

while he was in custody pursuant to judgment of a state court. We agree with the

court in Jacobs v. McCaughtry, 251 F.3d 596, 597-98 (7th Cir. 2001), that where

the first habeas petition filed under § 2254 was properly recharacterized as a

§ 2241 petition because the defendant was a pre-trial detainee, the subsequent

filing of a § 2254 petition does not constitute a second or successive petition.

Accordingly, we REVERSE and REMAND this action to permit the

district court to provide Mr. Yellowbear the opportunity to recharacterize his §

2241 action as a § 2254 petition if he so chooses, and to conduct further

proceedings if Mr. Yellowbear decides to go forward with the petition as

recharacterized.