*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREW JOHN YELLOWBEAR,

JR.,

Petitioner-Appellant,

v.

ATTORNEY GENERAL OF THE

STATE OF WYOMING; SKIP

HORNECKER, in his official capacity

as Supervisor, Fremont County

Detention Center,

Respondents-Appellees.

NORTHERN ARAPAHO TRIBE,

 Amicus Curiae.

No. 09-8069

(D.C. No. 2:06-CV-00082-CAB)

(D. Wyo.)

ORDER AND JUDGMENT*

Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and

GORSUCH, Circuit Judge.

Andrew John Yellowbear, Jr., a Wyoming state prisoner, seeks federal

habeas relief under 28 U.S.C. § 2254 from his state conviction for the murder of

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his daughter. Mr. Yellowbear argues that the Wyoming state courts that heard his

case lacked jurisdiction because the crime occurred in a federal Indian

reservation. The Wyoming Supreme Court rejected this argument on direct

appeal, explaining that the land in question is not within an Indian reservation. 

Later, a federal district court denied Mr. Yellowbear’s § 2254 habeas petition

challenging this ruling. Today, we affirm the district court’s disposition.

* * *

Mr. Yellowbear was convicted of first degree murder in Wyoming state

court after he inflicted “repetitive, abusive, blunt-force injuries” that killed his

twenty-two-month-old daughter, Marcella Hope Yellowbear. Yellowbear v. State,

174 P.3d 1270, 1273 (Wyo. 2008). Throughout his state criminal proceedings,

Mr. Yellowbear argued that the events in question occurred in Riverton,

Wyoming, within the exterior boundaries of the Wind River Reservation. 

Accordingly, he submitted that Wyoming had no jurisdiction to try him in state

court.

The Wyoming state courts consistently rejected Mr. Yellowbear’s

jurisdictional argument. Ultimately, when the Wyoming Supreme Court took up

the question, it explained that a 1905 Act of Congress long ago diminished the

Wind River Reservation and that the current boundaries of the reservation do not

encompass the site of Mr. Yellowbear’s crime. Yellowbear, 174 P.3d at 1282-84.

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While his state case was unfolding, Mr. Yellowbear twice sought federal

habeas relief, but both petitions were legally defective. First, before his state trial

began, Mr. Yellowbear filed a § 2254 petition in federal district court. The

district court dismissed the petition because § 2254 relief is not available to preconviction prisoners and Mr. Yellowbear had not exhausted his claim in state

court. A panel of this court denied Mr. Yellowbear a certificate of appealability

for the same reasons. Yellowbear v. Wyo. Attorney Gen., 130 F. App’x 276, 277

(10th Cir. 2005). 

Second, while his state trial was ongoing, Mr. Yellowbear filed a § 2241

petition in federal district court. Because Mr. Yellowbear still had not exhausted

his claim, the district court denied his petition. By the time Mr. Yellowbear’s

appeal reached this court, however, the Wyoming Supreme Court had finally

adjudicated his criminal case, and so Mr. Yellowbear had become a postconviction prisoner and had exhausted his claim. In light of this, a panel of this

court remanded the case to allow Mr. Yellowbear to re-characterize his petition as

one under § 2254. Yellowbear v. Wyo. Attorney Gen., 525 F.3d 921 (10th Cir.

2008).

Back in the district court for the third time, Mr. Yellowbear pursued his

petition anew under § 2254. He urged the court to review his argument that his

crime had occurred on an Indian reservation not subject to state jurisdiction, and

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to do so de novo rather than under the more deferential review mandated by

§ 2254(d)(1). He also requested an evidentiary hearing pursuant to § 2254(e). 

The district court, however, rejected both requests, applied § 2254(d)(1),

and denied Mr. Yellowbear’s petition. The district court explained that under

§ 2254(d)(1), when a state court has “adjudicated” the petitioner’s claim “on the

merits,” a federal court may grant habeas relief only if the state court’s decision

“was contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court.” Applying this framework, the

district court first noted that Mr. Yellowbear had conceded the Wyoming Supreme

Court’s decision was not “contrary to” the relevant Supreme Court cases; it then

proceeded to hold that the Wyoming Supreme Court’s application of United States

Supreme Court precedents was not “objectively unreasonable.” Williams v.

Taylor, 529 U.S. 362, 409 (2000).

Following this decision, Mr. Yellowbear sought and the district court

granted him a certificate of appealability to challenge its holdings that: (1)

review of Mr. Yellowbear’s jurisdictional claim is constrained by § 2254(d)(1);

(2) Mr. Yellowbear was not entitled to habeas relief under § 2254(d)(1) because

the Wyoming Supreme Court’s decision was not “an unreasonable application of”

Supreme Court case law; and (3) Mr. Yellowbear was not entitled to an

evidentiary hearing under § 2254(e).

* * *

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1

 When identifying the issues presented for review in his opening brief,

Mr. Yellowbear fleetingly refers to the district court’s denial of his request for an

evidentiary hearing under § 2254(e). Beyond that, however, he makes no further

mention of the issue and so has waived the right to pursue the question. See

Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (White,

J., sitting by designation). Relatedly, we deny Mr. Yellowbear’s motion asking

this court to take judicial notice of a number of items pursuant to Federal Rule of

Evidence 201. Granting that motion would essentially afford Mr. Yellowbear the

evidentiary hearing the district court denied, without first requiring him to

address and overcome the district court’s reasons for refusing such a hearing.

Separately pending before this court is a motion by the Northern Arapaho

Tribe seeking leave to file an amicus brief. Because the Tribe possesses an

adequate interest and presents arguments that are useful to this court, we grant the

motion. 

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Before this court now, Mr. Yellowbear focuses his appeal on the district

court’s § 2254(d) holdings, urging us to review de novo whether the scene of his

crime lies within an Indian reservation and thus outside the reach of state

jurisdiction under 18 U.S.C. §§ 1151(a) and 1153, rather than review the question

through § 2254(d)(1)’s deferential lens.1

 In doing so, Mr. Yellowbear does not

appear to dispute that the Wyoming Supreme Court considered and rejected his

jurisdictional arguments. Neither does he dispute that the state supreme court’s

ruling constitutes an “adjudicat[ion]” of his “claim” on its “merits,” such that we

would ordinarily be able to overturn it only if one of § 2254(d)(1)’s conditions

are satisfied. Instead, Mr. Yellowbear appears to argue that, under the

Constitution’s Supremacy Clause, “[s]tate courts cannot rule on the extent of

federal jurisdiction.” Opening Br. at 14. Though it is not entirely clear from his

briefing, as best we can tell Mr. Yellowbear seeks to suggest that § 2254(d)(1) is

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2

 In deferring to the state court’s factual findings, Lambert noted that the

current version of § 2254(d) superseded a prior regime in which deference to state

proceedings did depend on an initial finding that the state court had jurisdiction. 

It acknowledged speculation by some commentators that courts might “read”

former requirements like this “back into” the new statute’s provisions governing

factual deference. Lambert, 387 F.3d at 238. But Lambert then proceeded to

explain that, by its plain terms, § 2254(d) “surely lower[s] the level of scrutiny a

federal court is entitled to apply to the issue of state court jurisdiction.” Id. 

Thus, Lambert’s reasoning on factual deference appears to support our conclusion

on legal deference. And, in any event, Mr. Yellowbear offers us no authority

permitting us to “read back into” § 2254(d) terms from a prior law that Congress

chose to supersede and that are inconsistent with the plain terms of the new law

Congress has adopted in its place. 

- 6 -

unconstitutional, at least as applied to him in this case, and so his appeal must be

reviewed de novo.

On this score, we have our doubts. Mr. Yellowbear has not cited a single

case establishing the rule he advances. To the contrary, the cases cited by the

parties have reviewed jurisdictional decisions by state courts using § 2254(d)’s

deferential standard of review. See, e.g., Burgess v. Watters, 467 F.3d 676, 681

(7th Cir. 2006); Lambert v. Blackwell, 387 F.3d 210, 238 (3d Cir. 2004) (noting

that § 2254(d) no longer predicates deference on a federal court’s de novo finding

of state court jurisdiction, and explaining that “a federal habeas court should

generally presume that the state court properly exercised its jurisdiction”).2

Under our federal system, moreover, there is nothing inherently suspect about

state courts deciding questions of federal law. State courts have done just this

“regularly and rightly . . . throughout our history.” In re C & M Props., L.L.C.,

563 F.3d 1156, 1167 (10th Cir. 2009). Indeed, the Supremacy Clause

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3

 To the extent that Mr. Yellowbear’s argument seems to rest on an

assumption that § 2254(d)(1) deprives him of any means for obtaining de novo

federal review of his jurisdictional arguments, it is mistaken for yet another

reason. The Supreme Court can generally review state court adjudications of

federal questions, see U.S. Const. art. III, § 2; 28 U.S.C. § 1257, and this direct

review, of course, is not constrained by § 2254(d)(1). So it is that Mr.

Yellowbear was free to — but, as far as we can tell, did not — seek de novo

Supreme Court review of the Wyoming Supreme Court’s adverse jurisdictional

ruling. Cf. Hagen v. Utah, 510 U.S. 399 (1994) (reviewing Utah Supreme Court’s

decision that Congress diminished Uintah Indian Reservation). And to the extent

that Mr. Yellowbear seems to worry that federal courts might be “bound” by state

court jurisdictional decisions, that concern also rests on a mistaken view of our

federal system. A state court’s decision on a federal question generally does not

preclude a federal court from subsequently reaching a contrary conclusion. See

Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007) (“It is beyond cavil that we

are not bound by a state court interpretation of federal law . . . .” (internal

(continued...)

- 7 -

contemplates that state courts will decide questions of federal law, and concurrent

jurisdiction has been the norm, not the exception, in our constitutional history. 

See U.S. Const. art. VI, cl. 2 (mandating that the “Judges of every State shall be

bound” by federal law); see also The Federalist No. 82, at 493 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) (“[T]he national and State systems are to

be regarded as ONE WHOLE. The courts of the latter will of course be natural

auxiliaries to the execution of the laws of the Union.”); William H. Rehnquist,

Seen in a Glass Darkly: The Future of the Federal Courts, 1993 Wis. L. Rev. 1, 7. 

For his part, Mr. Yellowbear advances no persuasive argument or authority before

this court suggesting that the Wyoming state courts’ concurrent jurisdiction

doesn’t include the power to decide whether federal statutes divest them of

criminal jurisdiction over the land in question.3

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3

(...continued)

quotation marks omitted)).

4

 Before us, Mr. Yellowbear seeks to raise two new arguments he hadn’t

pursued before. First, he argues that principles of issue preclusion barred the

Wyoming Supreme Court from reaching the conclusion it did. Second, he argues

that the site of his crime was an Indian allotment and thus “Indian country” under

18 U.S.C. § 1151(c). Various problems attend each of these arguments. It

suffices for current purposes, however, to note that Mr. Yellowbear failed to

present either argument to the state courts in his criminal proceedings. Under

§ 2254(b)(1)(A), the validity of which Mr. Yellowbear does not challenge, federal

courts are prohibited from granting writs of habeas corpus where, as here, the

applicant has not “exhausted the remedies available in the courts of the State.” 

Neither has Mr. Yellowbear sought to show that any exception to this exhaustion

requirement pertains in his case. See 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). 

- 8 -

In the end, however, whether we review the Wyoming Supreme Court’s

decision using § 2254(d)(1)’s deferential standard or de novo makes no difference

to the outcome of this case. Not only has Mr. Yellowbear failed to give us any

reason to think the Wyoming Supreme Court’s rejection of his jurisdictional

argument was an objectively unreasonable application of Supreme Court

precedent; he has also failed to give us any reason to think that decision was

incorrect. Neither, given the thorough and detailed attention the Wyoming

Supreme Court committed to the question, can we see anything that might be

gained by repeating its analysis here. Instead, we direct the reader to that court’s

careful exposition of the question, see Yellowbear, 174 P.3d at 1273-84, and

confirm that Mr. Yellowbear has not presented to this court any argument calling

into question the correctness of that decision.4

* * *

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The district court’s judgment is affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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