1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT LOGAN BERRY, JR., Case No. 3:16-cv-00470-MMD-WGC 7 Petitioner, ORDER v. 8 9 KYLE OLSEN,1 et al., 10 Respondents. 11 12 I. SUMMARY 13 Petitioner Robert Logan Berry, Jr., who pleaded no contest to attempted robbery 14 and was sentenced as a habitual criminal to ten years to life in Nevada state prison, filed 15 a petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter is before this 16 Court for adjudication of the merits of Berry’s counseled, amended petition, which alleges 17 a single ground for relief: his judgment of conviction is void because the State of Nevada 18 did not have jurisdiction over his crime. (ECF No. 24 (“Petition”).) For the reasons 19 discussed below, the Court denies the Petition and grants a Certificate of Appealability. 20 II. BACKGROUND 21 Fox Peak Station, a gas station in Churchill County, Nevada, is owned by the 22 Fallon Paiute-Shoshone Indian Tribe through its Fallon Tribal Development Corporation. 23 24 25 1The state corrections department’s inmate locator page states that Berry is 26 currently incarcerated at Warm Springs Correctional Center. The department’s website reflects that Kyle Olsen is the warden for that facility. At the end of this order, the Court 27 directs the Clerk of Court to substitute Berry’s current physical custodian, Kyle Olsen, as 1 (ECF Nos. 8-24 at 5; 23 at 2.) Berry, a non-Indian,2 was charged with “attempt[ing] to 2 rob Fox Peak by telling the clerk, Danny Luft Jr., to give him money or he would kill him 3 and at the same time putting his hand in his coat pocket simulating a hand gun and 4 pointing it at the clerk.” (ECF Nos. 8-19 at 2-3; 8-24 at 7.) Berry was arrested by the 5 Fallon Tribal Police after Luft, who was wielding a knife, chased Berry and tackled him 6 in the parking lot. (ECF No. 8-24 at 9, 14.) Officer Richard Babcock of the Fallon Paiute 7 Shoshone Tribal Police filed the criminal complaint against Berry in the Justice Court of 8 New River Township. (ECF No. 8-3.) 9 Before sentencing, Berry’s trial counsel challenged the State’s jurisdiction over 10 his crime, arguing that it fell within federal jurisdiction. (ECF No. 8-24 at 4-10.) The state 11 district court disagreed, finding that “Berry is not a Native American . . . and the victim 12 in this case,” who the state district court identified as being Luft, was not a Native 13 American. (Id. at 10.) Berry’s challenge to his conviction was denied on direct appeal. 14 (ECF No. 9-29.) 15 III. LEGAL STANDARD 16 28 U.S.C. § 2254(d)3 sets forth the standard of review generally applicable in 17 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 18 (“AEDPA”): 19 2This court uses the terms “Indian” and “non-Indian” in accordance with United 20 States Supreme Court caselaw. See, e.g., McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).
21 3Berry argues that 28 U.S.C. § 2254’s purported restrictions on the power of the 22 federal judiciary to enforce federal law is unconstitutional. (ECF No. 40 at 16.) Berry argues: (1) 28 U.S.C. § 2254(d) “violates § 1 of the Fourteenth Amendment and the Due 23 Process Clause of the Fifth Amendment, by depriving citizens in state custody of their fundamental right to meaningful federal review of the federal legality of their state 24 detention”; (2) 28 U.S.C. § 2254(d) “unlawfully suspend[s] the writ of habeas corpus, in violation of Article I, § 9, cl. 2”; and (3) 28 U.S.C. § 2254(d) “unlawfully impinge[s] on the 25 judicial power vested exclusively in the judiciary by Article III of the Constitution.” (Id. at 26 1617 (emphases in original).) Regarding his first argument—28 U.S.C. § 2254(d) violates the Fourteenth and Fifth Amendments—Berry argues that 28 U.S.C. § 2254(d) requires 27 federal courts to defer to the state court’s interpretation of federal law, meaning that in 1 An application for a writ of habeas corpus on behalf of a person in custody 2 pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 3 unless the adjudication of the claim -- 4 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 5 determined by the Supreme Court of the United States; or 6 (2) resulted in a decision that was based on an unreasonable 7 determination of the facts in light of the evidence presented in the State court proceeding. 8 9 A state court decision is contrary to clearly established Supreme Court precedent, within 10 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 11 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 12 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 13 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 14 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 15 is an unreasonable application of clearly established Supreme Court precedent within 16 the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing 17 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 18 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). 19 “The ‘unreasonable application’ clause requires the state court decision to be more than 20 incorrect or erroneous. The state court’s application of clearly established law must be 21 objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation 22 omitted). 23 24 often required to “stay its hand and deny relief.” (Id. at 24.) The Court finds that this 25 argument lacks merit. Although not discussed in the context of the Fourteenth and Fifth Amendments, the Ninth Circuit has stated generally that “[t]he constitutional foundation 26 of § 2254(d)(1) is solidified by the Supreme Court’s repeated application of the statute.” Crater v. Galaza, 491 F.3d 1119, 1129 (9th Cir. 2007). And because Berry admits the 27 Ninth Circuit has rejected his latter two arguments (ECF No. 40 at 17), the Court declines 1 The Supreme Court has instructed that “[a] state court’s determination that a 2 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 3 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 4 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT LOGAN BERRY, JR., Case No. 3:16-cv-00470-MMD-WGC 7 Petitioner, ORDER v. 8 9 KYLE OLSEN,1 et al., 10 Respondents. 11 12 I. SUMMARY 13 Petitioner Robert Logan Berry, Jr., who pleaded no contest to attempted robbery 14 and was sentenced as a habitual criminal to ten years to life in Nevada state prison, filed 15 a petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter is before this 16 Court for adjudication of the merits of Berry’s counseled, amended petition, which alleges 17 a single ground for relief: his judgment of conviction is void because the State of Nevada 18 did not have jurisdiction over his crime. (ECF No. 24 (“Petition”).) For the reasons 19 discussed below, the Court denies the Petition and grants a Certificate of Appealability. 20 II. BACKGROUND 21 Fox Peak Station, a gas station in Churchill County, Nevada, is owned by the 22 Fallon Paiute-Shoshone Indian Tribe through its Fallon Tribal Development Corporation. 23 24 25 1The state corrections department’s inmate locator page states that Berry is 26 currently incarcerated at Warm Springs Correctional Center. The department’s website reflects that Kyle Olsen is the warden for that facility. At the end of this order, the Court 27 directs the Clerk of Court to substitute Berry’s current physical custodian, Kyle Olsen, as 1 (ECF Nos. 8-24 at 5; 23 at 2.) Berry, a non-Indian,2 was charged with “attempt[ing] to 2 rob Fox Peak by telling the clerk, Danny Luft Jr., to give him money or he would kill him 3 and at the same time putting his hand in his coat pocket simulating a hand gun and 4 pointing it at the clerk.” (ECF Nos. 8-19 at 2-3; 8-24 at 7.) Berry was arrested by the 5 Fallon Tribal Police after Luft, who was wielding a knife, chased Berry and tackled him 6 in the parking lot. (ECF No. 8-24 at 9, 14.) Officer Richard Babcock of the Fallon Paiute 7 Shoshone Tribal Police filed the criminal complaint against Berry in the Justice Court of 8 New River Township. (ECF No. 8-3.) 9 Before sentencing, Berry’s trial counsel challenged the State’s jurisdiction over 10 his crime, arguing that it fell within federal jurisdiction. (ECF No. 8-24 at 4-10.) The state 11 district court disagreed, finding that “Berry is not a Native American . . . and the victim 12 in this case,” who the state district court identified as being Luft, was not a Native 13 American. (Id. at 10.) Berry’s challenge to his conviction was denied on direct appeal. 14 (ECF No. 9-29.) 15 III. LEGAL STANDARD 16 28 U.S.C. § 2254(d)3 sets forth the standard of review generally applicable in 17 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 18 (“AEDPA”): 19 2This court uses the terms “Indian” and “non-Indian” in accordance with United 20 States Supreme Court caselaw. See, e.g., McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).
21 3Berry argues that 28 U.S.C. § 2254’s purported restrictions on the power of the 22 federal judiciary to enforce federal law is unconstitutional. (ECF No. 40 at 16.) Berry argues: (1) 28 U.S.C. § 2254(d) “violates § 1 of the Fourteenth Amendment and the Due 23 Process Clause of the Fifth Amendment, by depriving citizens in state custody of their fundamental right to meaningful federal review of the federal legality of their state 24 detention”; (2) 28 U.S.C. § 2254(d) “unlawfully suspend[s] the writ of habeas corpus, in violation of Article I, § 9, cl. 2”; and (3) 28 U.S.C. § 2254(d) “unlawfully impinge[s] on the 25 judicial power vested exclusively in the judiciary by Article III of the Constitution.” (Id. at 26 1617 (emphases in original).) Regarding his first argument—28 U.S.C. § 2254(d) violates the Fourteenth and Fifth Amendments—Berry argues that 28 U.S.C. § 2254(d) requires 27 federal courts to defer to the state court’s interpretation of federal law, meaning that in 1 An application for a writ of habeas corpus on behalf of a person in custody 2 pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 3 unless the adjudication of the claim -- 4 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 5 determined by the Supreme Court of the United States; or 6 (2) resulted in a decision that was based on an unreasonable 7 determination of the facts in light of the evidence presented in the State court proceeding. 8 9 A state court decision is contrary to clearly established Supreme Court precedent, within 10 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 11 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 12 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 13 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 14 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 15 is an unreasonable application of clearly established Supreme Court precedent within 16 the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing 17 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 18 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). 19 “The ‘unreasonable application’ clause requires the state court decision to be more than 20 incorrect or erroneous. The state court’s application of clearly established law must be 21 objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation 22 omitted). 23 24 often required to “stay its hand and deny relief.” (Id. at 24.) The Court finds that this 25 argument lacks merit. Although not discussed in the context of the Fourteenth and Fifth Amendments, the Ninth Circuit has stated generally that “[t]he constitutional foundation 26 of § 2254(d)(1) is solidified by the Supreme Court’s repeated application of the statute.” Crater v. Galaza, 491 F.3d 1119, 1129 (9th Cir. 2007). And because Berry admits the 27 Ninth Circuit has rejected his latter two arguments (ECF No. 40 at 17), the Court declines 1 The Supreme Court has instructed that “[a] state court’s determination that a 2 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 3 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 4 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 5 Supreme Court has stated “that even a strong case for relief does not mean the state 6 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 7 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as 8 a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, 9 which demands that state-court decisions be given the benefit of the doubt”) (internal 10 quotation marks and citations omitted). 11 IV. DISCUSSION 12 In ground 1, Berry alleges that his judgment of conviction is void as a matter of 13 federal law because the United States, rather than the State of Nevada, had jurisdiction 14 over his crime, which was committed in Indian country. (ECF No. 24 at 5.) The United 15 States has jurisdiction over public offenses committed in Indian country unless an 16 exception applies. See 18 U.S.C. § 1152. 17 A. Consent exception for state jurisdiction under Public Law 280 18 In 1953, Congress passed Public Law 280 (“Public Law 280”), which gave “[t]he 19 consent of the United States” to States, including Nevada, “not having jurisdiction with 20 respect to criminal offenses [by or against Indians in Indian country,] . . . to assume 21 jurisdiction at such time and in such manner as the people of the State shall, by 22 affirmative jurisdiction action, obligate and bind the State to assumption thereof.” Pub. 23 L. No. 280, 67 Stat. 590 (1953). In 1955, Nevada enacted its first version of NRS § 24 41.430, in which it assumed “jurisdiction over public offenses committed by or against 25 Indians in the area of Indian country in Nevada” except for areas of Indian country that 26 the Nevada governor excluded by proclamation. See 1955 Nev. Stat., ch. 198, §§ 1, 2, 27 1 3, at 297. Importantly, the Nevada governor excluded Churchill County from the 2 provisions of its first version of NRS § 41.430. (ECF No. 13-5 at 5.4) 3 In 1968, Congress enacted 25 U.S.C. § 1321. See Pub. L. No. 90-284, 82 Stat. 4 78 (1968). This statute did not affect Public Law 280 jurisdiction for states that had 5 already assumed jurisdiction. However, from that date forward, the law required Indian 6 tribes to consent, through a special election,5 before a state could assume jurisdiction 7 over crimes committed by and against Indians in Indian country. See 25 U.S.C. § 8 1321(a)(1). The new law also allowed states to retrocede Public Law 280 jurisdiction. 9 See 25 U.S.C. § 1323. 10 In 1973, Nevada amended NRS § 41.430 to its current form. See 1973 Nev. Stat., 11 ch. 601, § 1, at 1051. NRS § 41.430(1) provides that “the State of Nevada . . . assume[s] 12 jurisdiction over public offenses committed by or against Indians in the area of Indian 13 country in Nevada . . . subject only to the conditions of subsection 3 and 4.” Importantly, 14 NRS § 41.430(4) provides that “the State of Nevada . . . recedes from and relinquishes 15 jurisdiction over any” area “within th[e] state wherein the Indian tribe occupying any such 16 area has failed or refused to consent to the continuation of state jurisdiction.” 17 Thus, at the relevant time, Nevada only had jurisdiction over crimes committed 18 by or against Indians in Indian country if the tribe occupying the area had given consent. 19 The parties do not appear to dispute that the Fallon Paiute-Shoshone Tribe did not give 20 prior consent to Nevada assuming jurisdiction over its territory. Consequently, by its 21 terms, this consent exception for state jurisdiction does not apply. 22 /// 23 /// 24
4The Court takes judicial notice of this public record because it is not in dispute. 25 See, e.g., Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011). 26 525 U.S.C. § 1326 provides that “[s]tate jurisdiction . . . shall be applicable to Indian 27 country only where the enrolled Indians within the affected area of such Indian country 1 B. McBratney Non-Indian exception for state jurisdiction 2 Nevada has jurisdiction over state-law crimes that non-Indians commit in Indian 3 country against non-Indians within the State of Nevada. See United States v. 4 McBratney, 104 U.S. 621, 624 (1882); see also McGirt v. Oklahoma, 140 S.Ct. 2452, 5 2460 (2020) (reaffirming McBratney by explaining that “nothing we might say today 6 could unsettle Oklahoma’s authority to try non-Indians for crimes against non-Indians 7 on the lands in question”). 8 C. State court determination 9 In affirming Berry’s judgment of conviction, the Nevada Supreme Court held:
10 Appellant’s conviction stems from his attempted robbery of a store 11 clerk at the Fox Peak Station in Fallon. He argues that the district court erred by overruling his objection that the State lacked jurisdiction over the offense 12 because it was committed on Indian land at an Indian-owned business.
13 NRS 41.430(1) provides that the State of Nevada “assumes jurisdiction over public offenses committed by or against Indians in the 14 areas of Indian country in Nevada.” That provision does not apply, however, 15 to any area of Indian country where the occupying Indian tribe has not consented to the State’s jurisdiction over that area. NRS 41.430(4). 16 Appellant argues that because the State has not provided an agreement between the tribe that owns Fox Peak Station and the State that allows 17 Churchill County to retain jurisdiction, the United States has jurisdiction over the offense. Appellant’s claim lacks merit for two reasons. First, NRS 41.430 18 is not at issue because neither appellant nor the store clerk is Indian. We 19 reject appellant’s contention that the tribal members, as owners of Fox Peak Station, were victims of the attempted robbery. See NRS 200.380(1) 20 (defining robbery, in pertinent part, as “the unlawful taking of personal property from the person of another, or in the presence, against his or her 21 will, by means of force or violence . . . ”); see also NRS 193.330(1) (defining attempt). Second, even assuming that NRS 41.430 applies, where the 22 record shows that the offense occurred in Churchill County, appellant had 23 the burden to show that the offense occurred on lands over which the United States has exclusive jurisdiction. See Pendleton v. State, 103 Nev. 95, 99, 24 734 P.2d 693, 695 (1987) (“The defendant has the burden of showing the applicability of negative exceptions in jurisdictional statutes.”). Because 25 appellant failed to demonstrate that the district court erred in this regard, we ORDER the judgment of conviction AFFIRMED. 26 27 (ECF No. 9-29 at 2-3.) 1 Berry argues that this ground should be reviewed de novo because, inter alia, the 2 Nevada Supreme Court treated his claim as a state-law issue, rather than a federal-law 3 issue. (ECF No. 40 at 51-54.) The Court noted in its previous order that the Nevada 4 Supreme Court’s analysis did not account for a few federal-law issues, as it “left unstated 5 the multiple steps of federal law that it needed to analyze before determining that the 6 state courts had jurisdiction.” (ECF No. 34 at 5, 8.) However, the Court later noted that 7 it could not “say that the Nevada Supreme Court ruled on an issue solely of state law 8 when that state law itself implements federal law.” (Id. at 10 (explaining that “[t]he current 9 version of § 41.430 cites to and implements the federal statutes that allow states to 10 assume jurisdiction over criminal and civil actions in Indian country with the consent of 11 the Indian tribes”).) Based on the state law’s implementation of federal law, the Court 12 determines that Berry has not rebutted the strong presumption that the Nevada 13 Supreme Court adjudicated the federal claim on the merits. See Johnson v. Williams, 14 568 U.S. 289, 301 (2013) (“When a state court rejects a federal claim without expressly 15 addressing that claim, a federal habeas court must presume that the federal claim was 16 adjudicated on the merits.”). The Court, therefore, reviews ground 1 under AEDPA’s 17 deferential standard of review.6 18 D. Conclusion 19 The parties do not dispute that Berry is a non-Indian and do not appear to dispute 20 that Fox Peak Station is part of Indian country.7 Thus, the applicable question under 21 McBratney is whether Berry’s crime was committed against an Indian or a non-Indian. 22 6Berry also contends that the Nevada Supreme Court’s decision was based on an 23 unreasonable determination of the facts because it “assumed the existence of tribal consent to Public Law 280 jurisdiction in the absence of evidence.” (ECF No. 40 at 55.) 24 The Court disagrees. The Nevada Supreme Court was merely discussing the burden of proof regarding jurisdiction in response to Berry’s argument that the State had the burden 25 of proving consent. 26 7Indian country is defined as “(a) all land within the limits of any Indian reservation 27 of the United States Government . . . , (b) all dependent Indian communities within the 1 Respondents argue that Luft, a non-Indian, was the victim of the attempted 2 robbery. (See ECF No. 35 at 8.) Berry, however, contends that the McBratney exception 3 should be construed narrowly, allowing the State to exercise jurisdiction over an offense 4 in Indian country only if the offense does not involve or affect Indians. (ECF No. 24 at 7- 5 8 (citing People of State of N.Y. ex rel. Ray v. Martin, 326 U.S. 496, 500 (1946) (“[T]he 6 McBratney line of decisions stands for the proposition that States” have jurisdiction over 7 “crimes between whites and whites which do not affect Indians”) and Duro v. Reina, 495 8 U.S. 676, 680 n.1 (1990) (“For Indian country crimes involving only non-Indians, 9 longstanding precedents of this Court hold that state courts have exclusive 10 jurisdiction.”), superseded by statute on other grounds in United States v. Lara, 541 U.S. 11 193, 207 (2004)); see also ECF No. 40 at 34.) In construing the McBratney jurisdiction 12 exception narrowly, Berry argues that the Fallon Paiute-Shoshone Tribe, through its 13 Fallon Tribal Development Corporation (hereinafter “Corporation”), which owns the Fox 14 Peak Station, were involved in and were affected by Berry’s crime because Berry 15 attempted to steal their property. (ECF No. 40 at 37–40 (citing United States v. Chavez, 16 290 U.S. 357, 365 (1933) for the general proposition that jurisdiction extends to crimes 17 “against the Indians or against their property”).) 18 Attempted robbery has been defined by Congress and the Nevada Legislature.8 19 Federal criminal law provides that “[w]hoever . . . by force and violence, or by 20 8Federal criminal law would apply if Berry’s crime was committed against an Indian 21 whereas Nevada state criminal law would apply if Berry’s crime was committed against a 22 non-Indian. See United States v. Reza-Ramos, 816 F.3d 1110, 1115-16 (9th Cir. 2016) (“[F]ederal criminal law is applicable in federal enclaves when the defendant is a non- 23 Indian and the victim is an Indian.”); 18 U.S.C. § 1152 (“Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses 24 committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.”); Williams v. United 25 States, 327 U.S. 711, 714 (1946) (“While the laws and courts of the State of Arizona may 26 have jurisdiction over offenses committed on this reservation between persons who are not Indians, the laws and court of the United States, rather than those of Arizona, have 27 jurisdiction over offenses committed there, as in this case, by one who is not an Indian 1 intimidation, takes or attempts to take from the person or presence of another anything 2 of value, shall be imprisoned not more than fifteen years.” 18 U.S.C. § 2111. Similarly, 3 Nevada law provides that “[r]obbery is the unlawful taking of personal property from the 4 person of another, or in the person’s presence, against his or her will, by means of force 5 or violence or fear of injury, immediate or future, to his or her person or property.”9 NRS 6 § 200.380(1). 7 Looking at the language of the crime, under either 18 U.S.C. § 2111 or NRS § 8 200.380(1), the Fallon Paiute-Shoshone Tribe, through its Corporation, was not directly 9 involved in or affected by the attempted robbery. See Duro, 495 U.S. at 680 n.1; Martin, 10 326 U.S. at 500. Attempted robbery requires that Berry use force, violence, and/or 11 intimidation in an attempt to take property. See 18 U.S.C. § 2111; NRS § 200.380(1). 12 Berry cannot be said to have used force, violence, and/or intimidation against the 13 Corporation, an incorporeal entity.10 Instead, due to the nature of the crime of attempted 14 robbery—as compared to a crime against property, e.g., theft or burglary—it is apparent 15 that Berry committed attempted robbery by use of force, violence, and/or intimidation 16 only against Luft. 17 This is consistent with the holding in United States v. Burns, 701 F.2d 840 (9th 18 Cir. 1983). In Burns, the United States Court of Appeals for the Ninth Circuit determined 19 that the district court had jurisdiction over the Indian defendant who robbed a smoke 20 shop located in Indian country because “the taking was from the employees” of the shop, 21 22 23 9Nevada has a separate enactment that defines an attempt: “[a]n act done with the intent to commit a crime, and tending but failing to accomplish it.” NRS § 193.330(1). 24 10There does not appear to be a dispute between the parties that the Corporation 25 is considered a person. See NRS § 0.039 (defining a person as “a natural person, any 26 form of business or social organization and any other nongovernmental legal entity including, but not limited to, a corporation, partnership, association, trust or 27 unincorporated organization”); 1 U.S.C. § 1 (explaining that “the word[ ] ‘person’ . . . 1 who were also Indian, regardless of whether the smoke shop itself was Indian-owned. 2 Id. at 843. 3 Accordingly, as the Nevada Supreme Court reasonably concluded, because 4 Berry, a non-Indian, committed attempted robbery against only Luft, another non-Indian, 5 the State of Nevada had jurisdiction. See McBratney, 104 U.S. at 624.11 As such, the 6 Nevada Supreme Court’s rejection of Berry’s claim was neither contrary to nor an 7 unreasonable application of clearly established law as determined by the United States 8 Supreme Court and was not based on an unreasonable determination of the facts. Berry 9 is not entitled to federal habeas relief for ground 1.12 10 V. CERTIFICATE OF APPEALABILITY 11 This is a final order adverse to Berry. Rule 11 of the Rules Governing Section 2254 12 Cases requires the Court to issue or deny a certificate of appealability (“COA”). Therefore, 13 this court has sua sponte evaluated the claims within the petition for suitability for the 14 issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 15 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the 16 petitioner “has made a substantial showing of the denial of a constitutional right.” With 17 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 18 jurists would find the district court’s assessment of the constitutional claims debatable or 19 20 11And even if the Fallon Paiute-Shoshone Tribe, through its Corporation, was sufficiently involved in or affected by Berry’s crime, it is not readily apparent that the State 21 of Nevada would lose jurisdiction over Berry’s crime as it related to Luft. See United States 22 v. Bruce, 394 F.3d 1215, 1221 n.3 (9th Cir. 2005) (“Offenses committed by non-Indians against multiple victims, including both Indians and others, would fall subject to 23 competing, and perhaps concurrent, claims of federal and state court jurisdiction.”); but cf. Duro, 495 U.S. at 680 n.1 (1990) (“For Indian country crimes involving only non- 24 Indians, longstanding precedents of this Court hold that state courts have exclusive jurisdiction.”) (emphasis added). 25 26 12Berry requests that the Court “[c]onduct an evidentiary hearing at which proof may be offered concerning the allegations in [his] amended petition and any defenses 27 that may be raised by respondents.” (ECF No. 24 at 9.) Berry fails to explain what 1 || wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 2 || 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists 3 || could debate (1) whether the petition states a valid claim of the denial of a constitutional 4 || right and (2) whether the court's procedural ruling was correct. See id. 5 Applying these standards, the Court finds that a certificate of appealability is 6 || warranted for ground 1. Reasonable jurists could debate whether the Fallon Paiute- 7 || Shoshone Tribe, through its Corporation, was involved in or affected by Berry’s 8 || attempted robbery. See Duro, 495 U.S. at 680 n.1; Martin, 326 U.S. at 500. Although 9 || the Fallon Paiute-Shoshone Tribe, through its Corporation, was not directly involved in 10 || or affected by the attempted robbery, the level of involvement or affectedness required 11 || by Duro and Martin is unclear, especially here, where the crime in question requires 12 || force, violence and/or intimidation against a person and the taking of property. Looking 13 || at that latter point, the object of Berry’s crime was to steal money and property from the 14 || Fallon Paiute-Shoshone Tribe, through its Corporation—not from Luft personally. 15 || Indeed, the charging document itself states that Berry “attempted to rob Fox Peak.” (ECF 16 || No. 8-19 at 2.) Thus, reasonable jurists could debate whether Berry’s crime was 17 || committed against an Indian—the Fallon Paiute-Shoshone Tribe, through its 18 || Corporation—such that the State of Nevada lacked jurisdiction. See McBratney, 104 19 || U.S. at 624. 20 |} VI. CONCLUSION 21 It is therefore ordered that the petition for a writ of habeas corpus pursuant to 28 22 || U.S.C. § 2254 (ECF No. 24) is denied. 23 It is further ordered that a certificate of appealability is granted for ground 1. 24 The Clerk of Court is directed to substitute Kyle Olsen for Respondent Isidro Baca, 25 || enter judgment accordingly, and close this case. 26 DATED THIS 29" Day of October 2021 ALAN 27 MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE