Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 11, 2026
FOR THE TENTH CIRCUIT Christopher M. Wolpert ______________________________________________ Clerk of Court
THOMAS ROYE WAHPEKECHE,
Petitioner - Appellant,
v. No. 23-6176
LUKE PETTIGREW, Warden,
Respondent - Appellee. _____________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:21-CV-01106-PRW) _____________________________________________
Submitted on the briefs *:
Jason B. Wesoky, Ogborn Mihm, LLP, Denver, Colorado, for Petitioner- Appellant.
Gentner F. Drummond, Attorney General of Oklahoma and Tessa L. Henry, Assistant Attorney General, for Respondent-Appellee. ________________________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges . ____________________________________________
BACHARACH, Circuit Judge. _________________________________________________
* Oral argument would not materially help us decide this appeal, so we have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 2
This case involves challenges to convictions for state crimes. 1 The
petitioner, Mr. Thomas Roye Wahpekeche, claims that the state court
lacked jurisdiction because he’s an Indian and the crimes took place in
Indian country. 2
Land can constitute Indian country through status as an Indian
reservation, a dependent Indian community, or an Indian allotment. See 18
U.S.C. § 1151(a)–(c). Considering these types of Indian country, we
conclude that
• Congress disestablished the pertinent reservation and
• Mr. Wahpekeche waived his characterization of the land as a dependent Indian community or an Indian allotment.
1 Mr. Wahpekeche was convicted of
• first-degree rape of a victim younger than fourteen (Okla. Stat. tit. 21, § 1114),
• forcible sodomy (Okla. Stat. tit. 21, § 888),
• lewd or indecent acts to a child younger than sixteen (Okla. Stat. tit. 21, § 1123(A)(2)),
• rape by instrumentation (Okla. Stat. tit. 21, § 1114(A)(7)), and
• commission of a lewd act in front of a minor (Okla. Stat. tit. 21, § 1123(A)(5)). 2 Mr. Wahpekeche alleges membership in the Kickapoo Tribe and the presence of at least some “Indian blood.” The State takes no position on Mr. Wahpekeche’s status as an Indian.
2 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 3
1. We decline to vacate the certificate of appealability.
Mr. Wahpekeche challenges not only the existence of state-court
jurisdiction but also the rulings on his claims of ineffective assistance of
counsel, denial of due process, and violation of a federal statute. See
pp. 15–16, below. He could appeal the rulings only if a judge were to issue
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). So he requested a
certificate and obtained one “on all issues.” Order (10th Cir. Nov. 20,
2024).
The State asks us to vacate the certificate, pointing out that
• we generally disfavor blanket certificates of appealability on all issues, see Thomas v. Gibson, 218 F.3d 1213, 1219 n.1 (10th Cir. 2000) (stating that “‘blanket’ [certificates of appealability] . . . are at odds with the statutory provision governing appeals in § 2254 petitions”), and
• we have occasionally vacated certificates of appealability as improperly granted, e.g., Childers v. Crow, 1 F.4th 792, 797– 801 (10th Cir. 2021).
But we have also recognized that
• a certificate of appealability “is a screening device, helping to conserve judicial and (prosecutorial) resources” and
• “there is little point in scrutinizing the certificate” after the parties have briefed the merits.
United States v. Talk, 158 F.3d 1064, 1068 (10th Cir. 1998) (quoting Young
v. United States, 124 F.3d 794, 799 (7th Cir. 1997)). Given the extensive
briefing on the merits, we decline to reconsider the issuance of a
certificate on all issues. 3 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 4
2. Congress disestablished the Citizen Potawatomi reservation.
Indian country can exist through a reservation, and no one doubts
that the Citizen Potawatomi tribe had a reservation at one time. 18 U.S.C.
§ 1151(a); Citizen Band Potawatomi Indian Tribe of Okla. v. Collier, 142
F.3d 1325, 1327 (10th Cir. 1998). But in 1891, Congress enacted a statute
addressing the status of this reservation. The question is whether this
statute disestablished the reservation. 3
The Supreme Court explained in McGirt v. Oklahoma that
disestablishment requires clear congressional expression of an “intent to
[disestablish], commonly with an explicit reference to cession or other
language evidencing the present and total surrender of all tribal interests.”
591 U.S. 894, 904 (2020) (cleaned up). So we consider the language in the
1891 statute.
There Congress recognized that the Citizen Potawatomi Tribe had
agreed to “cede, relinquish, and forever and absolutely surrender to the
United States all their claim, title and interest of every kind and character
in and to [a tract of land described in detail].” Act of March 3, 1891, § 8,
art. I, 26 Stat. 989, 1016. The statute described the tribe’s surrender of
3 Federal law restricts the availability of habeas relief when the state appellate court rejected a claim after adjudicating it on the merits. 28 U.S.C. § 2254(d)(1)–(2). The parties disagree about the applicability of this restraint: The State argues that the restraint applies; Mr. Wahpekeche argues that it doesn’t. For the sake of argument, we assume that Mr. Wahpekeche is right. 4 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 5
interests as forever and absolute, id., and the Supreme Court has
characterized this language as sufficiently clear to disestablish a
reservation, DeCoteau v. Dist. Cnty. Court for Tenth Judicial Dist., 420
U.S. 425, 439 & n.22 (1975) (citing 26 Stat. 1016, 1019).
Given that characterization of the statutory language, we’ve referred
to the Citizen Potawatomi reservation as a thing of the past. Citizen Band
Potawatomi Indian Tribe of Okla. v. Collier, 142 F.3d 1325, 1326–27,
1334 (10th Cir. 1998) (referring to the Citizen Potawatomi reservation as a
“former” reservation). And scholars have often recognized termination of
the Citizen Potawatomi Tribe’s reservation. Mark Welliver, CP 87 and CP
100: Allotment and Fractionation within the Citizen Potawatomi Nation, 2
Tribal L.J. 1, 10 (2001) (“The immediate impact of the [1890] Citizen
Potawatomi Agreement was the termination of the reservation . . . .”);
Berlin B. Chapman, The Pottawatomie and Absentee Shawnee Reservation,
24 Chronicles of Oklahoma 293, 305 (1946) (“In 1891 Congress ratified
agreements with the Pottawatomies and Absentee Shawnees under which
allotment was completed and the reservation dissolved.”); Lisa Kraft,
Thrice Purchased: Acquisition and Allotment of the Citizen Potawatomi
Reservation, 86 Chronicles of Oklahoma 64, 80–82 (2008) (stating that the
1891 statute terminated the Citizen Potawatomi reservation).
Despite this chorus of authority, Mr. Wahpekeche argues that the
district court should have considered disestablishment under the framework
5 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 6
set out in Solem v. Bartlett, 465 U.S. 463 (1984). In Solem, the Court
considered not only statutory language, but also surrounding events. Solem,
465 U.S. at 471; see also Murphy v. Royal, 875 F.3d 896, 920–21 (10th
Cir. 2016) (discussing the framework under Solem), aff’d sub nom. Sharp
v. Murphy, 591 U.S. 977 (2020).
These events include the government’s payment of $160,000 in
exchange for the tribe’s “relinquishment of all title, claim, and interest of
every kind and character in an[d] to said lands.” 1891 Act, 26 Stat. 989,
1016, 1018; see H.R. Rep. No. 3481, 51st Cong., 2d Sess. 2 (1891)
(characterizing the payment of $160,000 as compensation to the Citizen
Band of Potawatomi Indians “for the relinquishment of whatever right the
Indians might have”). That payment, coupled with the statutory language
of cession, created “an almost insurmountable presumption that Congress
meant for the tribe’s reservation to be diminished.” Solem v. Bartlett, 465
U.S. 463, 470–71 (1984); see also South Dakota v. Yankton Sioux Tribe,
522 U.S. 329, 357 (1998) (“The 1894 Act contains the most certain
statutory language, evincing Congress’ intent to diminish the Yankton
Sioux Reservation by providing for total cession and fixed
compensation.”). Mr. Wahpekeche hasn’t rebutted that heavy presumption
of congressional intent to diminish the reservation.
The resulting question is the scope of that diminution: The State
argues that the diminution did away with the entire reservation, and
6 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 7
Mr. Wahpekeche contends that the 1891 statute left part of the reservation
intact. For this contention, Mr. Wahpekeche says that the statute ceded
only excess lands of the reservation, which consisted of roughly
575,870.42 acres. Pet’r’s Supp. Opening Br. at 23. But that was the acreage
of the entire reservation. See H.R. Rep. No. 51-3481, at 1 (1891) (stating
that the “Citizen Band of Pottawatomie Indians are now and . . . have been,
occupying a reservation in the Indian Territory (now within the territorial
limits of Oklahoma about 30 miles square, and containing an area of
575,870.42 acres)”); Lisa Kraft, Acquisition and Allotment of the Citizen
Potawatomi Reservation, 86 Chronicles of Oklahoma 64, 81–82 (2008)
(stating that the Citizen Potawatomi reservation originally consisted of
575,870 acres).
Though the 1891 statute appeared to cover all the land in the
reservation, Mr. Wahpekeche points out that the Supreme Court has
referred twice to the reservation in the 20th and 21st centuries 4:
4 Mr. Wahpekeche also points to a summary disposition in Bentley v. Oklahoma, 141 S. Ct. 191 (2020) (Mem.), stating that the remand implied the continued existence of the Citizen Potawatomi reservation. But the summary disposition stated only that the Court was remanding based on McGirt; nothing suggests consideration of an issue involving disestablishment of the reservation. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37–38 (1952) (stating that a prior opinion’s implicit resolution of an issue doesn’t constitute “binding precedent” when the issue wasn’t discussed in the opinion or raised by the parties).
7 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 8
1. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991); and
2. C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001).
From these references, Mr. Wahpekeche assumes that the Supreme Court
must have thought that the tribe still had a reservation. But neither opinion
discusses disestablishment or the continued existence of a reservation. And
“questions which merely lurk in the record, neither brought to the attention
of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511
(1924).
Because these references don’t constitute applicable precedents, we
conclude that the 1891 statute unambiguously disestablished the entire
reservation.
3. Mr. Wahpekeche’s remaining jurisdictional arguments were unpreserved or unexplained.
Mr. Wahpekeche raises three other challenges to the state court’s
jurisdiction:
1. His crimes occurred in a dependent Indian community.
2. His crimes occurred on allotted land.
3. The Oklahoma Enabling Act deprived the state court of jurisdiction.
In our view, Mr. Wahpekeche didn’t preserve the first two arguments and
hasn’t explained the third. 8 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 9
a. Mr. Wahpekeche waived an argument that his crimes had occurred in a dependent Indian community.
The first argument involves the possible existence of a dependent
Indian community. Status as a dependent Indian community would have
rendered the land Indian country. See 18 U.S.C. § 1151(b). But Mr.
Wahpekeche’s habeas petition didn’t mention the possible existence of a
dependent Indian community. And in Mr. Wahpekeche’s brief supporting
his habeas petition, he mentioned a dependent Indian community only
when describing an earlier argument made in state court. R. vol. 1, at 85
(stating that Mr. Wahpekeche had earlier pointed out that the community of
Little Axe was a dependent Indian community). But Mr. Wahpekeche didn’t
say in either the habeas petition or supporting brief that he was continuing
to characterize the land as a dependent Indian community.
This characterization surfaced in federal court for the first time when
Mr. Wahpekeche objected to the magistrate judge’s recommendation. And
“[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). 5
5 In the objection, Mr. Wahpekeche also argued that the Absentee Shawnee tribe enjoyed exclusive jurisdiction because he had bought his home from the Absentee Shawnee Tribal Housing Authority. On appeal, Mr. Wahpekeche theorizes that the crimes took place in a dependent Indian community. But Mr. Wahpekeche failed to preserve this theory in his habeas petition. See Owens v. Trammell, 792 F.3d 1234, 1245–46 (10th Cir. 2015). 9 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 10
In response, Mr. Wahpekeche contends that the state court promised
that he could raise jurisdictional arguments any time. He bases this
contention on the state district court’s observation that he could raise the
issue with the Oklahoma Court of Criminal Appeals. 6 But the state district
court didn’t tell Mr. Wahpekeche that he could bypass procedural
requirements in federal court.
b. Mr. Wahpekeche didn’t preserve an argument that his crimes had occurred on allotted land.
Mr. Wahpekeche also argues that the state court lacked jurisdiction
because the crimes had occurred on allotted land. Continued status as an
allotment would render the land Indian country. See 18 U.S.C. § 1151(c).
But Mr. Wahpekeche didn’t preserve an argument involving status as an
allotment.
6 Following arguments on the jurisdictional issue, the trial court ruled against Mr. Wahpekeche and told his attorney: “I will reserve all of the objections for appeal with regard to that issue.” R. vol. 2, at 955. This statement suggested that Mr. Wahpekeche had properly preserved the issue. When the issue reappeared just before sentencing, the trial court again ruled against Mr. Wahpekeche and said:
• “You may reserve all of your appeal rights with regard to that decision.”
• “I am going to allow the defense to reserve any argument they want to make on that.”
Id. at 979. 10 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 11
To preserve this argument, Mr. Wahpekeche needed to object to the
magistrate judge’s recommendation by focusing specifically “on the factual
and legal issues that [were] truly in dispute.” United States v. 2121 E. 30th
St., 73 F.3d 1057, 1060 (10th Cir. 1996).
Mr. Wahpekeche did make an allotment argument in the habeas
petition. But the magistrate judge rejected this argument, and
Mr. Wahpekeche did not challenge that part of the magistrate judge’s
report. Instead, Mr. Wahpekeche referred to an allotment only to show
continuation of the reservation. As a result, the district judge construed
Mr. Wahpekeche’s jurisdictional claims to involve only the status of the
Given Mr. Wahpekeche’s failure to raise the allotment issue when
objecting to the magistrate judge’s report, we wouldn’t ordinarily consider
granting relief on this issue. See Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991). But we may consider granting relief when the interests of
justice require review. Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119
(10th Cir. 2005). In assessing the interests of justice, we apply the plain-
error standard. Id. at 1122. Under this standard, Mr. Wahpekeche bears the
burden of proving not only that the magistrate judge had erred but also that
the error would be clear or obvious. See United States v. B.N.M., 107 F.4th
1152, 1169–70 (10th Cir. 2024).
11 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 12
To apply this standard, we must consider whether the magistrate
judge clearly or obviously erred in determining that the land had lost its
status as an allotment. This status could involve either a trust allotment or
a restricted allotment. Miami Tribe of Okla. v. United States, 656 F.3d
1129, 1133 n.4 (10th Cir. 2011). In a trust allotment, the government
• conveys land in trust for the allottee’s sole use during a specified period and
• grants an unrestricted fee when that period ends.
Id. In a restricted allotment, the government conveys the land through a
patent, which allows the allottee to hold the land in fee with a restriction
on alienation. Id.
Here the government appeared to create a trust allotment by
establishing a trust for the land and designating the beneficiaries. The trust
allotment “retain[ed] . . . a distinctively Indian character” “during the trust
period.” United States v. Pelican, 232 U.S. 442, 449 (1914). But “the
Secretary of the Interior [had] discretion to remove allotted land from trust
status and to issue fee simple patents . . . .” Yankton Sioux Tribe v.
Podhradsky, 606 F.3d 994, 1000 (8th Cir. 2010). So the trust allotment
would end if the government were to allow a purchaser to obtain a fee
simple patent. Larkin v. Paugh, 276 U.S. 431, 439 (1928); Cohen’s
Handbook of Federal Indian Law § 18.03[4][a][ii], at 1174 (2024 ed.).
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The magistrate judge characterized the continued status of the
allotment as a factual matter and resolved the issue against
Mr. Wahpekeche, finding that the land had lost its status as an allotment
before his purchase. R. vol. 2, at 954–55. 7 This factual finding was
presumptively correct under federal law, 28 U.S.C. § 2254(e)(1), and the
magistrate judge concluded that Mr. Wahpekeche hadn’t overcome the
presumption, R. vol. 4, at 234–36.
If the magistrate judge had erred in this conclusion, the error
wouldn’t have been clear or obvious given the trial testimony and
incomplete title history. A tribal officer testified that Mr. Wahpekeche’s
land didn’t lie in any of the county’s tribal trust land. Similarly, the title
history didn’t show the trust status when the crimes had taken place.
Mr. Wahpekeche argues that no one could remove the land from trust
status by obtaining a patent in fee because ownership of the land had come
with restrictions on alienation. 8 But the Department of Interior stated twice
that there were “no reservations or withdrawals covering” the land.
7 Similarly, the state appellate court concluded that the record doesn’t support a claim that Mr. Wahpekeche’s land was part of an allotment. R. vol. 2, at 152–53. 8 Restrictions on alienation exist with both a trust allotment and restricted allotment. United States v. Ramsey, 271 U.S. 467, 470 (1926).
13 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 14
R. vol. 4, at 184–85. 9 And Mr. Wahpekeche refers only to his own purchase
in 2013 and a sale 102 years earlier. He doesn’t cite or provide any
evidence regarding the effect of various sales during the 102-year period.
So any possible error by the magistrate judge wouldn’t have been plain.
And absent a plain error, Mr. Wahpekeche waived his allotment argument
by failing to raise the issue when objecting to the magistrate judge’s
report.
c. Mr. Wahpekeche does not explain how the Oklahoma Enabling Act deprived the state court of jurisdiction.
Mr. Wahpekeche also argues that the state court lacked jurisdiction
because of the Oklahoma Enabling Act. 10 This Act states “[t]hat the people
inhabiting said proposed State do agree and declare that they forever
disclaim all right and title in or to . . . all lands lying within [the State]
9 The first reference appears to relate to a geological survey. R. vol. 4, at 184. But the second reference appears separately from the geological survey, explaining a recommendation for the Department of Interior to approve the deed. Id. at 185.
10 Mr. Wahpekeche also claims that his convictions violated the Oklahoma Constitution. Habeas relief must be based on a violation of the federal constitution, not a state constitution. Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
Granted, the Oklahoma Constitution could conceivably affect Mr. Wahpekeche’s title, which could in turn bear on characterization of the property as an allotment. But Mr. Wahpekeche doesn’t argue that the Oklahoma Constitution supports status as an allotment. 14 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 15
owned or held by any Indian, tribe, or nation.” Act of June 16, 1906, 34
Stat. 267, 270.
Mr. Wahpekeche has not explained the meaning of the statutory
language or said why the Oklahoma Enabling Act deprived the state court
of jurisdiction. At times, he implies that the Act refers to all Oklahoma
land that had been held by a Native American or tribe. At other times, he
suggests
• that the Act shows the existence of the Citizen Potawatomi reservation or
• that the crimes occurred in a dependent Indian community or on allotted land.
In any case, Mr. Wahpekeche has not explained how the Act deprived the
state court of jurisdiction. Absent such an explanation, he hasn’t shown an
error involving application of the Act.
4. Mr. Wahpekeche failed to properly preserve his other claims.
Mr. Wahpekeche also presents five other claims:
1. The State’s investigation violated the Indian Child Welfare Act.
2. Mr. Wahpekeche’s trial counsel was ineffective in failing to challenge the state court’s jurisdiction.
3. The State improperly questioned him after he had requested counsel.
4. The State violated due process by failing to properly store evidence.
15 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 16
5. The prosecutor violated due process by invoking a rape-shield law and curtailing Mr. Wahpekeche’s presentation of a defense. 11
In state court, Mr. Wahpekeche never raised the second or fourth
claim (ineffective assistance of trial counsel or failure to properly store
evidence).
Mr. Wahpekeche did raise the first and third claims in state court, but
not in a procedurally proper way. For example, he raised these claims when
he appealed the denial of post-conviction relief. But that appeal was late
and dismissed as out of time. Mr. Wahpekeche obtained leave to appeal out
of time, which allowed him to reassert the first and third claims. But he
didn’t take the next step of reasserting these claims. So the state appellate
court never had a chance to address the first or third claim in a
11 The State argues that Mr. Wahpekeche’s counsel waived these claims by declining to address them in his supplemental opening brief. A waiver takes place when a party deliberately considers an issue and intentionally decides to forgo it. Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 991 (10th Cir. 2019).
Mr. Wahpekeche’s counsel never said anything to suggest a waiver of his client’s non-jurisdictional arguments. The order for additional briefing allowed the attorney to file a “supplemental Opening brief.” Order at 2 (10th Cir. Nov. 20, 2024) (“Appellant, through appointed counsel, may file a supplemental opening brief within 40 days of the date of this order.”). In allowing a supplemental brief, the order didn’t suggest that the attorney would waive Mr. Wahpekeche’s earlier arguments by declining to reassert them.
16 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 17
procedurally proper appeal. 12 See Coleman v. Thompson, 501 U.S. 722,
730–31 (1991) (stating that a habeas petitioner must satisfy the state’s
procedural requirements for purposes of exhaustion).
For the fifth claim, Mr. Wahpekeche alleged that the state prosecutor
had violated due process by using a rape shield law to urge exclusion of
relevant evidence. R. vol. 1, at 55–57. He did mention the rape shield law
in state court when he appealed his convictions. R. vol. 2, at 183–89. But
in that appeal, he used the rape shield law only to claim ineffectiveness of
counsel, not to claim a denial of due process. See id.; see also R. vol. 4, at
244–45 (magistrate judge’s explanation of the differences between
Mr. Wahpekeche’s claims in state court and in support of habeas relief).
Given the differences between the challenges in state and federal
court, Mr. Wahpekeche failed to exhaust the five claims. See Dever v. Kan.
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Though
Mr. Wahpekeche could ordinarily try to exhaust the claims now, the state
appeals court would undoubtedly regard all of the claims as waived. Okla.
Stat. tit. 22, § 1086; see Fontenot v. Crow, 4 F.4th 982, 1024 (10th Cir.
12 The appeal was dismissed because of an error in the clerk’s office for the state district court. Because Mr. Wahpekeche wasn’t at fault for the dismissal, he argues that he couldn’t have known that he would need to reassert arguments that he had presented earlier. But when Mr. Wahpekeche obtained leave to appeal out of time, the state appeals court told him that he needed to file a new supporting brief. R. vol. 2, at 765–66. 17 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 18
2021). So the failure to exhaust the claims would ordinarily trigger an
anticipatory procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 1139
n.7 (10th Cir. 2007) (“Anticipatory procedural bar occurs when the federal
courts apply procedural bar to an unexhausted claim that would be
procedurally barred under state law if the petitioner returned to state court
to exhaust it.” (internal quotation marks omitted)).
Mr. Wahpekeche disputes an anticipatory procedural bar, arguing that
(1) the State conceded exhaustion by addressing all the claims on their
merits, (2) the magistrate judge shouldn’t have considered exhaustion sua
sponte, and (3) he showed a fundamental miscarriage of justice. We reject
these arguments.
First, the State didn’t concede exhaustion. To the contrary, the State
• noted that it was addressing the merits even “where claims [were] clearly not properly exhausted” and
• argued that Mr. Wahpekeche had not exhausted the first four claims.
R. vol. 2, at 54, 117, 128–29, 135.
Second, the magistrate judge didn’t err by considering exhaustion sua
sponte. This issue involves the fifth claim (violation of the rape-shield law
and curtailment of a defense). For this claim, the State didn’t raise
exhaustion. But the magistrate judge raised exhaustion sua sponte,
concluding that Mr. Wahpekeche hadn’t previously alleged a denial of due
process. 18 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 19
Mr. Wahpekeche argues that the magistrate judge shouldn’t have
considered exhaustion sua sponte. But “[s]ua sponte consideration of
exhaustion of state remedies . . . is explicitly permitted by Supreme Court
precedent.” United States v. Mitchell, 518 F.3d 740, 746 n.8 (10th Cir.
2008) (citing Granberry v. Greer, 481 U.S. 129, 133 (1987) and Caspari v.
Bohlen, 510 U.S. 383, 389 (1994)).
Granted, the federal district court needed to give Mr. Wahpekeche “a
fair opportunity to present his position.” Wood v. Milyard, 566 U.S. 463,
472 (2012). But the court did so, giving Mr. Wahpekeche a chance to
object to the magistrate judge’s report. See Magouirk v. Phillips, 144 F.3d
348, 359 (5th Cir. 1998) (holding that the opportunity to object to a
magistrate judge’s invocation of procedural default qualified as adequate
“notice and a reasonable opportunity to oppose application of the
procedural default doctrine”); Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d
649, 655 (11th Cir. 2020) (adopting the Fifth Circuit’s reasoning in
Magouirk to uphold a magistrate judge’s consideration of timeliness). 13
Finally, Mr. Wahpekeche hasn’t overcome the anticipatory
procedural bar. To do so, he needed to show (1) cause and prejudice or
(2) a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
13 Mr. Wahpekeche did object to the magistrate judge’s report. But his only objection was that the court should not reach the issue sua sponte given the State’s purported waiver. 19 Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 20
722, 750 (1991). Mr. Wahpekeche tries to show a fundamental miscarriage
of justice through an affidavit from his son, who testified for the
prosecution. In the affidavit, the son states that he thinks his father is
innocent and that an adverse witness was coached. These statements don’t
establish a fundamental miscarriage of justice. See McQuiggin v. Perkins,
569 U.S. 383, 401 (2013) (stating that a showing of a fundamental
miscarriage of justice requires “evidence of innocence so strong that a
court cannot have confidence in the outcome unless the court is also
satisfied that the trial was free of nonharmless constitutional error”
(citations omitted)).
Given the anticipatory procedural bar, the district court couldn’t
grant habeas relief on the five claims.
* * *
We conclude that Congress disestablished the reservation,
Mr. Wahpekeche didn’t preserve his characterization of the land as an
allotment or a dependent Indian community, and an anticipatory procedural
bar prevents habeas relief on the five other claims. So we affirm the denial
of habeas relief.