United States v. Cuch

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 3/21/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 95-4016
KIM FORD CUCH,
Defendant - Appellant.

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 95-4034
AUDIE APPAWOO,
Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
(D.C. Nos. 94-CV-494, 91-CR-240, 92-CV-483, 82-CR-109)

Scott M. Matheson, Jr., United States Attorney (Barbara Bearnson, Assistant United
States Attorney, and Matthew R. Howell, Assistant United States Attorney, with him on
the briefs), Salt Lake City, Utah, for Plaintiff-Appellee United States of America.

Manny Garcia, Salt Lake City, Utah, for Defendant-Appellant Cuch.

Wendy Hufnagel, Heber City, Utah, for Defendant-Appellant Appawoo.
Before ANDERSON, KELLY, and HENRY, Circuit Judges.

ANDERSON, Circuit Judge.

The movants in these consolidated cases were both convicted in federal district

court of federal crimes committed on land in eastern Utah that we had determined to be

part of the Ute Indian Tribe’s Uintah Reservation. Ute Indian Tribe v. Utah, 773 F.2d

1087 (10th Cir. 1985) (en banc), cert. denied, 479 U.S. 994 (1986). In 1994, the United

States Supreme Court declared that the lands in question were not part of the Uintah

Reservation; therefore, the state of Utah, not the federal government, had jurisdiction over

crimes committed in the disputed area. Hagen v. Utah, 114 S. Ct. 958 (1994).

Relying on Hagen, the movants now collaterally attack their convictions pursuant

to 28 U.S.C. § 2255, claiming them to be void for want of jurisdiction. The issue is

whether the Hagen decision both can and should be applied prospectively only with

respect to convictions on collateral review. The district court in each case answered these

questions in the affirmative. We agree. The Supreme Court, and by extension this court,

has the undoubted power to declare that its jurisdictional and other decisions shall be

limited to prospective application; and neither controlling precedent, policy

considerations, nor questions of fundamental fairness require a different result here.

Accordingly, we affirm.

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 BACKGROUND

In 1975, the Ute Indian Tribe sought to exercise jurisdiction over all land

originally encompassed in its Uintah Reservation, including land in and around the cities

of Roosevelt and Tridell, Utah. When non-Indians protested the action, the tribe sued in

federal court for declaratory and injunctive relief, and the state of Utah intervened. Ute

Indian Tribe v. Utah, 75-C-408 (D. Utah).1 The course of the litigation is as follows:

In 1976, the United States District Court for the District of Utah issued a

preliminary injunction in favor of the tribe, enjoining the state from exercising

jurisdiction in the disputed lands pending a decision on the merits.2 The court held a trial

on the merits in 1979 and issued an opinion in 1981 in favor of the tribe, holding that

Congress’s decision to open the Reservation to non-Indian settlement in 1905 had no

effect on the Reservation boundaries. Ute Indian Tribe v. Utah, 521 F. Supp. 1072 (D.

Utah 1981). After a panel of this court addressed the question on appeal, Ute Indian

Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983), we affirmed in pertinent part in an en banc

The details of the tribe’s claims are extensively covered in the various opinions
1

addressing the matter and need not be repeated here. See Ute Indian Tribe v. Utah, 521 F.
Supp. 1072 (D. Utah 1981), aff’d in pertinent part, 773 F.2d 1087, 1089 (10th Cir. 1985)
(en banc), modifying 716 F.2d 1298 (10th Cir. 1983), cert. denied, 479 U.S. 994 (1986).
2
The court issued the injunction after a state court decision affirmed state
jurisdiction over the disputed lands. Brough v. Appawora, 553 P.2d 934 (Utah 1976),
vacated and remanded, 431 U.S. 901 (1977). The Eleventh Amendment did not bar the
injunction, as the state waived its immunity by intervening in the litigation. See Ute
Indian Tribe, 521 F. Supp. at 1075 n.1 (citing Petty v. Tennessee-Missouri Bridge
Comm’n, 359 U.S. 275, 276-82 (1959)).

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rehearing. Ute Indian Tribe v. Utah, 773 F.2d 1087, 1089 (10th Cir. 1985). The Supreme

Court subsequently denied certiorari. Utah v. Ute Indian Tribe, 479 U.S. 994 (1986).

From 1976 forward, relying on the various decisions in the Ute litigation, federal

prosecutors brought charges against Indians for criminal acts committed within the

historical boundaries of the Reservation. See DeCoteau v. District County Ct. for the

Tenth Judicial Dist., 420 U.S. 425, 427 & nn.1-2 (1975) (discussing federal criminal

jurisdiction over Indian acts on reservations). Challenges to federal jurisdiction during

that time were dismissed or decided on the authority of Ute Indian Tribe. See, e.g.,

United States v. McCook, 92-CR-286W (D. Utah), cited in Appellee’s Br. at 10 n.6; cf.

United States v. Felter, 546 F. Supp. 1002, 1003 & n.1 (D. Utah 1982) (identifying land

on which Indian defendant allegedly illegally fished as Indian country), aff’d, 752 F.2d

1505 (10th Cir. 1985); State v. Gardner, 827 P.2d 980, 980 n.1 (Utah Ct. App.) (assuming

city of Roosevelt lay within Reservation boundaries for purposes of state jurisdictional

challenge), cert. denied, 836 P.2d 1383 (Utah 1992).

In the late 1980s and early 1990s, the state of Utah renewed its assertion of

jurisdiction over the lands in question, and the state’s highest court concurred. See State

v. Perank, 858 P.2d 927 (Utah 1992); State v. Coando, 858 P.2d 926 (Utah 1992); State v.

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Hagen, 858 P.2d 925 (Utah 1992), aff’d, 114 S. Ct. 958 (1994).3 Because these state

cases inherently conflicted with our Ute Indian Tribe decision, which continued to control

federal prosecutorial decisions in the Uintah Basin, the state agreed it would not enforce

its new decisions until the matter could be finally resolved by the United States Supreme

Court. See Appellee’s Br. at 11-12 n.9 (quoting stipulation); see also State v. Hagen, 858

P.2d at 925 (staying state court cases at state’s request pending federal proceedings). The

federal district court in Utah subsequently issued an injunction incorporating the terms of

the state’s stipulation. See Ute Indian Tribe, 75-C-408 (D. Utah), Order dated Sept. 2,

1992, at 1-2, quoted in Appellee’s Br. at 12 n.9.

In 1994, the Supreme Court handed down its opinion in Hagen v. Utah, 114 S. Ct.

958 (1994). Hagen involved a state criminal judgment obtained for acts committed

within the Reservation boundaries established by Ute Indian Tribe. Interpreting

Congress’s intent in opening the Reservation to non-Indian settlement, and noting among

other factors our decision in Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d

1387, 1400 (10th Cir.) (criticizing Ute Indian Tribe’s conclusion as “unexamined and

unsupported in the opinion,” though leaving its viability intact), cert. denied, 498 U.S.

1012 (1990), the Supreme Court held that the state had jurisdiction to prosecute Hagen

because Congress had diminished the Uintah Reservation in the early 1900s. See Hagen,

3
The defendants in these state cases did not assert that the state of Utah, which had
intervened in the Ute Indian Tribe litigation, was collaterally estopped from relitigating
the Reservation boundaries. See Hagen v. Utah, 114 S. Ct. at 964-65.

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114 S. Ct. at 967, 970. The Hagen decision effectively overruled the contrary conclusion

reached in the Ute Indian Tribe case, redefined the Reservation boundaries resulting from

our earlier decision, and conclusively settled the question.

The movants in the instant cases are Indians sentenced to federal prison for crimes

committed in violation of federal law during the time the Ute Indian Tribe decisions were

in effect. In 1982, movant Audie Appawoo pled guilty to second degree murder under 18

U.S.C. §§ 1111 and 1153 for a homicide he committed near Tridell, Utah.4 In 1992,

movant Kim Ford Cuch pled guilty to sexual abuse under 18 U.S.C. §§ 2242(2)(B) and

1153 and abusive sexual contact under 18 U.S.C. §§ 2244(a)(1) and 1153 for sexual

misconduct he committed in Roosevelt, Utah.5 The conduct underlying each of these

offenses must be prosecuted in federal court if it takes place in “Indian country,” see 18

U.S.C. § 1153(a), defined by Congress to include “all land within the limits of any Indian

reservation under the jurisdiction of the United States Government,” id. § 1151. See

Negonsott v. Samuels, 113 S. Ct. 1119, 1121-22 (1993). As indicated above, at the time

Appawoo and Cuch each pled guilty, the law in this circuit recognized the areas in which

4
At oral argument, counsel for the government represented, and counsel for
Appawoo did not dispute, that the charge to which Appawoo pled guilty identified the
crime scene as “near Tridell” and characterized the location as “within Indian country.”
See also Appawoo Br. app. D (deed identifying property where homicide occurred).
5
Cuch pled guilty to the charges in an indictment and a felony information, each of
which characterized the location of the crimes as “within Indian country.” Furthermore,
Cuch’s Statement in Advance of Plea of Guilty, which the district court read on the record
in open court, admitted that the sexual offenses occurred in Roosevelt city. See Cuch R.
Vol. I, Tab 9, at 24-25 n.26.

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each movant committed his criminal acts as part of the Uintah Reservation, mandating

exclusive federal jurisdiction.

Following the Hagen decision, Cuch moved to vacate his sentence pursuant to 28

U.S.C. § 2255. He argued that the federal court had no jurisdiction over him because the

sexual abuse crimes to which he pled guilty did not take place in Indian country as

defined by Hagen. The case was referred to a magistrate judge, who recommended

granting the motion and immediately releasing Cuch. The district court denied the

motion, however, declining to apply Hagen retroactively on collateral review. See Cuch

v. United States, 875 F. Supp. 767 (D. Utah 1995).

Appawoo likewise moved to vacate his murder sentence under § 2255, raising the

same issue. The district court in that case relied on the decision in Cuch to deny the

motion in an unpublished order. See Appawoo R. Vol. I, Tab 24. Both Cuch and

Appawoo now appeal, incorporating the report and recommendation of the magistrate

judge in Cuch as the primary basis for their arguments. See Cuch Br. at 4-5 & app. D;

Appawoo Br. at 7.

DISCUSSION

We note at the outset that we may properly examine a district court’s subject

matter jurisdiction on collateral review. See 28 U.S.C. § 2255; United States v. Cook,

997 F.2d 1312, 1320 (10th Cir. 1993) (“[J]urisdictional issues are never waived and can

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be raised on collateral attack . . . .”). We review jurisdictional issues de novo. E.g.,

Kelley v. Michaels, 59 F.3d 1055, 1057 (10th Cir. 1995). These motions present

additional, related legal issues that are likewise subject to our plenary review. See United

States v. Maher, 919 F.2d 1482, 1485 (10th Cir. 1990). We address each of these issues

in turn.

1.

The Supreme Court can and does limit the retroactive application of subject matter

jurisdiction rulings.6 For example, in O’Callahan v. Parker, 395 U.S. 258 (1969),

overruled by Solorio v. United States, 483 U.S. 435 (1987), the court held that

constitutional restraints deprived military courts of jurisdiction to try individuals for

nonservice connected crimes. Nevertheless, in Gosa v. Mayden, 413 U.S. 665 (1973), the

Court refused to apply its ruling retroactively to invalidate convictions on collateral

review.

Likewise, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458

U.S. 50 (1982), the Court held that the Bankruptcy Act of 1978 had unconstitutionally

6
See generally Linkletter v. Walker, 381 U.S. 618, 629 (1965) (“[W]e are neither
required to apply, nor prohibited from applying, a decision retrospectively . . . .”); Great
No. Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364 (1932) (Cardozo, J.) (U.S.
Constitution has “no voice upon the subject” of retroactivity; courts are free to apply
judicial decisions prospectively, in their discretion, “whenever injury or hardship will
thereby be averted”).

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vested Article I bankruptcy courts with power to determine certain questions reserved to

Article III courts. Faced with the inevitable consequences of its decision, the Supreme

Court determined to apply its decision prospectively only. Id. at 87-88, 92; cf. Buckley v.

Valeo, 424 U.S. 1, 140-43 (1976) (per curiam) (prospectively invalidating adjudicatory

power of Federal Election Commission); Chicot County Drainage Dist. v. Baxter State

Bank, 308 U.S. 371, 374-77 (1940) (prospectively invalidating bankruptcy jurisdiction);

supra note 6.7

The law on the point is settled in our circuit. Before the Supreme Court decided

Gosa, we reached a similar conclusion regarding the prospectivity of O’Callahan, as did

several other courts. See Schlomann v. Moseley, 457 F.2d 1223, 1227-30 (10th Cir.

1972), cert. denied, 413 U.S. 919 (1973). In Schlomann, we recognized the clear

“jurisdictional basis” of O’Callahan, but nevertheless concluded that prospective

application was more appropriate under the circumstances. Id. at 1226, 1227-30.

7
Concededly, the point is not without dispute. In Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 379 (1981), Justice Marshall wrote for the Court that “[a] court
lacks discretion to consider the merits of a case over which it is without jurisdiction, and
thus, by definition, a jurisdictional ruling may never be made prospective only.” The
prospective jurisdictional ruling in Marathon, in which Justice Marshall joined, makes no
mention of the Risjord decision. However, commentators have noted the discrepancy
between what the Supreme Court said in Risjord and what it did in Marathon. See, e.g.,
John Bernard Corr, Retroactivity: A Study in Supreme Court Doctrine “As Applied”, 61
N.C. L. Rev. 745, 790-92 (1983) (discussing “Retroactivity for Jurisdictional Matters”);
see also Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988) (quoting Risjord
without mentioning Marathon).

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 The argument that a jurisdictional ruling such as Hagen should not be applied

retroactively to cases on collateral review is based on principles of finality and

fundamental fairness. As the Court emphasized in Teague v. Lane, 489 U.S. 288, 309

(1989), “the principle of finality . . . is essential to the operation of our criminal justice

system.” Consequently,

“[t]he interest in leaving concluded litigation in a state of repose . . . may
quite legitimately be found by those responsible for defining the scope of
the writ to outweigh in some, many, or most instances the competing
interest in readjudicating convictions according to all legal standards in
effect when a habeas petition is filed.”

Id. at 306 (quoting Mackey v. United States, 401 U.S. 667, 683 (1971) (Harlan, J.,

concurring in judgments in part, dissenting in part)).8 Hagen was decided after these

movants’ convictions became final.9 Its result “was not dictated by precedent existing at

[that] time.” Id. at 301 (emphasis omitted). Thus, its holding should not provide the basis

for a collateral attack in these cases. See Gilmore v. Taylor, 113 S. Ct. 2112, 2116

8
This overriding interest in finality is a primary factor distinguishing collateral
review from direct review for due process purposes. See Teague, 489 U.S. at 304-10;
Griffith v. Kentucky, 479 U.S. 314, 321-24 (1987); Yates v. Aiken, 484 U.S. 211, 215
(1988) (noting “the important distinction between direct review and collateral review”);
Pennsylvania v. Finley, 481 U.S. 551, 555-59 (1987) (due process does not require
appointment of counsel on collateral review, though it does on direct review); Shea v.
Louisiana, 470 U.S. 51, 58 & n.4 (1985) (distinguishing collateral review from direct
review for retroactivity purposes). But cf. Movants’ Briefs at 13 (arguing on collateral
review that prosecution of these movants in federal court violated due process).
9
“By ‘final,’ we mean a case in which a judgment of conviction has been rendered,
the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a
petition for certiorari finally denied.” Griffith, 479 U.S. at 321 n.6.

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(1993); Gosa, 413 U.S. at 678-79 (applying retroactivity test for new criminal procedure

rules on collateral review); Schlomann, 457 F.2d at 1228 (same); see also infra part 3.a

(distinguishing cases narrowing the scope of federal crimes).

A subset of the principle of finality is the prospect that the invalidation of a final

conviction could well mean that the guilty will go unpunished due to the impracticability

of charging and retrying the defendant after a long interval of time. “Wholesale

invalidation of convictions rendered years ago could well mean that convicted persons

would be freed without retrial, for witnesses . . . no longer may be readily available,

memories may have faded, records may be incomplete or missing, and physical evidence

may have disappeared.” Gosa, 413 U.S. at 685. Furthermore, retroactive application

“would surely visit substantial injustice and hardship upon those litigants who relied upon

. . . jurisdiction in the [federal] courts,” Marathon, 458 U.S. at 88, particularly victims and

witnesses who have relied on the judgments and the finality flowing therefrom.

Retroactivity would also be unfair to law enforcement officials and prosecutors, not to

mention the members of the public they represent, who relied in good faith on binding

federal pronouncements to govern their prosecutorial decisions. “Society must not be

made to tolerate a result of that kind when there is no significant question concerning the

accuracy of the process by which judgment was rendered . . . .” Gosa, 413 U.S. at 685.

2.

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 These and similar reasons weigh in favor of nonretroactivity in these cases. There

is no question of guilt or innocence here. Appawoo pled guilty to murder. Cuch pled

guilty to sexual assault and related crimes. Each of the cases involved conduct made

criminal by both state and federal law.10

Consequently, the question before the court focuses on where these Indian

defendants should have been tried for committing major crimes. As in O’Callahan, “[t]he

question was not whether [the petitioners] could have been prosecuted; it was, instead,

one related to the forum, that is, whether, as we have said, the exercise of jurisdiction by a

. . . tribunal, pursuant to an act of Congress, . . . was appropriate . . . .” Gosa, 413 U.S. at

677 (emphasis added); see also Schlomann, 457 F.2d at 1227 n.5. Nor do the movants

assert any unfairness in the procedures by which they were charged, convicted, and

sentenced upon their guilty pleas. Nothing in Hagen brings into question the truth finding

functions of the federal courts that prosecuted Indians for acts committed within the

historic boundaries of the Uintah Reservation. As was true of the courts-martial

predating O’Callahan, the federal criminal judgments at issue here produced an accurate

10
The crimes of which the movants were convicted fall within a congressionally
defined list that includes “murder, manslaughter, kidnapping, maiming, [sexual abuse],
incest, assault with intent to commit murder, assault with a dangerous weapon, assault
resulting in serious bodily injury . . ., an assault against an individual who has not attained
the age of 16 years, arson, burglary, robbery, and [theft].” 18 U.S.C. § 1153(a); see also
Utah Code Ann. §§ 76-5-201 to -209 (defining state criminal homicide); id. §§ 76-5-401
to -411 (defining state sexual offenses). Federal law requires that such conduct be
punished by reference to state law if no federal statute defining the crime exists at the
time. See 18 U.S.C. § 1153(b).

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picture of the conduct underlying the movants’ criminal charges and provided adequate

procedural safeguards for the accused. See Gosa, 413 U.S. at 680-81.11

We emphasize that these are cases on collateral review. The convictions are final.

Direct appeal times have passed. Furthermore, the federal courts were the only tribunals

available, both pursuant to our decisions and by intergovernmental pact. The state of

Utah was barred from prosecuting such crimes from 1976 to 1994 by state stipulations

and orders, federal injunctions, and conclusive federal litigation to which it was a party.

Case law binding the state, affirmed by this court sitting en banc, with certiorari denied by

the Supreme Court, required exclusive federal jurisdiction. During that time, there was

no legal or practical alternative for prosecuting the movants, thereby distinguishing any

Indian jurisdiction case cited to us in the briefs12 and making the case for prospectivity

even stronger here than in Gosa.13

11
In fact, as the government points out, the movants had available to them the
benefits of indictment by grand jury and trial by jury -- the very rights missing in courts-
martial and therefore driving O’Callahan’s decision to limit military jurisdiction -- thus
presenting an even stronger case for prospectivity than in Gosa.
12
See Duro v. Reina, 495 U.S. 676, 696-98 (1990) (identifying possible
jurisdictional alternatives to tribal court for nonmember Indian crimes); Washington v.
Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979); United
States v. John, 437 U.S. 634 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978); Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351
(1962).
13
See Gosa, 413 U.S. at 669 (civilian court available to try Gosa). As counsel for
the government aptly put it at oral argument, requiring that Indian prosecutions proceed in
federal court, only to later hold that such prosecutions should have proceeded in state
(continued...)

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 The chances now of a successful prosecution in a state forum after this long

passage of time are slim. The evidence is stale and the witnesses are probably

unavailable or their memories have dimmed. Adopting the movants’ retroactivity

argument would effectively create, in the words of the district court, an “ex post facto

lawless zone” for major crimes committed by Indians in the Uintah Basin between 1976

and 1994. See Cuch, 875 F. Supp. at 769. Finally, the violent and abusive nature of the

underlying criminal conduct involved here is no small factor, along with the burdens that

immediate release of these prisoners would place directly on victims (regardless of

whether the offenders are reprosecuted), many of whom are child victims of sexual abuse.

See Appellee’s Br. at 42.

3.

a.

The movants cite two lines of cases for the proposition that Hagen must be applied

retroactively to invalidate their convictions. The first line of cases stems from United

States v. Johnson, 457 U.S. 537 (1982), in which the Court noted that in certain “narrow

categories of cases, the answer to the retroactivity question has been effectively

(...continued)
13

court, would create the “ultimate legal catch-22.”

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determined . . . through application of a threshold test” rather than by balancing

competing concerns. Id. at 548.

The movants rely for their argument on one of these categories, comprising cases

in which the Supreme Court “has recognized full retroactivity as a necessary adjunct to a

ruling that a trial court lacked authority to convict or punish a criminal defendant in the

first place.” Id. at 550 (citing United States v. United States Coin & Currency, 401 U.S.

715, 724 (1971); Robinson v. Neil, 409 U.S. 505, 509 (1973); Ashe v. Swenson, 397 U.S.

436, 437 n.1 (1970); Moore v. Illinois, 408 U.S. 786, 800 (1972)). However, in each of

these cases, the Constitution either immunized the underlying conduct from punishment

in any court or prevented a trial from taking place at all. Id. at 550; Gosa, 413 U.S. at

677, 678-79; Schlomann v. Moseley, 457 F.2d 1223, 1227 n.5 (10th Cir. 1972), cert.

denied, 413 U.S. 919 (1973); see United States Coin & Currency, 401 U.S. at 723-24

(invalidating forfeiture proceedings following conviction obtained in violation of

privilege against self-incrimination); Robinson, 409 U.S. at 509 (preventing prosecution

on double jeopardy grounds); Ashe, 397 U.S. at 437 n.1 (1970) (same); Moore, 408 U.S.

at 800 (preventing capital punishment on Eighth Amendment grounds).

In the instant cases, “[o]ur concern, instead, is with the appropriateness of the

exercise of jurisdiction by a . . . forum” over cases involving “offense[s] . . . for which the

defendant was not so immune.” Gosa, 413 U.S. at 677, 679. Gosa, which closely

parallels the instant cases, found the line of cases cited in Johnson distinguishable, and so

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do we. See id.; see also Schlomann, 457 F.2d at 1227 n.5; cf. Johnson, 457 U.S. at 549-

50 (excluding Gosa from this category of cases); Corr, supra note 6, at 790-92

(contrasting Gosa with United States Coin & Currency and Robinson). Those cases are

simply not controlling and therefore do not require retroactivity.14

The movants also cite to a second line of cases in which substantive

nonconstitutional decisions concerning the reach of a federal statute were afforded

complete retroactivity. Davis v. United States, 417 U.S. 333 (1974); United States v.

Shelton, 848 F.2d 1485 (10th Cir. 1988) (en banc); United States v. Sood, 969 F.2d 774

(9th Cir. 1992); see also United States v. Dashney, 52 F.3d 298 (10th Cir. 1995). In each

of these cases, the courts determined that a new Supreme Court interpretation of a

criminal statute, which narrowed the scope of the relevant crime, should be applied

retroactively on collateral review. The courts relied on the new decisions to vacate the

convictions, holding that the petitioners had been convicted for conduct Congress had

never made criminal.

These cases are distinguishable on their face. Hagen did not purport to narrow the

scope of the federal criminal statutes under which the movants pled guilty so as to

14
The Johnson Court also cited to the dissenting opinions in Gosa, 413 U.S. at 693,
and Michigan v. Payne, 412 U.S. 47, 61 (1973), where Justice Marshall argued, based on
the cases we have just distinguished, that retroactivity is mandated when a later decision
determines a trial court lacked jurisdiction in the traditional sense. Johnson, 457 U.S. at
550-51. But see Gosa, 413 U.S. at 685-86 (applying O’Callahan prospectively only); id.
at 678 (noting that Payne afforded North Carolina v. Pearce, 395 U.S. 711 (1969),
prospective application using conventional retroactivity analysis).

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exclude the conduct -- homicide and abusive sexual acts -- underlying their criminal

judgments. To the contrary, Congress clearly intended that such conduct be made

criminal and be punished in federal court whenever state court jurisdiction was lacking.

See 18 U.S.C. §§ 1152-1153; see also supra part 2 (discussing lack of state jurisdiction

over Indians in Uintah Basin between 1976 and 1994). But cf. Sood, 969 F.2d at 775

(Congress did not intend 18 U.S.C. § 666 to apply in Territory of Guam). Davis, Shelton,

and Sood have no application in the instant cases.

Finally, we find no “exceptional circumstances” or other conditions resulting in a

“complete miscarriage of justice” to these movants that would mandate or counsel

retroactive application of Hagen to invalidate these convictions. See Davis, 417 U.S. at

346; Shelton, 848 F.2d at 1489. As set out above, we find no indication that an innocent

person may have been convicted for crimes he did not commit. See Murray v. Carrier,

477 U.S. 478, 496 (1986). Rather, we find that substantial justice took place in the only

judicial forum available for prosecution at the time the crimes were committed. We are

satisfied that the primary goal of habeas review -- “‘insuring the reliability of the guilt-

determining process’” -- has been met in these cases. See Paul J. Mishkin, The High

Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 80

(1965) (quoting Kadish, Methodology and Criteria in Due Process Adjudication -- A

Survey and Criticism, 66 Yale L.J. 319, 346 (1957)).

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 In sum, we find the circumstances surrounding these cases make prospective

application of Hagen unquestionably appropriate in the present context.15

b.

The movants also rely on the point made by the learned magistrate judge that

Hagen did not effect a “change” in federal law, but merely clarified what had been the

law all along. See Report & Recommendation, Cuch R. Vol. I, Tab 10, at 14-15. Under

this approach, Ute Indian Tribe “made an erroneous interpretation of federal law and the

Utah courts made the correct interpretation.” Id. at 15. “Congress had already defined

the limits of federal jurisdiction. . . . It was the inability to see the jurisdictional line

drawn by Congress that created the problem.” Id. at 21. Retroactivity under such

reasoning was axiomatic.

The magistrate judge’s analysis partakes of the Blackstonian common law view

that courts do no more than discover the law. Linkletter v. Walker, 381 U.S. 618, 622-23

(1965). “The Blackstonian view ruled English jurisprudence and cast its shadow over our

own” through much of our jurisprudential history. Id. at 624. But American law,

drawing, as it does, from experience, gradually recognized that “such a rule was out of

tune with actuality.” Id.; see also id. at 629. In time, the Supreme Court admitted that

Our decision is bolstered by our confidence that Gosa -- the Supreme Court case
15

most closely aligned with our issue -- would reach the same conclusion today as it did 23
years ago, despite significant intervening changes in retroactivity law.

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“[t]he past cannot always be erased by a new judicial declaration.” Chicot County

Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940). “Questions of rights

claimed to have become vested, of status, of prior determinations deemed to have finality

and acted upon accordingly, of public policy in the light of the nature both of the statute

and of its previous application, demand examination.” Id. In short, while a judicial

decision is in effect, “it is . . . an existing juridical fact.” Linkletter, 381 U.S. at 624

(discussing Austinian view).

This latter view is now firmly established in the federal courts. “[T]he accepted

rule today is that in appropriate cases the Court may in the interest of justice make the

rule prospective.” Id. at 628.16 While the jurisdictional nature of a holding makes the

retroactivity question “more critical,” the nature of the case alone “does not dispense with

the duty to decide whether ‘the Court may in the interest of justice make the rule

prospective . . . where the exigencies of the situation require such application.’”

Schlomann, 457 F.2d at 1227 (quoting Johnson v. New Jersey, 384 U.S. 719, 726-27

(1966) (quoting Linkletter, 381 U.S. at 628)).

16
While later cases have overruled the specific retroactivity test announced in
Linkletter, see, e.g., Griffith v. Kentucky, 479 U.S. 314 (1987), the cases have continued
to recognize the validity of Linkletter’s underlying premise that retroactivity generally is
not compelled in our courts, see, e.g., id.; Teague v. Lane, 489 U.S. 288 (1989). The
Linkletter Court opined that “‘there is much to be said in favor of such a rule for cases
arising in the future.’” Linkletter, 381 U.S. at 628 (quoting Mosser v. Darrow, 341 U.S.
267, 276 (1951) (Black, J., dissenting)). For the reasons already expressed in this
opinion, we think the instant cases present a vivid illustration of this point.

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 While prospectivity may be the exception rather than the rule, these cases present

the type of extraordinary circumstances that justifies applying the exception.17 Thus, we

respectfully disagree with the magistrate judge that our judicial hands are tied on the

retroactivity question when justice requires a different result. Rather, we agree with the

district court that our conclusion illustrates how “[t]he rule of law is strengthened when

courts, in their search for fairness, giving proper consideration to the facts and applicable

precedent, allow the law to be an instrument in obtaining a result that promotes order,

justice and equity.” Cuch, 875 F. Supp. at 772.

CONCLUSION

As indicated above, the central underlying question is whether the Supreme Court

has the power to limit the retroactive effect of its rulings in cases similar to the ones

before us. We conclude that the Court -- and, by extension, our court -- does have that

power. Applying that principle, we further conclude that we can and should apply Hagen

v. Utah prospectively only with respect to federal criminal convictions on collateral

review. Principles of finality and fairness dictate such a result, and no controlling

At the same time, we recognize the continuing validity of Shelton and similar
17

cases, which are not affected by this decision. See supra part 3.

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authority mandates retroactivity. Accordingly, we AFFIRM the decisions of the district

court denying these § 2255 motions.18

18
Because of our disposition of these appeals, we need not address the
government’s argument that the movants are barred from attacking their criminal
judgments on collateral review under United States v. Broce, 488 U.S. 563 (1989),
because they entered counseled, voluntary guilty pleas admitting to each essential element
of the crimes charged. See Cuch R. Vol. I, Tab 9, at 24-30; id. Tab 13, at 19-20; cf.
Cuch, 875 F. Supp. at 772 n.10. Accordingly, we need not examine the government’s
related contention that by stipulating to the location and character of the respective crime
scenes, the movants stipulated to facts from which jurisdiction may be inferred. See
supra notes 4-5.

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