United States v. Pemberton

94 F.4th 1130

UNITED STATES of America, Plaintiff - Appellee, v. Paul Curtis PEMBERTON, Defendant - Appellant.

No. 22-7028

United States Court of Appeals, Tenth Circuit

FILED March 4, 2024

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-0012-JFH-1)

Timothy C. Kingston, Law Office of Tim Kingston, Foley, Alabama (Paul T. Lund, Burleson, Pate & Gibson, Dallas, Texas, with him on the briefs), for Defendant-Appellant.

James R.W. Braun, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), United States Attorney's Office, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before TYMKOVICH, BRISCOE, and MORITZ, Circuit Judges.

TYMKOVICH, Circuit Judge.

This appeal requires that we consider the ongoing ramifications of the United States Supreme Court's decision in McGirt v. Oklahoma, — U.S. —, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020). In that case, the Court ruled that the Muscogee (Creek) Nation Reservation covered a larger area of eastern Oklahoma than previously acknowledged by both the state and federal governments. As a result, many crimes that had been committed in what was previously believed to be outside of tribal jurisdictions were actually committed within tribal jurisdictions—meaning that for many decades state criminal cases were prosecuted in the wrong jurisdiction.

Paul Pemberton falls within this class of defendants. In 2004, he was convicted of a murder committed in McIntosh County, Oklahoma. Following the McGirt decision and related decisions in Oklahoma, McIntosh County has been determined to straddle the Creek Nation and the Cherokee Nation reservations. As we explain in greater detail below, the murder, certain parts of the investigation, and Mr. Pemberton's arrest occurred within these reservations. And Mr. Pemberton was prosecuted and convicted for the murder in an Oklahoma state court. The problem arises because the Major Crimes Act confers exclusive federal jurisdiction over any Indian who commits murder within Indian country. 18 U.S.C. § 1153. This implies that the federal government should have investigated the crime, and Mr. Pemberton should have been prosecuted in federal court.

After the McGirt decision in 2020 confirmed that longstanding assumptions about the scope of reservation boundaries were incorrect, many state inmates who are enrolled members of Indian tribes sought to challenge their convictions. Mr. Pemberton, an enrolled member of the Creek Nation, chose to do so. He applied for post-conviction relief in Oklahoma state court, contending that his conviction was invalid. Mr. Pemberton argued that the State of Oklahoma lacked jurisdiction over the crime since it occurred in Indian Country and because he was an enrolled member of the Creek Nation at the time.¹

The Oklahoma state court denied Mr. Pemberton's request to void his final state conviction, relying largely on the Oklahoma Court of Criminal Appeals' holding in State ex rel. Matloff v. Wallace, 2021 OK CR 21, 497 P.3d 686. See Pemberton v. Oklahoma, CF-2004-57, Doc. #CC21110300000018 (Dist. Ct., McIntosh Cnty. Nov. 3, 2021).² The Oklahoma Court of Criminal Appeals affirmed that denial. See Pemberton v. Oklahoma, No. PC-2021-1396 (Okla. Crim. App. 2022).³

As state habeas proceedings were pending, a federal grand jury indicted Mr. Pemberton for the 2004 murder—perhaps a proactive measure in anticipation of the post-McGirt jurisdictional vulnerabilities. R. Vol. 1 at 15-16. Before the federal trial court, Mr. Pemberton moved to suppress all evidence gathered and statements obtained during the 2004 state investigation. R. Vol. 1 at 41. He argued that "neither McIntosh County nor the state of Oklahoma had jurisdiction to investigate, arrest or interrogate Indian persons on Indian Country" because "under the Major Crimes Act, the federal government had exclusive jurisdiction over [the] crime." R. Vol. 1 at 45.

The district court denied Mr. Pemberton's suppression motion, and a federal jury convicted him on all counts. At sentencing, Mr. Pemberton asked to proceed without a lawyer—a right protected by the Sixth Amendment. The district court denied that request, allowing appointed counsel to continue to represent Mr. Pemberton throughout the sentencing phase.

Mr. Pemberton appeals both denials. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We conclude that state investigatory officers acted consistently with the prevailing factual and legal landscape at the time, and thus acted in good faith. The district court did not err in declining to suppress the evidence developed in the investigation. We also conclude the district court did not err by allowing appointed counsel to represent Mr. Pemberton in the sentencing proceedings.

I. Background

We start with Mr. Pemberton's arrest in 2004.

Donald Pemberton called 911, stating that his son—Paul Curtis Pemberton—shot his wife—DeAnna Pemberton—at their home in Checotah, Oklahoma. Dispatch contacted McIntosh County Deputy Dewayne Hall, and Deputy Hall drove to the residence in his personal truck. R. Vol. 1 at 137. Deputy Hall was the first law enforcement officer to arrive at the scene. Id. Upon arrival, Deputy Hall noticed Mr. Pemberton sitting atop a truck's tailgate. Deputy Hall exited his patrol car, drew his weapon, and ordered Mr. Pemberton to the ground. After that, Deputy Hall handcuffed Mr. Pemberton and searched him. Id. Three Checotah Police Department deputies and McIntosh County Sheriff's Office deputies arrived next on the scene. R. Vol. 1 at 62; R. Vol. 2 at 904.

McIntosh County Sheriff Jeff Coleman, who lived three miles down the road, responded next. R. Vol. 1 at 280. Once he arrived, he approached an already handcuffed Mr. Pemberton, who was lying face down on the ground. As Sherriff Coleman drew near, Mr. Pemberton looked up at him and said that the victim—his stepmother, DeAnna—"drove [him] crazy" and that he "w[ould] not talk to anyone but [Sheriff Coleman]." R. Vol. 1 at 74. Sheriff Coleman then escorted Mr. Pemberton to his patrol car and read him his Miranda warning. Id. Sheriff Coleman asked Mr. Pemberton whether he understood each right, and Mr. Pemberton acknowledged that he did. Id. Mr. Pemberton then admitted to the murder and was transported to McIntosh County jail—located within the Muscogee (Creek) Nation Reservation. R. Vol. 1 at 231

Once at the county jail, Oklahoma State Bureau of Investigation (OSBI) agent John Jones interviewed Mr. Pemberton—who again confessed to shooting his stepmother. Later, an Oklahoma state judge authorized a warrant to search Mr. Pemberton's truck parked outside the Pemberton home. State officials executed the warrant, finding in Mr. Pemberton's truck .22 caliber ammunition and a Wal-Mart receipt for ammunition. Mr. Pemberton was later charged with first-degree murder and possessing a firearm as a felon. A jury found him guilty on both counts, and he was sentenced to life without parole.

He challenges his federal conviction and sentencing on direct appeal.

II. Discussion

Mr. Pemberton argues that the district court made two distinct errors at two different stages of his federal case. First, he contends the district court erred at trial by declining to suppress the evidence obtained during the 2004 investigation into the murder. Second, he contends the district court erred at sentencing by denying him the constitutional right to represent himself.

We discuss each in turn.

A. Suppression of Evidence

Mr. Pemberton first argues that McIntosh County law enforcement lacked jurisdiction to investigate the crime, arrest him, or interrogate him because he was an enrolled tribal member on what McGirt subsequently determined to be a reservation. As a result, the district court should have suppressed all evidence flowing from his arrest, interrogation, and property searches. The district court rejected Mr. Pemberton's suppression arguments, applying the good-faith exception to the search warrant, arrest, and investigation to prevent the application of the Fourth Amendment's exclusionary remedy. That brings us to McGirt. It is undisputed that Mr. Pemberton's crime, arrest, and investigation occurred on what has retroactively been determined to be outside Oklahoma's jurisdiction. The question, therefore, is whether the officers were objectively reasonable in believing that they had jurisdiction. Historical context informs that inquiry.

While recognized now under McGirt as legally erroneous, Oklahoma state courts have "entertained prosecutions for major crimes by Indians on Indian allotments"—including in McIntosh County—"for decades[.]" McGirt, 140 S. Ct. at 2470-71. As the Oklahoma Supreme Court put it long ago, "Congress had not intended to 'except out of [Oklahoma] an Indian reservation.' " Id. at 2497 (Roberts, C.J., dissenting) (quoting Higgins v. Brown, 20 Okla. 355, 419, 94 P. 703 (1908)). Indeed, "at statehood, Oklahoma immediately began prosecuting serious crimes committed by Indians in the new state courts, and the federal government immediately ceased prosecuting such crimes in federal court." Id. at 2496 (emphasis added).

But more than a century later, the Oklahoma Supreme Court's articulation of state court jurisdiction proved incorrect. On July 9, 2020, the Supreme Court decided McGirt v. Oklahoma, holding that—contrary to decades-long understanding and prevailing practice—Congress did except the Creek Reservation out of Oklahoma. See McGirt, 140 S. Ct. at 2482; contra Higgins v. Brown, 20 Okla. 355 at 419, 94 P. 703. Having done so, and because Congress never properly disestablished the Creek Nation's reservation, much of eastern Oklahoma had been, and remained, Indian country. This misunderstanding implicated many parts of Oklahoma, including portions of the Cherokee Nation in McIntosh County where the murder here occurred.⁴

Perhaps recognizing the potential jurisdictional problem with Mr. Pemberton's state court...