Unpublished Disposition, 902 F.2d 38 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1989)

Layton FAY, Petitioner-Appellant,v.Richard THORNBURG, Respondent-Appellee.

No. 89-35607.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1990.* Decided April 27, 1990.

Before TANG, NELSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Layton Fay, a federal prisoner, appeals pro se and in forma pauperis the district court's dismissal of an action which Fay designates a 28 U.S.C. § 2241 petition for a writ of habeas corpus. Fay was apparently convicted of four counts of assault resulting in serious bodily injury, as proscribed by 18 U.S.C. § 113(f). Pursuant to 18 U.S.C. § 1153, federal jurisdiction was premised on Fay's supposed "Indian" status, and the occurrence of the crimes "within the Indian country."

* Prior to issuance and service of process, the district court found Fay's original petition to be defective, and twice ordered Fay to amend it. The court found the amendments inadequate, however, and on August 21, 1989, dismissed Fay's several petitions without prejudice.1  The court did not enter a separate civil judgment, nor did it explicitly state that it was dismissing Fay's action in its entirety. Yet the dismissal order is appealable because the district court intended that it dispose of the entire action. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987).2 

II

Fay was entitled to service of his petitions, so long as they were not frivolous. Neitzke v. Williams, 109 S. Ct. 1827, 1832-34 (1989); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). Because Fay's petitions were dismissed before the respondent was served, the district court presumably found the petitions frivolous within the meaning of 28 U.S.C. § 1915(d).3  Under section 1915(d), a complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke, 109 S. Ct. at 1831. We review de novo such determinations. Jackson, 885 F.2d at 640.

Fay's petitions, liberally construed per Haines v. Kerner, 404 U.S. 519, 520-21 (1972), present three attacks on the jurisdiction of the federal court that tried him. Fay also complains of his transfer from a federal prison to a state prison.

* Fay's first jurisdictional argument is that because he was not an officially enrolled member of an Indian tribe, the federal trial court lacked subject matter jurisdiction. This claim is not frivolous.

Under section 1153, "Indian" status is a jurisdictional prerequisite. United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977), cert. denied, 439 U.S. 841 (1978). Although this court has indicated that tribal enrollment should not be necessary for jurisdiction to attach under section 1153, United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir.), cert. denied, 444 U.S. 859 (1979), the Supreme Court has left the question open. United States v. Antelope, 430 U.S. 641, 646 n. 7 (1977). This leaves Fay with an arguable basis in law, precluding dismissal under section 1915(d). See Neitzke, 109 S. Ct. at 1831.

B

Fay's second argument is that, if the trial court obtained jurisdiction under section 1153 even though Fay was not an enrolled tribal member, then the jurisdictional statute is unconstitutional because it discriminates on the basis of race. This question also may have some merit. Although the Antelope decision held that criminal jurisdiction over Indians based on section 1153 did not discriminate on the basis of a constitutionally suspect classification, its holding was premised in part on the defendants' status as enrolled members of a tribe. 430 U.S. at 646. Therefore, Fay's argument here has some basis in law; it is not frivolous. See Neitzke, 109 S. Ct. at 1831.

C

Third, Fay asserts that section 1153 is a nullity because Congress can only bestow criminal jurisdiction over an American Indian pursuant to a treaty. This issue, which Fay incorrectly frames in terms of a violation of the ex post facto clause, is frivolous. Congress may define federal criminal jurisdiction over Indians by statute rather than by treaty. United States v. Kagama, 118 U.S. 375, 382-84 (1886). Because this claim lacks any arguable basis in law, it was properly dismissed as frivolous. See Neitzke, 109 S. Ct. at 1831.4 

D

Aside from his jurisdictional arguments, Fay also complains of his transfer from a federal prison in Kansas to a state prison in Washington. However, a prisoner has no due process right directly under the fifth or fourteenth amendments to a hearing in connection with a transfer between prisons. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983) (interstate transfer of state prisoner); Brown-Bey v. United States, 720 F.2d 467, 470 (7th Cir. 1983) (extending Olim to federal prisoners). Fay points to several sources apart from the Constitution in an effort to show a liberty interest entitling him to due process. See Olim, 461 U.S. at 248-51. Although most of the sources to which Fay points do not contain the "substantive limitations on official discretion" necessary to show a liberty interest, id. at 249, we have not been able to examine the "Intergovernmental Agreement" to which Fay cites.

We need not decide whether this last claim is frivolous. For the purpose of ordering issuance and service of process, it is sufficient that Fay has presented at least one claim that is not frivolous. See Jackson, 885 F.2d at 641.

REVERSED AND REMANDED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Thus, the respondent was never served with process. On this appeal, respondent does not enter an appearance

 2

The district court manifested this intention in several ways. For example, in construing Fay's notice of appeal as a request for a 28 U.S.C. § 2253 certificate of probable cause, the district court was silent as to whether an appeal was proper. From this, one may infer that the court regarded its dismissal order as final

 3

Dismissal may also have been pursuant to 28 U.S.C. § 2255, Rule 4(b) of the Rules Governing Section 2255 Proceedings, or Rule 4 of the Rules Governing Section 2254 Proceedings. Whatever the statutory basis for dismissal, the legal standard for frivolousness remains the same. See Lopez v. United States, 439 F.2d 997, 999 (9th Cir. 1971)

 4

To the extent that Fay's petitions attack the jurisdiction of the trial court, they possibly should have been brought as motions to vacate sentence pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255 (providing for attack on jurisdiction of sentencing court); United States v. Hayman, 342 U.S. 205, 223 (1952) (federal prisoner must bring section 2255 motion in lieu of section 2241 petition unless the former is "inadequate or ineffective"). On remand, and subsequent to issuance and service of process, the parties and the district court should consider whether the court has jurisdiction in view of the possibility that Fay's petitions should be construed, in part, as section 2255 motions. See Williams v. Heritage, 250 F.2d 390, 391 (9th Cir. 1957) (jurisdiction rests in sentencing court); Rule 4(a) of the Rules Governing Section 2255 Proceedings. If jurisdiction is lacking, the district court should consider whether a transfer is appropriate pursuant to 28 U.S.C. § 1631