2/26/98 Notice of Appeal Style of case: Dry, et al. vs Choctaw CFR Court, et al.

( )Amended NOA

( )Cross Appeal District Court Case No: CIV 98-011-S

( )Interlocutory Appeal

( )Update Item Tenth Circuit Case No:

Part I

Notice of appeal is enclosed to all parties (except to appellant in civil cases); NOA, docket entries, district court order and 20 (if applicable) are enclosed 10 1OCCA.

1. District Judge: Frank H. Seay

2. Official Court Reporter(s):

3. Fees:

USA: ( ) Fees waived

$105.00 filing fee: ($105.00) Paid ($ ) Due

Pauper Status: ( ) IFP GRANTED
( ) IFP DENIED
( ) IFP PENDING

State habeas cases: CPC STATUS ( ) DENIED

ORIGINAL FILE SENT:

Transcript:

( ) ordered ( ) not ordered

( ) not required ( ) no in-court hearing

( ) CJA pending ( ) CJA furnished

( ) pur. order furn. ( ) docket stmt. furn.

ORIGINAL RECORD SUPPLEMENT TO RECORD-SUPPLEMENT #

Pleadings: Vols. Pleadings: Vols.

Transcript: Vols. Transcript: Vols.

Exhibits: Vols. Exhibits: Vols.

Depositions: Vols. Depositions: Vols.

State Crt. Record: Vols. State Crt. Record: Vols.

Sealed: Vols. No. of Boxes: Sealed: Vols. No. of Boxes:

Signature of Clerk or Deputy Clerk:Phone: (918) 687-2471 Date: March 2, 1998

cc: Scott Morrison, Robert Rabon

APPCVRLT.1

DOUGLAS DRY, ROSIE BURLISON, and JUANITA McCONNELL,

Petitioners,

VS.

CFR COURT OF INDIAN OFFENSES FOR THE CHOCTAW NATION, JAMES WOLFE, Magistrate,

Respondents.

98 - 1027

Case No.

Case Name: Douglas Dry, Rosie Burlison and Juanita McConnell vs, CFR Court of Indian Offenses for the Choctaw Nation. James Wolfe. Magistrate

Court/Agency Appeal From: U.S. District Court for the Eastern District of Oklahoma

Court/Agency Docket No. CIV-98-011-S District Judge: Frank Seay

Party or Parties filing Notice of Appeal/Petition: Douglas Dry, Rosie Burlison, Juanita McConnell

I. TIMELINESS OF APPEAL OR PETITION FOR REVIEW

A. APPEAL FROM DISTRICT COURT

1. Date notice of appeal filed: February 26,1998

a. Was a motion filed for an extension of time to file the notice of appeal? If so, give the filing date of the motion, the date of any order disposing of the motion, and the deadline for filing notice of appeal: No

b. Is the United States or an officer or an agency of the United States a party to this appeal? No

2.Authority fixing time limit for filing notice of appeal:

Fed. R. App. 4 (a)(1) Fed. R. App. 4(a)(4)
Fed. R. App. 4 (a)(2) _ Fed. R. App. 4(a)(5)
Fed. R. App. 4 (a)(3) _ Fed. R. App. 4(b)
Other: _________________________________

3. Date final judgment or order to be reviewed was filed and entered on the district court docket sheet: February 2. 1998

4. Does the judgment or order to be reviewed dispose of all claims by and against all parties? See Fed. R. Civ. P. 54(b). Yes

(If the order being appealed is not final, please answer the following questions in this section.)

a. If not, did district court direct entry of judgment in accordance with Fed. R. Civ. P. 54(b)? When was this done?

b. If the judgment or order is not a final disposition, is it appealable under 28 U.S.C. § 1292(a)?

c. If none of the above applies, what is the specific statutory basis for determining that the judgment or order is appealable?

5. Tolling Motions. See Fed. R. App. P. 4(a)(4); 4(b).

a. Give the filing date of any motion under Fed. R. Civ. P. 50(b), 52(b), 59, 60, including any motion for reconsideration, and any motion for judgment of acquittal, for arrest of judgment or for new trial, filed in the district court:

b. Has an order been entered by the district court disposing of that motion, and, if so, when?

6. Bankruptcy Appeals. (To be completed only in appeals from a judgment, order or decree of a district court in a bankruptcy case or from an order of the Bankruptcy Appellate Panel.)

a. Are there assets of the debtor subject to administration by a district or bankruptcy court?

b. Please state the approximate amount of such assets, if known.

B. REVIEW OF AGENCY ORDER (To be completed only in connection with petitions for review or applications for enforcement filed directly with the Court of Appeals.)

1. Date petition for review was filed:

2. Date of the order to be reviewed:

3. Specify the statute or other authority granting the court of appeals jurisdiction to review the order:

4. Specify the time limit for filing the petition (cite specific statutory section or other authority):

C. APPEAL OF TAX COURT DECISION

1. Date notice of appeal was filed:

2. Time limit for filing notice of appeal:

3. Date of entry of decision appealed:

4. Was a timely motion to vacate or revise a decision made under the Tax Court's Rules of Practice, and if so, when?

II. LIST ALL RELATED OR PRIOR RELATED APPEALS IN THIS COURT WITH APPROPRIATE CITATION(S). If none, please so state.

None

III. GIVE A BRIEF DESCRIPTION OF NATURE OF ACTION AND RESULT BELOW.

A writ of habeas corpus filed by defendants held by the CFR Court of Indian Offenses of the Choctaw Nation challenging, among other things, the jurisdiction of the court prosecuting them.

IV. ISSUES RAISED ON APPEAL.

1. Whether defendants released on personal recognizance bond pending trial are "in custody" pursuant to 28 U.S.C. 2241(c).

2. Whether the Bureau of Indian Affairs may contract federal criminal jurisdiction to Choctaw Nation by a Public Law 93-638 contract when the tribe is specifically prohibited to exercise criminal jurisdiction pursuant to the Choctaw Constitution.

V. ADDITIONAL INFORMATION IN CRIMINAL APPEALS.

A. Was defendant sentenced under the sentencing guidelines issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)?

B. Does this appeal involve review under 18. U.S.C. § 3742(a) or (b) of the sentence imposed?

C. If the answer to question in B is yes, does the defendant also challenge the judgment of conviction?

D. Describe the sentence imposed. Was the sentence imposed after a plea of guilty?

F. Is defendant on probation or at liberty pending appeal?

G. If defendant was sentenced to less than one year, and was not placed on probation or is not at liberty pending appeal, does defendant move the court of appeals to expedite this appeal?

NOTE: In the event expedited review is requested, the defendant shall consider whether a transcript of any portion of the trial court proceedings is necessary for the appeal. Necessary transcripts must be ordered at the time of appeal by completing and delivering the transcript order form to the clerk of the district court when a notice of appeal is filed. Defendant/appellant must refrain from ordering any unnecessary transcript as this will delay the appeal. If the court orders this appeal expedited, it will set a schedule for preparation of necessary transcripts, for designation and preparation of the record on appeal, and for filing briefs. If issues other than sentencing are raised by this appeal, the court will decide whether bifurcation is desirable.

VI. INDICATE WHETHER ORAL ARGUMENT IS DESIRED IN THIS APPEAL. If so, please state why.

Yes. The issue of contracting federal criminal jurisdiction to an Indian tribe is one of first impression as far as petitioners can ascertain.

VII. ATTORNEY FILLING DOCKETING STATEMENT:

Name: Scott Kayla Morrison Telephone: 918-465-5033

Firm: Dry and Morrison Law Firm

Address: 103 1/2 West Main. Post Office Box 637 Wilburton. Oklahoma 74578

VIII. PLEASE IDENTIFY ON WHOSE BEHALF THE DOCKETING STATEMENT IS FILED:

A.
_ Appellant

X Petitioner

_ Cross-Appellant

B. PLEASE IDENTIFY WHETHER THE FILING COUNSEL IS

X Retained Attorney

_ Court-Appointed

Employed by a government entity (please specify........

_ Employed by the Office of the Federal Public Defender.

Signature
Attorney at Law

March 6, 1998
Date

NOTE: A copy of the court or agency docket entries, the final judgment or order appealed from, any pertinent findings and conclusions, opinions, or orders, any motion filed under Fed. R. Civ. P. 50(b), 52(b), 59, 60(b), including any motion for reconsideration, for judgment of acquittal, for arrest of judgment and for new trial, and the dispositive order, any motion for extension of time to file notice of appeal and the dispositive order, and the notice of appeal or petition for review must be attached to all copies of the Docketing Statement, except as otherwise provided in Section I of the instructions.

The original and four copies of this Docketing Statement must be filed.

This Docketing Statement must be accompanied by proof of service.

The following Certificate of Service may be used.

CERTIFICATE OF SERVICE

I, Scott Kayla Morrison , attorney for Petitioners Douglas Dry, Rosie Burlison and Juanita McConnell, hereby certify that on the 16th day of March, 1998, I sent a copy of the foregoing Docketing Statement to Robert L. Rabon, attorney for appellees, at Post Office Box 726, Hugo, Oklahoma 74743 by way of United States mail or courier.

Signature

March 16, 1998
Dated signed

Dry and Morrison Law Firm
103 1/2 West Main
Post Office Box 637
Wilburton, Oklahoma 74578

CIVIL DOCKET FOR CASE #: 98-CV-11

Dry, et al v. CFR Ct Indian Chocta, et al
Assigned to: Judge Frank H. Seay
Demand: $0,000
Lead Docket: None
Dkt# in other court: None

CLOSED APPEAL

Filed: 01/09/98

Nature of Suit: 510
Jurisdiction: US Defendant

Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

DOUGLAS DRY petitioner

ROSIE BURLISON petitioner

JUANITA MCCONNELL petitioner

V.

CFR COURT OF INDIAN OFFENSES FOR THE CHOCTAW NATION respondent

JAMES WOLFE, Magistrate respondent

Docket as of March 3, 1998 10:49 am

Scott Kayla Morrison
[COR LD NTC]
P.O. Box 637
103 1/2 W. Main
Wilburton, OK 74578
(918) 465-5033

Scott Kayla Morrison
(See above)
[COR LD NTC]

Scott Kayla Morrison
(See above)
[COR LD NTC]

Robert L. Rabon
[COR LD NTC]
P.O. Box 726
Hugo, OK 74743
(405) 326-6427

Robert L. Rabon
(See above)
[COR LD NTC]

1/9/98 1 PETITION FOR WRIT OF HABEAS CORPUS by petitioner Douglas Dry, petitioner Rosie Burlison, petitioner Juanita McConnell and request for evidentiary hearing and 40 memorandum of law in support. (sb)

1/9/98 FILING FEE PAID: on 1/9/98 in the amount of $ 5.00, receipt # 129873. (sb) (Entry date 01/12/98]

1/9/98 MAGISTRATE'S CONSENT FORM furnished to plaintiff's counsel (sb) [Entry date 01/12/98]

1/9/98 2 PRAECIPE AND ISSUING SUMMONS: by petitioner (sb) [Entry date 01/12/98]

1/15/98 -- CD # 18 deposited on 1/15/98 in the amount of $ 5.00 (sg)

1/22/98 3 RETURN OF SERVICE executed upon respondent James Wolfe on 1/13/98 by process server. (sg) [Entry date 01/23/98]

1/22/98 4 RETURN OF SERVICE executed upon respondent Choctaw CFR Court of Indian Offenses on 1/13/98 by process
server. (sg)[Entry date 01/23/98]

1/29/98 5 MOTION by respondent to extend time to answer; resp to motion ddl 2/13/98 (tc)

1/30/98 6 MINUTE ORDER: ENTERING ORDER granting respondents' motion for enlargement of time to answer petitioners' complaint [5-1] until no later than February 17,1998. (Clerk) (cc: all counsel) (law)

2/2/98 7 MINUTE ORDER: Dismissing case pursuant to 28 U.S.C. Section 2241(c) as petitions have not satisfied the "in custody"requirement. (FHS) closing case (cc: all counsel) (tc)

2/26/98 8 NOTICE OF APPEAL by petitioner Douglas Dry, petitioner Rosie Burlison, petitioner Juanita McConnellfrom Dist. Court decision [7-21 (cc: all counsel) (Preliminary record mailed to loth) (sb)
2/26/98 RECEIVED re [8-11 fee ref Appeal in amount of $ 100.00 Receipt # 130090] $5.00 due on appeal fee. (sb)

2/27/98 CD # 26 deposited on 2/27/98 in the amount of $ 100.00 (sg)

2/27/98 RECEIVED re [8-11 fee ref Appeal Docket number: in amount of $ 5.00 (Receipt # 130096) (sb) [Entry date 03/02/98]

Scott Kayla Morrison, Esq.
P.O. Box 637
103 1/2 W. Main
Wilburton, OK 74578

tc

6:98-cv-00011

DOCKET ENTRY

Dry v. CFR Ct Indian Chocta

MINUTE ORDER: Dismissing case pursuant to 28 U.S.C. Section 2241(c) as petitions have not satisfied the "in custody" requirement. (FHS) closing case (cc: all counsel)

THIS NOTICE SENT TO THE FOLLOWING COUNSEL:
-------------------------------------------------

Scott Kayla Morrison, Esq.
Robert L. Rabon, Esq.

Case No. CIV-98-011-S

DOUGLAS DRY, ROSIE BURLISON,
and JUANITA McCONNELL,

Petitioners,

VS.

CFR COURT OF INDIAN OFFENSES FOR
THE CHOCTAW NATION,
JAMES WOLFE, Magistrate,

Respondents.

Notice is hereby given that Douglas Dry, Rosie Burlison and Juanita McConnell, Petitioners, hereby appeal to the United States Court of Appeals for the Tenth Circuit from an order dismissing the writ of habeas corpus enter in this action on the 2nd day of February, 1998.

I, Scott Morrison, certify that on this 25th day of February, 1998, 1 placed in U.S. mail, first class, postage pre-paid, the above and foregoing Notice of Appeal to the Robert L. Rabon, Post Office Box 726, Hugo, Oklahoma 74743.