Unpublished Michigan Ineffective Assistance of Counsel ICWA Case


Respondent-father appeals as of right from the trial court’s order terminating his parental rights to his child pursuant to MCL 712A.19b(3)(c)(ii) (other conditions exist that cause the
child to come within the court’s jurisdiction), (3)(g) (failure to provideproper care or custody), and (3)(j) (reasonable likelihood of harm). For the reasons set forth in this opinion, we affirm in part but remand this matter to the trial court to consider whether to conduct a Ginther hearing or to resolve the issues set forth herein by making a determination as to whether trial counsel was ineffective such that there exists a reasonable
probability that, but for counsel’s unprofessional errors, the result would have been different.

Federal Court Denies Duane Big Eagle’s Section 2255 Motion

Here are the materials in Big Eagle v. United States (D. S.D.):

2 Motion to Vacate Conviction

17 US Response

24 DCT Order

An excerpt:

Big Eagle now has filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 in this case. CIV Doc. 1. Big Eagle in his motion raised five grounds, all of which contended that his trial counsel provided ineffective assistance to him. CIV Doc. 1 at 5-6. Big Eagle filed a Memorandum of Law supporting the § 2255 motion. CIV Doc. 2. This Court screened the case and ordered the Government to file a response. CIV Doc. 7. The Government resisted the motion, CIV Doc. 17, and filed an affidavit signed by Big Eagle’s trial counsel disputing Big Eagle’s contentions. CIV Doc. 17-2. Big Eagle filed a reply thereafter. CIV Doc. 20. For the reasons explained herein, this Court denies Big Eagle’s § 2255 motion.

Earlier, related materials here.

Idaho Court of Appeals Decides PL 280 Case

Here is the opinion in Lawyer v. State.

An excerpt:

In his application, Lawyer alleged that his counsel was ineffective for failing to file a motion to change venue. Specifically, he asserted the crime he was convicted of occurred on the Nez Perce Indian Reservation, that he is a member of the Nez Perce Tribe, and the State lacked jurisdiction to prosecute him. On appeal, he appears to renew this argument, stating that his trial and appellate counsel were “not aware and sensitive to Tribal Court Jurisdiction.” Pursuant to I.C. § 67-5101, the State of Idaho has jurisdiction for the criminal enforcement of state laws concerning various matters arising in Indian country, including “[o]peration and management of motor vehicles upon highways and roads maintained by the county or state.” Idaho courts have previously held that “the State of Idaho has authority to enforce the motor vehicle laws of this state in Indian Country pursuant to the consent provided in Public Law 280 and as implemented by the Idaho Legislature in I.C. § 67-5101.” State v. Beasley, 146 Idaho 594, 597, 199 P.3d 771, 774 (Ct. App. 2008). It is undisputed that Lawyer was stopped and arrested while driving on State Highway 12 on the Nez Perce Indian Reservation. Therefore, Lawyer was driving on a state highway, over which the State of Idaho has expressly assumed jurisdiction.


Federal Court Interpretation of 25 U.S.C. 1914 and Ineffective Assistance of Counsel

An effort to  persuade a federal court to review a state court action in an Indian Child Welfare Act case partially succeeds in Kirk v. Baldovinos (N.D. Cal.):

Kirk DCT Order

Alameda County Motion to Dismiss

Kirk Opposition

Alameda County Reply

California Response to Order to Show Cause

The only federal claim remaining is the ineffective assistance of ICW counsel:

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