Wahpekeche v. Pettigrew

── Wahpekeche v. Pettigrew ── Case No.: 23-6176 Court: Court of Appeals for the Tenth Circuit Date: March 11, 2026 Category: General Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 11, 2026 FOR THE TENTH CIRCUIT Christopher M. Wolpert ______________________________________________ Clerk of Court THOMAS ROYE WAHPEKECHE, Petitioner - Appellant, v. No. 23-6176 LUKE PETTIGREW, Warden, Respondent - Appellee. _____________________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:21-CV-01106-PRW) _____________________________________________ Submitted on the briefs *: Jason B. Wesoky, Ogborn Mihm, LLP, Denver, Colorado, for Petitioner- Appellant. Gentner F. Drummond, Attorney General of Oklahoma and Tessa L. Henry, Assistant Attorney General, for Respondent-Appellee. ________________________________________________ Before HARTZ, BACHARACH, and CARSON, Circuit Judges . ____________________________________________ BACHARACH, Circuit Judge. _________________________________________________ * Oral argument would not materially help us decide this appeal, so we have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).  Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 2 This case involves challenges to convictions for state crimes. 1 The petitioner, Mr. Thomas Roye Wahpekeche, claims that the state court lacked jurisdiction because he’s an Indian and the crimes took place in Indian country. 2 Land can constitute Indian country through status as an Indian reservation, a dependent Indian community, or an Indian allotment. See 18 U.S.C. § 1151(a)–(c). Considering these types of Indian country, we conclude that • Congress disestablished the pertinent reservation and • Mr. Wahpekeche waived his characterization of the land as a dependent Indian community or an Indian allotment. 1 Mr. Wahpekeche was convicted of • first-degree rape of a victim younger than fourteen (Okla. Stat. tit. 21, § 1114), • forcible sodomy (Okla. Stat. tit. 21, § 888), • lewd or indecent acts to a child younger than sixteen (Okla. Stat. tit. 21, § 1123(A)(2)), • rape by instrumentation (Okla. Stat. tit. 21, § 1114(A)(7)), and • commission of a lewd act in front of a minor (Okla. Stat. tit. 21, § 1123(A)(5)). 2 Mr. Wahpekeche alleges membership in the Kickapoo Tribe and the presence of at least some “Indian blood.” The State takes no position on Mr. Wahpekeche’s status as an Indian. 2  Appellate Case: 23-6176 Document: 102-1 Date Filed: 03/11/2026 Page: 3 1. We decline to vacate the certificate of appealability. Mr. Wahpekeche challenges not only the existence of state-court jurisdiction but also the rulings on his claims of ineffective assistance of counsel, denial of due process, and violation of a federal statute. See pp. 15–16, below. He could appeal the rulings only if a judge were to issue a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). So he requested a certificate and obtained one “on all issues.” Order (10th Cir. Nov. 20, 2024). The State asks us to vaca