Were trial counsel ineffective for failing to consult with Mr. Spain about taking a direct appeal from his conviction, where doing so would not have been frivolous, and where the Sixth Amendment claim does not depend on the claimant's fault?

QUESTION PRESENTED In the fall of 2017, the Tenth Circuit Court of Appeals ruled that the Muscogee (Creek) Nation in Oklahoma had never been disestablished, and thus under 18 U.S.C. § 1153 only the federal courts have jurisdiction to try an Indian who commits murder on the Creek Nation. See Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017). While Oklahoma’s appeal of that ruling was pending before this Court, Mr. Spain was charged with firstdegree murder, in violation of Oklahoma law. Mr. Spain is an enrolled member of the Creek Nation, and the crime took place within the boundaries of the Creek Nation. He was prosecuted in an Oklahoma state court, where he pleaded guilty and was sentenced to life in prison with the possibility of parole. A little more than two weeks after sentencing, this Court held, in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), that the Creek Nation had never been disestablished and state jurisdiction was improper. Mr. Spain’s counsel never discussed with him challenging the state court’s jurisdiction with him, even after McGirt was decided. Mr. Spain sent a note to the trial court, in which he directly asked to consult with them about the effect of McGirt on his case. The Oklahoma state courts instead read his note to renounce any claim to treatment as an Indian, and thus found him at fault for not timely appealing. This case presents the following question: Were trial counsel ineffective, in violation of Roe v. Flores-Ortega, 528 U.S. 470 (2000), for failing to consult with Mr. Spain about taking a direct appeal from his conviction, where doing so would not have been frivolous, and where the Sixth Amendment claim does not depend on the claimant’s fault?