Opinion
Case No. A4-04-50, Docket Number: 11
June 2, 2004
ORDER DISMISSING PLAINTIFF'S COMPLAINT FOR HABEAS CORPUS RELIEF
Summary : An enrolled tribal member was tried by a tribal court, found guilty of violating the tribal code, sentenced to sixty days in the tribal jail. The tribal member subsequently filed a petition for habeas corpus relief under the Indian Civil Rights Act, alleging that the tribal court failed to adequately informed him of his rights and had dismissed his charges prior to trial. The Court reviewed the record and concluded that the tribal member's allegation were devoid of merit. Consequently, the Court dismissed the tribal member's petition for habeas corpus relief.
The plaintiff, Dustin Connor (Connor), is an enrolled member of the Three Affiliated Tribes. Connor is presently incarcerated in a tribal jail facility pursuant to an order issued by Tribal Judge El Marie Conklin, Chief Judge of the Fort Berthold District Court. On April 29, 2004, Connor filed a Complaint for Habeas Corpus Relief pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303, et. seq. On May 4, 2004, the Court entered an order directing the Defendants to show cause as to why a writ of habeas corpus should not granted. On May 12, 2004, the Defendants filed a response to the Court's order. On May 25, 2004, Connor filed a reply to the Defendant's response. For the reasons set forth below, Connor's complaint is dismissed.
I. BACKGROUND
The plaintiff, Dustin Connor, was arrested on July 7, 2001, near New Town, North Dakota, and charged with the offenses of simple assault and reckless endangerment of another person in violation of Sections 220.1 and 220.2 of the Three Affiliated Tribes' Criminal Code. Connor posted bond and was released pending a trial before Tribal Judge El Marie Conklin.
A trial was held on August 29, 2002, in New Town. At the trial, BIA Officer Terry Gunville testified that he was dispatched on July 7, 2001, to investigate a report of a domestic disturbance involving Connor and Linda Mahsetky, Conner's girlfriend. Upon his arrival at the address, Officer Gunville observed bruising on Mahsetky's arms and burn marks on her left leg. Officer Gunville learned that Connor was at his mother's house. Officer Gunville took Mahsetky's statement, photographed Mahsetky's injuries, and then proceeded to Connor's mother's residence and placed Connor under arrest.
Officer Gunville then transported Connor to the New Town Police Department. Connor was informed of his Miranda rights as well as his rights under Rule Six of the Tribal Code. According to Officer Gunville, Connor signed a waiver of Miranda rights form and thereafter admitted to assaulting Mahsetky.
Linda Mahsetky also testified at the trial. Mahsetky said Connor awoke her on the morning of July 7, 2001, by choking her and repeatedly hitting her in the stomach. Mahsetky was approximately 7months pregnant at the time. She said Connor drug her from the bed, hit her with a wire clothes hanger and a belt across her legs and back, threw some of her belongings out of the house, and aimed a firearm at her stomach. Mahsetky then fled the couple's residence, went over to friend's house and called the New Town Police Department. When asked if the assault on July 7 had been an isolated incident, Mahsetky indicated that Connor had struck her on more than one occasion.
The trial transcript discloses that Connor was afforded an opportunity cross-examine Officer Gunville and Linda Mahsetky at trial but declined to do so. The trial transcript also reveals that Connor chose not to call any witnesses or present any evidence on his behalf. However, as evidenced by the following exchange, Connor did address the tribal court prior to sentencing.
JUDGE CONKLIN: Okay. Mr. Connor, do you have anything to say before the court passes sentence on you.
MR. CONNOR: Do I need a lawyer? This sounds pretty serious.
JUDGE CONKLIN: Well, you were advised of your rights on or about July of 2001. You were advised of your rights at that time. I believe, you probably had a pretrial previously advising you that if you wish to obtain legal counsel that you should have then done so. You were advised July 19, 2001.
[PROSECUTION]: The defendant appeared in Court on July 9, Your Honor. The pretrial was scheduled for July 25, 2001.
JUDGE CONKLIN: Okay, so you have had over a year to obtain counsel Mr. Connor.
MR. CONNOR: I appeared, and Pat said that it should not be going to court because my Miranda rights were not said to me until I got in the cop car.
[PROSECUTION]: My response to that, Your Honor, we have sufficient basis for proof beyond a reasonable doubt, even absent the statements. If the statements of the defendant were suppressed, we still have sufficient basis to go forward. His only remedy for not doing the Miranda rights would be to suppress any statement that he made. Clearly, the evidence of the officer and the victim prove this case beyond a reasonable doubt. We have no objection to this court suppressing any statements he made, because it does not matter to us. I still believe that the Miranda right, that he waived those. Um, there is a written waiver in the file, and any statements thereafter may be used against him. He made those statements at the law enforcement center. So, either way, it is not going to effect the outcome of the case.
JUDGE CONKLIN: Excluding your testimony, even if assuming that you are correct in saying that they questioned you- They can ask you your name. They can ask you preliminary questions. They don't have to give you your Miranda before then.
MR. CONNOR: They just said, what happened, what's going on here, and stuff like that.
JUDGE CONKLIN: . . . Well, even those are general questions. I guess, I am not clear. However, even if I exclude all the statements that you make or made, we still have Ms. Matsetsky's (sic) testimony. So I don't think, even if I suppress the statements you made, there is sufficient evidence here. So, nonetheless, anyway. Yes, maybe you should have got yourself some legal counsel; however, since the maximum penalty here is only 6 months. We aren't required to provide counsel for you, it is your own responsibility. You were advised that over a year ago, Mr. Connor. . . .See Trial Transcript, pp. 23-24 (Docket No. 8).
The tribal court found Connor guilty on all charges. The tribal court sentenced Connor to 30 days in jail on the charge of simple assault. With respect to the offense of recklessly endangering another person, the tribal court sentenced Connor to 120 days in jail, with 60 days suspended and a probationary period of 24 months. The tribal court informed Connor the sentences would run concurrent and he was to report to the jail on September 3, 2002. The court further informed Connor he would be allowed work release while incarcerated.
U.S. law prohibits tribal courts from imposing a term of imprisonment in excess of one year and a fine greater than $5,000 or both 25 U.S.C. § 1302(7).
The record reveals that Connor complied with the tribal court's instructions and voluntarily reported to the jail facility on September 3, 2002. Connor was released from jail the following morning for work but never returned. On September 9, 2002, Tribal Judge Conklin signed a criminal complaint and a warrant for Connor's arrest. On April 8, 2004, Connor was arrested and ordered to serve the balance of his sentence.
On April 26, 2004, Connor filed a Notice of Appeal and Motion for Stay and Emergency Relief. On April 28, 2004, the Northern Plains Intertribal Court of Appeals denied Connor's request for a stay pending appeal.
On April 29, 2004, Connor filed a Complaint for Habeas Corpus Relief in federal court. Connor alleges in his complaint the following violations of the Indian Civil Rights Act:
a) in 2001 charges were dismissed; in 2002 plaintiff Connor was arrested and tried in 2002-through (sic) the charges were dismissed in 2001.
b) the failure of the tribal court to keep records violates plaintiff Connor's right to due process and equal protection, and right to fair tribunal.
c) In August 2002 defendant was not advised to his right to a jury trial, or of his right to counsel, or right to disqualify Judge Conklin. The respondent forced Mr. Connor to trial without an attorney or time to prepare for trial, or to call witnesses.
On May 4, 2004, the Court entered an order directing the Defendants to show cause as to why Connor should not be granted a writ of habeas corpus. On May 12, 2004, the Defendants filed a response to the Court's order and on May 25, 2004, Connor filed a reply to the Defendant's response.
III. LEGAL DISCUSSION A. RIGHT TO COUNSEL IN TRIBAL COURT
It is well-established that the Bill of Rights and the Fourteenth Amendment do not apply directly to tribes. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). "As separate sovereigns, pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority." Id. Indian tribes, although limited sovereigns, have retained the right to try and punish individuals who transgress their laws. See United States v. Wheeler, 435 U.S. 313, 323 (1978). The Three Affiliated Tribes has developed an adversarial criminal justice system. However, the right to an attorney to represent indigent defendants in tribal court is not a right guaranteed by the Constitution and Bylaws of the Three Affiliated Tribes. The right to an attorney in tribal court is guaranteed by the Indian Civil Rights Act (ICRA), but only at the expense of the defendant. 25 U.S.C. § 1302(6)(2001); United States v. Bird, 287 F.3d 709, 713 (8th Cir. 2002). There are only a few tribes that provide a licensed attorney to represent indigent defendants in tribal court. As a result, the fact that Connor was not provided with court-appointed counsel by the tribe would not provide Connor with a basis for habeas corpus relief under the Indian Civil Rights Act.
B. TRIBAL COURT RECORDS 1) ADVISEMENT OF RIGHTS
On July 7, 2001, Conner signed a Miranda waiver form. See Docket No. 9, pp. 28. That waiver discloses that Connor was informed of his right to consult a lawyer before questioning and that Connor expressly waived any such right. On July 9, 2001, Connor was arraigned on the tribal charges of assault and recklessly endangering another person as evidenced by the court order signed by Tribal Magistrate Judge Mildred J. Berryhill. See Docket No. 9, pp. 21. The Defendants have not provided the Court with a transcript of Connor's arraignment. However, the Defendants have provided the Court with various records confirming the fact that Connor was arraigned. In addition, the Defendants have submitted an affidavit signed by Tribal Magistrate Judge Berryhill wherein she attested to her customary procedure during an arraignment and her practice to advise defendants of their rights, ask defendants if they understand their rights or if they have any questions, and advise defendants of their right to a jury trial. See Docket No. 8, p. A. The Defendants have submitted a form signed by Connor dated July 9, 2001, wherein Connor stated that he entered a plea of not guilty. See Docket No. 9, pp. 29.
The Court finds the affidavits and tribal court orders signed by Tribal Magistrate Judge Berryhill, and the document and Miranda waiver signed by Connor, are sufficient to establish that Connor was informed of his right to a jury trial and of his right to counsel under the Indian Civil Rights Act. The fact that Connor received notice of the trial and was, in fact, afforded a trial negates any claim by Connor that he was never informed of such rights. The trial transcript also supports a finding that Connor was informed of his rights.
Notice of the trial was mailed to Connor on August 16, 2002. In addition to informing Connor of the trial date, the notice stated that Conner was "responsible for obtaining your own lawyer for representation and contacting any witnesses needed for your case." See Docket No. 9, pp. 18.
2) ARRAIGNMENT
There is a record of Connor's arraignment on July 9, 2001. First, Connor's bond appears to confirm the date of the arraignment. It contains a signed promise by Connor that he would appear in Court on July 9, 2001. See Docket No. 9, pp. 33. Second, the docket sheets provided by the Defendants also disclose that an arraignment was held on July 9, 2001.See Docket No. 9, pp. 1-2. Third, the order signed by Tribal Magistrate Judge Berryhill confirms that Connor was arraigned. See Docket No. 9, pp. 21. Finally, Connor acknowledged prior to his sentencing that he had been arraigned before Tribal Magistrate Judge Berryhill. See Trial Transcript, pp. 23-24 (Docket No. 8). Connor's claim that there is no record of this arraignment is devoid of merit.
3) PURPORTED DISMISSAL OF TRIBAL CHARGES
Finally, Connor's assertion regarding the purported dismissal of all tribal court charges is devoid of merit. The record does not support the argument that Connor's charges were dismissed prior to trial. Aside from bald assertions, Connor has presented no evidence to substantiate his assertion that the tribal court charges were dismissed prior to trial. Prior to sentencing, Connor was allegedly told by a "Pat" that the case should not be "going to court." See Trial Transcript, pp. 24 (Docket No. 8). Connor has never elaborated on "Pat's" identity but, in any event, such a statement would not constitute a dismissal of Connor's charges.
The Defendants have submitted affidavits from William E. Woods, Jr., the acting Special Prosecutor for the Three Affiliated Tribes in Connor's case, Tribal Magistrate Judge Berryhill, and Patti Lynne Shelkey, clerk of court of the Three Affiliated Tribes. See Docket Nos. 8 and 9. Woods attests that Connor never presented any motions for dismissal. See Docket No. 8. Magistrate Judge Berryhill confirms that Conner never presented any motions or requests for dismissal. See Docket No. 8, pp. A-B. Shelkey attests that she has reviewed Connor's file and certifies there is no record of any motions for dismissal, stipulations for dismissal, or orders for dismissal with respect to Connor's charges. See Docket No. 9, pp. 1-2.
IV. CONCLUSION
The Court finds there is no legal basis to grant Connor's petition for habeas corpus relief. Therefore, the Court DISMISSES Connor's Complaint for Habeas Corpus Relief (Docket No. 1).