Opinion
No. CV 10-1127 MCA/GBW.
February 16, 2011
PROPOSED FINDINGS AND RECOMMENDATION ON DISPOSITION
THIS MATTER is before the Court on Petitioner Valenzuela's application for habeas relief ( Doc. 1), Respondents' Answers ( Docs. 6 16), and Respondents' Motion to Dismiss ( Doc. 15). Petitioner failed to file a response to Respondents' Motion to Dismiss and the time for doing so has expired. For the reasons described below, I recommend granting Respondents' Motion to Dismiss and dismissing Petitioner's habeas application without prejudice for failure to exhaust his tribal remedies.
BACKGROUND
Petitioner filed his habeas application on November 23, 2010. Doc. 1. In his Petition, Mr. Valenzula alleged that he was an enrolled member of the Tohono O'odham Nation, and that he was being illegally detained at the McKinley County Adult Detention Center in Gallup, New Mexico. Id. at 2-3. Petitioner was arrested in July of 2007, on the Tohono O'odham reservation, and was charged with eight different counts in violation of the Criminal Code of the Tohono O'odham Nation. Id. at Ex. A. On June 24, 2008, he entered into a plea agreement and pled guilty to one count of conspiracy, two counts of aggravated assault, and one count of misuse of a weapon. Id. at Ex. B. Mr. Valenzula was sentenced to a total term of 1,260 days in jail by the Tohono O'odham Judiciary Court on June 25, 2008. Id. at 2, Ex. C. In his plea agreement, Mr. Valenzula waived his right to appeal the judgment or sentence in the Tohono O'odham Judiciary Court, and none was filed. Doc. 1 at 2. Petitioner then filed this federal habeas application on November 23, 2010.
Petitioner's habeas application named Steve Silversmith, the Deputy Warden at McKinley County Detention Center, along with Tohono O'odham Nation and Patricia Broken Leg-Brill, the Indian Corrections Specialist for the Bureau of Indian Affairs, as Respondents. On December 1, 2010, the Court issued an Order substituting Respondent Silversmith as the sole named Respondent and ordered him to answer. Doc. 4. On December 16, 2010, Tohono O'odham Nation and Respondent Silversmith filed a Joint Motion for Reconsideration regarding the Court's decision to substitute Respondent Silversmith as the sole named Respondent. Doc. 9. Tohono O'odham Nation argued that they were a proper Respondent in this matter since they had actual control over Petitioner. Id. On January 4, 2011, the Court granted the Motion to Reconsider with regard to Tohono O'odham Nation and Respondent Silversmith's request to keep Tohono O'odham Nation as a Respondent in this case. Doc. 12. Thus, on January 5, 2011, Frank Hecht, the Corrections Administrator of Tohono O'odham Nation, was entered as a Respondent. Doc. 13.
On January 5, 2011, Respondents filed an Answer, ( Doc. 16), along with a Motion to Dismiss, ( Doc. 15), alleging that Petitioner had failed to exhaust his tribal remedies as required by the doctrine of comity. Petitioner never filed a response and on January 27, 2011, Respondents filed a notice of briefing complete regarding their Motion to Dismiss. Doc. 17.
STANDARD OF REVIEW
The Indian Civil Rights Act authorizes habeas corpus actions by any person detained to test "the legality of his detention by order of an Indian tribe." 25 U.S.C. § 1303. However, prior to bringing such a suit, a petitioner is required to exhaust his or her remedies in tribal court. The tribal exhaustion rule is a judicially created rule, and an outgrowth of the federal government's longstanding policy of encouraging tribal self-government. National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985); see also Iowa Mut. Insur. Co. v. LaPlante, 480 U.S. 9, 14 (1987); Texaco, Inc. v. Zah, 5 F.3d 1374, 1378 (10th Cir. 1993) (noting that "[w]hen the activity at issue arises on the reservation, [federal] polic[y] almost always dictate[s] that the parties exhaust their tribal remedies before resorting to a federal forum"). "Tribal courts play a vital role in tribal self-government, and respect for that role requires, as a matter of comity, that examination of issues of tribal sovereignty and jurisdiction be conducted in the first instance by the tribal court itself." Reservation Tel. Co-op. v. Affiliated Tribes, 76 F.3d 181, 184 (8th Cir. 1996).The Supreme Court has recognized exceptions to the requirement of exhaustion of tribal remedies, namely, where the assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith; where the tribe's exercise of authority is patently violative of express jurisdictional prohibitions; or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the tribal court's jurisdiction. National Farmers, 471 U.S. at 855 n. 21; see also Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). Allegations of local bias and tribal court incompetence, however, are not exceptions to the exhaustion requirement. Iowa Mut., 480 U.S. at 19.
ANALYSIS
Respondents assert that Petitioner has failed to exhaust his tribal remedies, and thus his federal habeas application should be dismissed without prejudice. Doc. 15. Specifically, they contend that Petitioner did not first apply for a writ of habeas corpus or seek to commute his sentence with the Tohono O'odham Court of Appeals. Id. at 1. The Tohono O'odham Code explicitly provides for the remedy of habeas corpus and the Tohono O'odham Constitution vests the judicial branch with the power to issue writs of habeas corpus. 6 T.O.C. ch. 3, art. 2, r. 24; T.O. Const. art. VIII, § 10(c). In his habeas application, Petitioner asserts that he exhausted all appropriate tribal remedies because he waived his right to appeal the judgment and sentence in his plea agreement. Doc. 1 at 2. However, Petitioner never responded to Respondents' assertion that he failed to first seek habeas relief in the tribal courts before filing his federal petition, as required by Supreme Court and Tenth Circuit precedent, as well as the doctrine of comity. National Farmers, 471 U.S. at 856; Texaco, 5 F.3d at 1378. Thus, it is uncontroverted that he has failed to seek habeas relief from the tribal court.
The Tohono O'odham Code and Constitution are found atwww.tolc-nsn.org, and a copy of the relevant portions are attached to this Report and Recommendation as Attachment 1 (T.O. Code) and Attachment 2 (T.O. Constitution).
Petitioner has not asserted the existence of any of the recognized exceptions to the exhaustion requirement. See supra at 4 ( citing National Farmers, 471 U.S. at 855 n. 21). Therefore, there is no basis to excuse his failure to present his claim to the tribal court.
Wherefore,
IT IS HEREBY RECOMMENDED THAT Respondent's Motion to Dismiss ( Doc. 15) be GRANTED and Petitioner's application for habeas relief be DISMISSED without prejudice. In light of this recommendation, it is further recommended that Petitioner's Motion for Expedited Review of Petition ( Doc. 11) be denied as MOOT. THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1)(c). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.
TOHONO O'ODHAM COURT RULES OF APPELLATE PROCEDURES
(2) Whether the defendant poses a threat to the community or an individual; and
(3) Whether a bond shall continue or be imposed if an appeal is taken prior to sentencing
(c) The appellate panel, on motion of petitioner, may move the lower court for release of the petitioner if the panel determines it would be justified under the facts of the case.
Rule 22. Reconsideration of decision to dismiss appeal; procedure; finality
Within 15 days of service of the order dismissing an appeal, except when the request to dismiss is at the request of appellant, a party may file with the appellate court a written request to reconsider its decision to dismiss the appeal. The decision of the appellate panel on reconsideration is final.
Rule 23. Writs of mandamus and prohibition; contents of petition; procedure; time limits; denial without action
(a) A party may file with the trial court a petition for a writ of mandamus or prohibition directed at the presiding judge(s) of the lower court which shall be forwarded to the court of appeals within 24 hours after filing. The petition shall include:
(1) the names or titles, addresses, and telephone numbers of the persons against whom relief is sought unless the lower court determines that including the address or telephone number of any person would place that person in physical jeopardy;
(2) a statement of the facts necessary to understand the issues presented;
(3) a statement of the issues and the relief sought;
(4) A statement of the reasons why the writ should issue; and, a copy of any order, opinion, final judgment, or parts of the record essential to understanding the petition.
(b) The trial court clerk shall serve the person against whom the writ is sought within 72 hours after filing.
(c) Within seven days after the petition is filed, the appellate chief judge or a designate shall determine whether the petition shall be granted. If the petition is granted, the appellee shall be ordered to answer the petition and appear for hearing. The appellate clerk shall advise the appellee of the dates on which briefs are to be filed and, where determined appropriate by the appellate panel, to appear to show cause why the writ should not issue.
(d) The denial of a petition for a writ is not a final decision on the merits of a case.
(e) If the petition is not acted upon within thirty days after it is filed, it shall be considered denied.
Rule 24. Writ of habeas corpus; contents of petition; procedure; time limits; denial without action
(a) A party may file with the lower court a petition for a writ of habeas corpus which shall be forwarded to the court of appeals within 24 hours after filing for the purpose of determining if the current incarceration or commitment or future custody of the petitioner is in violation of law, provided that the petitioner has exhausted trial procedures, The petition shall state:
(1) the name and location of the petitioner;
(2) The name, title, position and address of the person having or who will have custody of the petitioner;
(3) Whether the petitioner is in custody pursuant to a judgment of the trial court, as well as the name of the deciding judge and court;
(4) the date of the judgment or conviction and the length of confinement;
(5) the nature of the case or offenses involved and the plea entered;
(6) All grounds on which the petitioner asserts he/she is being held unlawfully and a summary of the facts supporting each ground; and,
(7) The relief the petitioner is seeking.
(b) The petition shall be presented to and reviewed by the appellate chief judge or a designate. If a petition does not substantially comply with the requirements of this rule, it shall be returned to the petitioner with a statement of the reasons for its return.
(c) If the petition and exhibits are in order, the appellate chief judge or a designate shall order a copy of the petition and order be served by certified mail on the appellee and the appellee's representative.
(d) The appellee's answer shall be filed within the time provided by the appellate court's order, and shall respond to each allegation in the petition.
(e) The appellate chief judge or a designate shall review the petition, answer, transcript, and record, and determine whether adequate relief can be ordered or whether an evidentiary hearing is required. If an evidentiary hearing is required, it shall be held within 30 days of filing of the writ and a decision issued unless the appellate chief judge or a designate determines otherwise. If an evidentiary hearing is not required, the judge shall dispose of the petition, as justice requires.
(f) If the petition is not acted upon within thirty days after it is filed, it shall be considered denied.
Rule 25. Motions; where filed; contents; proof certification of service; responses; emergencies
(a) A party may file a motion not otherwise specified in these rules with the clerk of the lower court All motions shall include:
(1) a statement of the relief sought; a statement of the grounds for the relief sought; and,
(2) arguments and affidavits or other documents in support of the motion.
(b) The party requesting relief shall file with the lower court clerk certification of service of the motion on all parties to the appeal and the clerk shall forward copies as required by Rule 10.
(c) Within 15 days after being served, any party may file with the clerk of the lower court a response to the motion and also shall file certification of service of the response on all parties to the appeal and the clerk shall forward copies a required by Rule 10.
(d) The chief judge of the appellate panel may determine that a motion requires emergency action and issue a temporary order setting forth specific findings until the response is received and the panel can make a final determination.
Section 3. The vice chairman shall assist the chairman when requested to do so, and in the absence of the chairman, shall have the powers and be subject to the responsibilities of the chairman.
Section 4. The chairman and vice chairman shall receive for their services a compensation to be established by the Tohono O'odham Council, which shall not be diminished during their continuance in office.
Section 5. Every law, ordinance, resolution or separate appropriation item passed by the Tohono O'odham Council shall be presented to the chairman for his approval before it becomes effective. If he approves, he shall sign it. But if he disapproves, he shall return it to the Tohono O'odham Council within forty-eight (48) hours, with his objections. If after consideration, it again passes the council by a majority of two-thirds (2/3) of the votes cast, it shall become law and he shall sign it notwithstanding his objections.
ARTICLE VIII — JUDICIAL BRANCH
Section 1. The judicial power of the Tohono O'odham Nation shall be vested in the Tohono O'odham Judiciary, which shall consist of the Tohono O'odham Courts and such inferior courts as the Tohono O'odham Council may from time to time ordain and establish.
Section 2. The judical power of the Tohono O'odham Judiciary shall extend to all cases and matters in law and equity arising under this constitution, the laws and ordinances of or applicable to the Tohono O'odham Nation, and the customs of the Tohono O'odham Nation.
Section 3. The Tohono O'odham Courts shall be courts of record and shall consist of at least six (6) judges appointed by the Tohono O'odham Council. The courts shall be open for the transaction of business, except on non-judicial days. In the determination of causes, all decisions of the courts shall be in writing, and the grounds of the decision shall be stated.
Section 4. Within sixty (60) days after the effective date of this constitution, the Tohono O'odham Council shall appoint at least six (6) judges of the Tonono O'odham Courts, as follows: Two (2) judges for terms of two (2) years, two (2) for terms of four (4) years, and two (2) for terms of six (6) years. Thereafter their terms shall be six (6) years and staggered so that approximately one-third (1/3) of the judges shall be appointed every other year.
Section 5. The judges of the Tohono O'odham Courts shall select a chief judge from among their number, who shall be the chief administrative officer of the Tohono O'odham Judiciary and shall serve in that capacity for a term of two (2) years.
Section 6. The chief judge shall each year designate one or more of the judges of the Tohono O'odham Courts as judge(s) of the children's court, who shall preside over the children's court, a division of the Tohono O'odham Courts.
Section 7. The appellate power of the Tohono O'odham Nation shall be vested in the court of appeals, which shall have jurisdiction to hear all appeals from the Tohono O'odham Courts. Decisions of the court of appeals on all matters within its appellate jurisdiction shall be final.
Section 8. The court of appeals shall consist of three (3) judges of the Tohono O'odham Courts designated by the chief judge, none of whom shall have presided at the trial of the case appealed.
Section 9. The judges of the Tohono O'odham Courts shall receive for their services a compensation to be established by the Tohono O'odham Council, which shall not be diminished during their continuance in office.
Section 10. The Tohono O'odham Judiciary shall have the power to:
(a) Interpret, construe and apply the laws of, or applicable to, the Tohono O'odham Nation.
(b) Declare the laws of the Tohono O'odham Nation void if such laws are not in agreement with this constitution.
(c) Issue injunctions, attachments, writs of mandamus, quo warranto, review, certiorari and prohibition, and writs of habeas corpus to any part of the Tohono O'odham Nation upon petition by, or on behalf of, any person held in actual custody.
(d) Establish court procedures for the Tohono O'odham Judiciary.
ARTICLE IX — DISTRICT COUNCIL ORGANIZATION
Section 1. The Tohono O'odham Nation consists of eleven (11) districts: BABCQUIVARI, CHUKUT KUK, GU ACHI, GU VO, HICKIWAN, PISINEMO, SCHUK TOAK, SAN XAVIER, SAN LUCY (Gila Bend), SELLS and SIF OIDAK.Section 2. The Tohono O'odham Council may by ordinance change the foregoing number and boundaries of districts.
Section 3. Each district shall have a governing body known as the district council, which shall consist of at least five (5) representatives, or their alternates, elected either from the district at large, or from communities consisting of villages or groups of villages within the district and recognized or established as separate voting constituencies pursuant to an ordinance of the Tohono O'odham Council, and of a chairman and vice chairman elected from the district at large.