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Case No. 11-2212
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
ALVIN C. VALENZUELA, Petitioner – Appellant
vs.
STEVE SILVERSMITH Warden, McKinley County Adult Detention Center,
FRANK HECHT, Corrections Administrator, Tohono O’odham Nation Respondents – Appellees.
On appeal from the United States District Court for the District of New Mexico
The Honorable Judge M. Christina Armijo Case No. CV 10-1127 MCA-GBW
RESPONSE BRIEF OF RESPONDENT-APPELLEE HECHT
Laura Berglan Assistant Attorney General
Tohono O’odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 (520) 383-3410 laura.berglan@tonation- nsn.gov
Doreen N. McPaul Assistant Attorney General Tohono O’odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 (520) 383-3410 [email protected]
Oral argument not requested.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF RELATED CASES ..................................................................... 1
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 2
PROCEDURAL BACKGROUND ............................................................................ 3
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT ............................................................................................................. 4
I. THE DISTRICT COURT PROPERLY RULED THAT VALENZUELA
FAILED TO EXHAUST TRIBAL REMEDIES ............................................. 4
A. Standard Of Review And Approach To Exhaustion ..................................... 4
B. Habeas Petitioners Must Exhaust Tribal Remedies ...................................... 5
C. Tribal Remedies Were Available To Petitioner-Appellant ........................... 8
D. Petitioner-Appellant Does Not Qualify For An Exception To Exhaustion 10
II. THE DISTRICT COURT CORRECTLY RULED THAT VALENZUELA’S
PETITION IS MOOT .....................................................................................11
A. No Article III Live Case Or Controversy Exists .........................................12
B. Petitioner-Appellant Suffers No Collateral Consequences .........................13
C. Vacatur Of The Sentence Is The Only Remedy That Would Be Available
To Petitioner-Appellant ...............................................................................17
CONCLUSION ........................................................................................................22
STATEMENT REGARDING ORAL ARGUMENT .............................................22
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TABLE OF AUTHORITIES
CASES
Bank of Okla. v. Muscogee (Creek) Nation,
972 F.2d 1166 (10th Cir. 1992) .............................................................................. 6
Bishop v. Colorado,
12 Fed. Appx. 807 (10th Cir. 2001) ......................................................................10
Bradshaw v. Story,
86 F.3d 164 (10th Cir. 1996) .................................................................................. 4
Burrell v. Armijo,
456 F.3d 1159 (10th Cir. 2006) .............................................................................. 6
Carafas v. LaValle,
391 U.S. 234 (1968) ....................................................................................... 12, 13
Chapoose v. Hodel,
831 F.2d 931 (10th Cir. 1987) ..............................................................................18
Crowe v. Dunlevy, P.C. v. Stidham,
640 F.3d 1140 (10th Cir. 2011) .............................................................................. 6
Evans v. McKay,
869 F.2d 1341 (9th Cir. 1989) ..............................................................................21
Fratis v. Ortiz,
190 F. App’x 686 (10th Cir. 2006) .......................................................................13
Iowa Mutual Ins. Co. v. LaPlante,
480 U.S. 9 (1987) ........................................................................................... 4, 5, 7
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Jeffredo v. Macarro,
599 F.3d 913 (9th Cir. 2010) .................................................................................. 7
Lane v. Williams,
455 U.S. 624 (1982) ....................................................................................... 14, 17
Lewis v. Continental Bank Corp.,
494 U.S. 472 (1990) ..............................................................................................12
McKinney v. State of Okla., Dept. of Human Servs.,
925 F.2d 363 (10th Cir. 1991) ..............................................................................21
Miranda v. Anchondo,
__ F.3d __, 2012 WL 360767 (9th Cir. February 6, 2012) ..................................20
Natn’l Farmers Union Ins. Co. v. Crow Tribe,
471 U.S. 845 (1985) ................................................................................. 4, 5, 7, 10
Nevada v. Hicks,
533 U.S. 353 (2001) ..............................................................................................18
New Mexico Env’t Dept. v. Foulston,
4 F.3d 887 (10th Cir. 1993) ..................................................................................12
Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978); ...............................................................................................18
Shayesteh v. City of South Salt Lake,
217 F.3d 1281 (10th Cir. 2000) ............................................................................19
Sibron v. New York,
392 U.S. 40 (1968) ................................................................................................14
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Smith v. Moffett,
947 F. 2d 442 (10th Cir. 1991) ....................................................................... 5, 6, 7
Spencer v. Kemna,
523 U.S. 1 (1998) ..................................................................................... 14, 16, 17
Talton v. Mayes,
163 U.S. 376 (1896) ..............................................................................................18
Texaco, Inc. v. Zah,
5 F.3d 1374 (10th Cir. 1993) .................................................................................. 6
U.S. v. Meyers,
200 F.3d 715 (10th Cir. 2000) ..............................................................................14
United States v. Cockerham,
237 F.3d 1179 (10th Cir. 2001) .............................................................................. 9
White v. Pueblo of San Juan,
728 F.2d 1307 (10th Cir. 1984) ............................................................................11
Wilcox v. Aleman,
43 F. App’x 210 (10th Cir. 2002) .................................................................. 13, 14
STATUTES
Indian Civil Rights Act
25 U.S.C. § 1301 ...................................................................................................19
25 U.S.C. § 1302(6) ....................................................................................... 19, 20
25 U.S.C. § 1302(7) ..............................................................................................19
25 U.S.C. § 1302(e) ..............................................................................................20
25 U.S.C. § 1303 ............................................................................................ 1, 5, 7
28 U.S.C. § 2254 ........................................................................................................ 7
42 U.S.C. § 1983 ......................................................................................................21
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Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2281 ....... 16, 20
RULES
Ariz. R. Evid. 609 ....................................................................................................16
Fed. R. Civ. P. 58 ....................................................................................................... 1
Fed. R. Evid. 609(a) .................................................................................................16
N.M.R. Evid. 11-609 ................................................................................................16
CONSTITUTIONAL PROVISIONS
U.S. CONST. art. III, § 2, cl. 1 ...................................................................................12
TOHONO O'ODHAM NATION AUTHORITY
6 TOHONO O’ODHAM CODE, Chapter 3, Art. 2, Rule 24 ............................................ 8
CONSTITUTION OF THE TOHONO O’ODHAM NATION, Art. VIII, Sec. 10(c) ................. 8
OTHER AUTHORITIES
Cohen, Handbook of Federal Indian Law (2005)..................................................7, 8
Michael Pinard, Offender Reentry and the Collateral Consequences of Criminal
Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change 585, 586 (2006)
........................................................................................................................ 13, 15
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STATEMENT OF RELATED CASES
There are no prior related appeals in this case.
JURISDICTIONAL STATEMENT
The district court had subject-matter jurisdiction under 25 U.S.C. § 1303
(2006). On September 30, 2011, pursuant to Federal Rule of Civil Procedure 58,
the district court certified the decision under review as a final judgment.
Appellant’s Appendix (“Aplt. App.”) at 237. Petitioner-Appellant timely filed his
notice of appeal on October 28, 2011. Aplt. App. at 238. This Court has
jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether Petitioner-Appellant must exhaust his tribal remedies before
filing a petition for a writ of habeas corpus with the federal district court?
2. Whether Petitioner-Appellant’s Petition has become moot as a result
of his release?
STATEMENT OF THE CASE
This case presents a relatively simple application of well-settled case law to
a petition for a writ of habeas corpus filed pursuant to the Indian Civil Rights Act
(“ICRA”). 25 U.S.C. § 1303 (2006). On November 23, 2010, Petitioner-Appellant
filed a petition for a writ of habeas corpus (“Petition”). Petitioner-Appellant’s
underlying conviction was in the Tohono O'odham Judicial Court. The Tohono
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O’odham Nation (“Nation”) is a federally recognized Indian tribe located in
southern Arizona. Petitioner-Appellant failed to exhaust his tribal remedies prior
to filing with the federal district court. While this action was pending in the
district court, Petitioner-Appellant served the entirety of his sentence and was
unconditionally released. As a result, his Petition is moot. The district court
dismissed Petitioner-Appellant’s Petition on the independent grounds of failure to
exhaust tribal remedies and alternatively, mootness.
STATEMENT OF FACTS
Petitioner-Appellant was arrested on July 27, 2007, within the boundaries of
the Nation. Aplt. App. at 14. Petitioner-Appellant was charged with eight separate
violations of the Nation’s Criminal Code in connection with the deaths of two
individuals. Aplt. App. at 20. On June 24, 2008, Petitioner-Appellant entered into
a plea agreement, wherein he pleaded guilty to one count of Conspiracy, two
counts of Aggravated Assault, and one count of Misuse of a Weapon. Aplt. App.
at 24. Petitioner-Appellant was sentenced to a total term of imprisonment of 1,260
days of incarceration. Aplt. App. at 28. The total term of imprisonment included
sentencing for the individual offenses as follows: (1) Conspiracy 180 days; (2)
Aggravated Assault 360 days; (3) Aggravated Assault 360 days; and (4) Misuse of
a Weapon 360 days. Aplt. App. at 24. Petitioner-Appellant waived his right to
appeal the judgment or sentence in the Tohono O’odham Judicial Court. Aplt.
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App. at 25. Petitioner-Appellant did not file any action in the Tohono O’odham
Judicial Court following his sentence.
PROCEDURAL BACKGROUND
On November 23, 2010, Petitioner-Appellant filed his Petition. Aplt. App.
at 13. On January 5, 2011, Respondents-Appellees Silversmith and Hecht joined
in filing a motion to dismiss the Petition for failure to exhaust tribal remedies.
Aplt. App. at 62. On February 16, 2010, the Magistrate Judge filed Proposed
Findings of Fact and Recommended Disposition (“PFRD”) concerning the
Petition. Aplt. App. at 72. The PFRD recommended that the Petition be dismissed
for failure to exhaust tribal remedies. Aplt. App. at 76. On March 3, 2011,
Petitioner-Appellant filed objections to the PFRD. Aplt. App. at 84. On March 11,
2011, Petitioner-Appellant was released from custody, after having served his full
sentence. Aplt. App. at 93. The Court directed the parties to file briefs regarding
whether the Petition had become moot as a result of Petitioner-Appellant’s release.
Aplt. App. at 97. On September 1, 2011, the Magistrate Judge filed Amended
Proposed Findings and Recommendation on Disposition (“APFRD”). Aplt. App.
at 151. The APFRD recommended dismissal based both on the failure to exhaust
tribal remedies and mootness of the Petition. Aplt. App. at 211. On September 30,
2011, the district court accepted the APFRD and issued an order dismissing the
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Petition. Aplt. App. at 227. On October 28, 2011, Petitioner-Appellant timely
appealed. Aplt. App. at 238.
SUMMARY OF THE ARGUMENT
The district court correctly ruled that Petitioner-Appellant failed to exhaust
his tribal remedies prior to bringing an action in the federal district court.
Dismissal was proper on the basis of comity. The district court also correctly ruled
on the alternative grounds that Petitioner-Appellant’s Petition was moot due to his
unconditional release from custody since Petitioner-Appellant suffered no
collateral consequences as a result of his conviction.
ARGUMENT
I. THE DISTRICT COURT PROPERLY RULED THAT
VALENZUELA FAILED TO EXHAUST TRIBAL REMEDIES
A. Standard Of Review And Approach To Exhaustion
This circuit applies de novo review to a district court’s dismissal of a habeas
petition. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The tribal
exhaustion rule is a judicially created rule, which follows the lead of Congress in
encouraging tribal self-government. Natn’l Farmers Union Ins. Co. v. Crow Tribe,
471 U.S. 845, 857 (1985). Congress has indicated a strong interest in promoting
tribal sovereignty, including the development of tribal courts. Iowa Mutual Ins.
Co. v. LaPlante, 480 U.S. 9, 14-15 (1987). As a result, federal courts have
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acknowledged the need to allow tribal courts to make an initial determination of
tribal jurisdiction over matters arising on Indian reservations. Smith v. Moffett, 947
F. 2d 442, 444 (10th Cir. 1991). “Tribal courts play a vital role in tribal self-
government… A federal court’s exercise of jurisdiction over matters relating to
reservation affairs can … impair the authority of tribal courts.” Iowa Mutual at 14-
15. In order for a party to have exhausted his tribal remedies, it is well settled that
a party must, at least, receive a ruling from the appellate level of the tribal court
system. Iowa Mutual at 16-17. “Until petitioners have exhausted the remedies
available to them in the Tribal Court system, it would be premature for a federal
court to consider any relief.” Natn’l Farmers Union Ins. Co. v. Crow Tribe, 471
U.S. 845, 857 (1985).
Petitioner-Appellant was sentenced by the Tohono O’odham Judicial Court
on June 25, 2008. On November 23, 2010, Petitioner-Appellant filed the instant
action. Petitioner-Appellant did not first file a petition for writ of habeas corpus or
seek to commute his sentence with the Tohono O’odham Court of Appeals and has
thus not exhausted his tribal remedies.
B. Habeas Petitioners Must Exhaust Tribal Remedies
The Indian Civil Rights Act (“ICRA”) authorizes the filing of petitions for a
writ of habeas corpus by any person detained to test the “legality of his detention
by order of an Indian tribe.” 25 U.S.C. § 1303 (2006). Petitioner-Appellant argues
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that the requirement of tribal exhaustion should only apply to non-habeas cases and
should not apply to habeas cases. Petitioner-Appellant ignores Supreme Court
case law, case law from this Circuit, and the purpose underlying the requirement of
tribal exhaustion.
Despite Petitioner-Appellant’s attempt to distinguish habeas corpus
proceedings from non-habeas cases for exhaustion purposes, no such distinction
exists. The Tenth Circuit requires exhaustion of tribal remedies, including in
habeas corpus actions under the ICRA. Smith v. Moffett, 947 F.2d 442, 443 (10th
Cir. 1991); see Texaco, Inc. v. Zah, 5 F.3d 1374, 1378 (10th Cir. 1993) (“[w]hen
the activity at issue arises on the reservation, [exhaustion] policies almost always
dictate that the parties exhaust their tribal remedies before resorting to a federal
forum”); Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). The tribal
exhaustion rule has been interpreted by the Tenth Circuit to provide that, “absent
exceptional circumstances, federal courts typically ‘should abstain from hearing
cases that challenge tribal court jurisdiction until tribal court remedies, including
tribal court review, are exhausted.’” Crowe v. Dunlevy, P.C. v. Stidham, 640 F.3d
1140, 1149 (10th Cir. 2011) (quoting Bank of Okla. v. Muscogee (Creek) Nation,
972 F.2d 1166, 1170 (10th Cir. 1992)) (emphasis added, additional citations
omitted). Even when a federal court has jurisdiction over a claim, if the claim
arises in Indian country, the court is required to “stay its hand” until the party has
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exhausted all available tribal remedies. Cohen, Handbook of Federal Indian Law
at § 7.04 (2005 ed.) (citing Iowa Mut. Ins Co. v. LaPlante, 480 U.S. 9, 16 (1987);
Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857 (1985)).
Therefore, “all federal courts addressing the issue mandate that two prerequisites
be satisfied before they will hear a habeas petition filed under the ICRA: [(1)] The
petitioner must be in custody, and [(2)] the petitioner must first exhaust tribal
remedies.” Id. at § 9.09; § 9.09 n. 280. A court should not hear a petition for writ
of habeas corpus, unless both of these conditions are met. Any expansion of this
jurisdiction must come from Congress. Jeffredo v. Macarro, 599 F.3d 913, 918
(9th Cir. 2010).
Petitioner-Appellant protests that since the requirement to exhaust state
remedies is specified in 28 U.S.C. § 2254, but no such analogous tribal exhaustion
requirement is stated in 25 U.S.C. § 1303, then this Court should not require
exhaustion. Again, this argument is belied by established Tenth Circuit
precedent. Exhaustion of tribal remedies was not established by Congress. Rather,
it is a rule that has been created by the federal judiciary to “promot[e] tribal
sovereignty.” Smith, 947 F.2d at 444.
Finally, the same comity concerns expressed in National Farmers and Iowa
Mutual are present in the instant case. The Nation, like any governmental entity,
has a significant interest in ensuring that criminals within its midst are adequately
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and fairly punished. Tribal exhaustion allows tribes the opportunity to fully
examine the conviction and sentence and to fully develop the record prior to
examination by the federal district court.1 This process not only protects tribes’
sovereignty, but also aids the federal district court in its review by ensuring a fully
developed record.
Petitioner-Appellant was required to exhaust his tribal remedies. Petitioner-
Appellant has failed to account for his failure to pursue the habeas corpus process
that is available in the Tohono O’odham Judicial Court. As discussed below,
Petitioner-Appellant does not meet any of the exceptions for exhaustion and his
Petition was correctly dismissed by the district court.
C. Tribal Remedies Were Available To Petitioner-Appellant
The Tohono O’odham Code specifically provides for the remedy of habeas
corpus. 6 TOHONO O’ODHAM CODE, Chapter 3, Art. 2, Rule 24; CONSTITUTION OF
THE TOHONO O’ODHAM NATION, Art. VIII, Sec. 10(c) (Judiciary shall have power
to issue writs of habeas corpus).2 Aplt. App. at 78-79; 81. Petitioner-Appellant
candidly acknowledges that this remedy was available to him, but that he “chose
1 Petitioner-Appellant raises a number of factual allegations in his Petition, including denial of counsel. Petitioner-Appellant’s Opening Brief at 16. As aptly pointed out by the Magistrate Judge, had Petitioner-Appellant exhausted his tribal remedies, the record with respect to the factual issues, including waiver of counsel, would be in his possession. This fact further supports the tribal exhaustion requirement. Aplt. App. at 186. 2 The Tohono O’odham Code and Constitution are found at www.tolc-nsn.org.
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not to exercise” it. Petitioner-Appellant’s Opening Brief at 18. Despite exercising
his choice not to take advantage of this remedy, Petitioner-Appellant argues that
due to lack of counsel, “a tribal petition for habeas relief was not an available
option.” Petitioner-Appellant’s Opening Brief at 16.
First, Petitioner-Appellant argues that he waived his right to seek habeas
relief via his plea agreement. However, the plea agreement provides only that,
“defendant … waives any right to appeal the judgment and sentence…” Aplt. App.
at 25. A writ of habeas corpus is not an appeal of the judgment or sentence. The
district court correctly found that Petitioner did not waive his right to pursue a
tribal habeas petition. Aplt.. App. at 231, n. 3. The plea agreement entered into
by Petitioner-Appellant did not waive his right to collaterally attack the conviction
or sentence. United States v. Cockerham, 237 F.3d 1179, 1181-83 (10th Cir.
2001).
Second, Petitioner-Appellant argues that due to lack of counsel he was
unaware of his ability to file a petition for writ of habeas corpus in the Tohono
O’odham Judicial Court. However, Petitioner-Appellant does have counsel now.
Yet, no reason is provided why counsel in the instant case could not have filed an
action in the Tohono O’odham Judicial Court prior to filing in the federal district
court. Additionally, as the district court aptly finds, “Petitioner does not have a
right to counsel to advise him on habeas matters and his lack of familiarity with the
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possibility of a tribal habeas petition does not mean that he did not have an
opportunity to challenge the tribal court’s jurisdiction.” Aplt. App. at 6 (emphasis
in original) citing Bishop v. Colorado, 12 Fed. Appx. 807, 809 (10th Cir. 2001).
Indeed, as noted above, Petitioner-Appellant has acknowledged that he had such an
opportunity, and merely chose not to take advantage of it.
Finally, Petitioner-Appellant argues that since habeas review is
discretionary, exhaustion should not be required. This argument ignores the
underpinnings of case law requiring exhaustion, as discussed above. Although the
filing of a petition for writ of habeas corpus in Tohono O’odham Judicial Court
may be discretionary under the Tohono O’odham Rules, because Petitioner-
Appellant chose to seek federal review under the ICRA, that filing became
compulsory as a result of the tribal exhaustion rule as discussed herein.
D. Petitioner-Appellant Does Not Qualify For An Exception To Exhaustion
The Supreme Court has held that exhaustion of tribal remedies is not
required when an “assertion of tribal jurisdiction is motivated by a desire to harass
or is conducted in bad faith, or where exhaustion would be futile because of the
lack of an adequate opportunity to challenge the court’s jurisdiction.” Natn’l
Farmers Union Ins., 471 U.S. at 857 n.21. Barring the presence of an exception to
the exhaustion requirement, Petitioner-Appellant must exhaust his tribal remedies
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before the federal district court may entertain his Petition. Petitioner-Appellant
does not meet any of the recognized exceptions to the tribal exhaustion doctrine.
Petitioner-Appellant argues that the futility exemption applies to his Petition.
Petitioner-Appellant concludes that, based on his circumstances, he has “exhausted
any and all tribal remedies available to him.” Petitioner-Appellant’s Opening Brief
at 18. Unfortunately for Petitioner-Appellant, case law does not support his
position. Petitioner-Appellant merely recites his previous arguments discussed
above as grounds for claiming futility. However, as held in White v. Pueblo of San
Juan, the belief that tribal remedies did not exist “is not really the equivalent of
pursuing the remedy.” 728 F.2d 1307, 1313 (10th Cir. 1984). “[S]peculative
futility is not enough to justify federal jurisdiction. The tribal remedy must be
shown to be nonexistent by an actual attempt before a federal court will have
jurisdiction.” Ibid. In this case, tribal law explicitly provides for a habeas remedy.
Petitioner-Appellant’s contention that a tribal remedy did not exist based on his
circumstances is thus without merit.
II. THE DISTRICT COURT CORRECTLY RULED THAT
VALENZUELA’S PETITION IS MOOT
Petitioner-Appellant’s unconditional release from the Nation’s custody on
March 11, 2011, caused his Petition to be moot because it no longer presented a
case or controversy under Article III of the United States Constitution. U.S.
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CONST. art. III, § 2, cl. 1. “This case-or-controversy requirement subsists through
all stages of federal judicial proceedings, trial and appellate … The parties must
continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v.
Continental Bank Corp., 494 U.S. 472, 477-78 (1990).
A. No Article III Live Case Or Controversy Exists
In order to satisfy the case-or-controversy requirement in the habeas context,
a prisoner “must be ‘in custody’ when the application for habeas corpus is filed.”
Carafas v. LaValle, 391 U.S. 234, 238 (1968). Once the prisoner’s sentence has
expired, however, a petitioner in a habeas case can only avoid mootness upon
unconditional release if he can prove that he suffers concrete collateral
consequences as a result of the conviction. Carafas at 238. Throughout the
litigation, the petitioner “must have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed by a favorable judicial
decision.” Lewis v. Continental Bank Corp., 494 U.S. at 477. Mootness deprives a
court of jurisdiction. New Mexico Env’t Dept. v. Foulston, 4 F.3d 887, 888 (10th
Cir. 1993), cert. denied, 511 U.S. 1005 (1994). While Petitioner-Appellant was in
custody at the time the Petition was filed, upon unconditional release, he no longer
suffered an “actual injury” or concrete collateral consequences as a result of his
conviction, thus dismissal for mootness was proper.
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B. Petitioner-Appellant Suffers No Collateral Consequences
Collateral consequences “encompass a wide array of sanctions – termed civil
disabilities – that attach to, but are legally separate from the criminal sentence.”
Michael Pinard, Offender Reentry and the Collateral Consequences of Criminal
Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change 585, 586 (2006).
Collateral consequences include the inability to: engage in certain businesses, serve
as an official of a labor union for a specified period of time, vote in elections, or
serve as a juror. Carafas, 391 U.S. at 238.
Petitioner-Appellant argues that “[t]here is no showing that Mr. Valenzuela
has no possibility of any collateral legal consequences.” Petitioner-Appellant’s
Opening Brief at 22 (emphasis in original). In fact, it is Petitioner-Appellant’s
burden to make the showing that he suffers a collateral legal consequence as a
result of his conviction, not Respondents’ burden to prove that there is no
possibility of any collateral legal consequences. Wilcox v. Aleman, 43 F. App’x
210, 212 n.1 (10th Cir. 2002); Fratis v. Ortiz, 190 F. App’x 686, 688 (10th Cir.
2006). Petitioner-Appellant has failed to meet his burden. Petitioner-Appellant
has not and cannot allege that he has suffered any collateral consequences as
interpreted by Carafas.
As the Magistrate Judge correctly points out in the APFRD, Petitioner-
Appellant relies heavily on outdated case law that has been narrowed by
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subsequent Supreme Court decisions. Aplt. App. at 172. Petitioner-Appellant
cites Sibron, for the proposition that collateral consequences are presumed. Sibron
v. New York, 392 U.S. 40, 55 (1968). However, this position ignores the
development of law in this area since the late-1960s. In Lane, the Supreme Court
refused to extend the presumption of collateral consequences to the revocation of
parole. Lane v. Williams, 455 U.S. 624, 632 (1982). And in Spencer, the Court
directly addressed the uncomfortable nature of assuming collateral consequences
while finding a live case-or-controversy under Article III of the U.S. Constitution.
Spencer v. Kemna, 523 U.S. 1, 10-11 (1998). The Court in Spencer affirmed the
holding in Lane and refused to presume collateral consequences in the parole
revocation case. Id. at 14. Moreover, the Tenth Circuit has declared that, “Spencer
is the pivotal case because of the Supreme Court’s pronounced retreat from earlier
cases which had simply presumed the existence of collateral consequences.”
Wilcox v. Aleman, 43 F. App’x at 212 n. 1.
In Meyers, the Tenth Circuit declined to extend the presumption of collateral
consequences to supervised release. U.S. v. Meyers, 200 F.3d 715, 722 (10th Cir.
2000). Meyers also held that potential future impact of revocation of supervised
release on sentencing associated with crimes not yet committed was not sufficient
to overcome mootness. Id. at 722. The progression of cases since the late-1960s
prove that presumption of collateral consequences is no longer the rule.
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Petitioner-Appellant alleges three collateral consequences of his conviction
in an attempt to overcome mootness. First, Petitioner-Appellant alleges that he
suffered the injury of “the loss of 2 years and nearly 6 months of his liberty that
cannot be restored to him.” Petitioner-Appellant’s Opening Brief at 21. As an
initial matter, Petitioner-Appellant’s sentence is clearly a direct consequence of his
behavior, not a collateral consequence. Petitioner-Appellant cites no authority for
his position and no court has found that loss of liberty is a collateral consequence.
Direct consequences “include the length of the jail or prison sentence the defendant
receives [while] collateral consequences encompass a wide array of sanctions –
termed civil disabilities – that attach to, but are legally separate from the criminal
sentence.” Michael Pinard, Offender Reentry and the Collateral Consequences of
Criminal Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change at 586
(2006).
Second, Petitioner-Appellant alleges that this conviction could be used to
impeach his testimony in a speculative future proceeding. Again, Petitioner-
Appellant cites no authority for this argument. Tribal convictions are
misdemeanor convictions since sentences are limited to less than one year of
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imprisonment per offense.3 Petitioner-Appellant was convicted of four
misdemeanor offenses. Aplt. App. at 24. These misdemeanor convictions do not
“involve dishonesty or false statement,” and so could not be used to impeach future
testimony. Fed. R. Evid. 609(a) (crime can be used to impeach witness, if
probative value outweighs prejudicial effect, if the crime was “punishable by death
or imprisonment in excess of one year under the law which the witness was
convicted.”). Both the New Mexico and Arizona Rules of Evidence provide the
same. N.M.R. Evid. 11-609; Ariz. R. Evid. 609.
Third, Petitioner-Appellant alleges that this conviction could be used to
enhance a future sentence, should he commit another crime in the future. Even if
Petitioner-Appellant’s tribal conviction could be used to enhance his sentence
should he commit another crime in the future, it would not overcome a finding of
mootness. Spencer, 523 U.S. at 15. The Court in Spencer found that the
possibility of sentence enhancement was “contingent upon [the defendants’]
violating the law, being caught and convicted,” and defendants themselves were
“able – and indeed required by law – to prevent such possibility from occurring.”
3 At the time of Petitioner-Appellant’s conviction, ICRA mandated that “[n]o Indian tribe in exercising powers of self-government shall … require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000.” 25 U.S.C. § 1302(7) amended by Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2281.
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Id. (quoting Lane v. Williams, 455 U.S. at 632 n. 13). Although Petitioner-
Appellant argues that “prior tribal court convictions are routinely used against
Indian defendants in the federal sentencing scheme,” he provides no support for
this alleged fact. Petitioner-Appellant’s Opening Brief at 22. In fact, to the
contrary, Petitioner-Appellant notes in footnote 4, after reciting a percentage for
upward departures in sentencing due to criminal history, that “it is unknown how
many [upward sentencing departures due to criminal histories] relate to Indian
defendants.” Id. Petitioner-Appellant has not proved that he suffers collateral
consequences as a result of his conviction sufficient to avoid a finding of
mootness.
C. Vacatur Of The Sentence Is The Only Remedy That Would Be Available To Petitioner-Appellant
As the district court correctly points out, the maximum relief that Petitioner-
Appellant could hope to achieve even if his Petition was successful is vacatur of
the sentence. Aplt. App. at 234. The collateral consequences that Petitioner-
Appellant complains of, even if accepted as true, flow from the existence of
Petitioner-Appellant’s conviction, not the length of the sentence. Vacatur of the
sentence would not remove the conviction and thus would not impact any of the
claimed collateral consequences. As the district court was no longer able to grant
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effectual relief on the Petition, it correctly found the Petition to be moot. Aplt.
App. at 235.
Petitioner-Appellant makes four claims in his Petition: (1) denial of counsel;
(2) sentencing in excess of statutory maximum as set out in ICRA; (3) failure to
follow tribal court procedures and appoint counsel under the United States
Constitution; and (4) incarceration at an off-reservation jail is violative of the
United States Constitution and ICRA. Aplt. App. at 15-17. Even if Petitioner-
Appellant were successful on any of these claims, the maximum relief he is
entitled to is vacatur of his sentence, which would not change his alleged collateral
consequences.
As an initial matter, it appears that Petitioner-Appellant does not understand
that Indian nations exercising governmental powers are not bound by federal
constitutional limitations protecting individual rights against state or federal
infringement, except to the extent that Congress legislatively imposes those
standards. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-58 (1978); Talton v.
Mayes, 163 U.S. 376 (1896). “[I]t has been understood for more than a century
that the Bill of Rights and the Fourteenth Amendment do not of their own force
apply to Indian tribes.” Nevada v. Hicks, 533 U.S. 353, 383 (2001) (citation
omitted); see also, Chapoose v. Hodel, 831 F.2d 931, 934 (10th Cir. 1987).
Individual rights for persons subject to tribal authority derive from two sources:
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tribal bills of rights found in tribal constitutions and codes and federal statutes,
such as the ICRA. 25 U.S.C. § 1301, et seq. Petitioner-Appellant cannot sustain
claims that are based in the U.S Constitution against the Nation.
ICRA provides that a tribal defendant is entitled to counsel “at his own
expense.” 25 U.S.C. § 1302(6) (2006). Petitioner-Appellant has not alleged that
he attempted to retain counsel at his own expense and the Nation prevented him
from doing so. In fact, Petitioner-Appellant only posits that, “there is no record
that [Petitioner] waived his right to counsel.” Aplt. App. at 16. As discussed
above, Petitioner-Appellant can make no claim to counsel based in the U.S.
Constitution. The district court correctly found that this argument has no merit.
Aplt. App. at 182-184. However, even if Petitioner-Appellant could sustain a
claim based on denial of counsel, the maximum relief for such a claim is vacatur of
his sentence. Shayesteh v. City of South Salt Lake, 217 F.3d 1281 (10th Cir. 2000).
Next, Petitioner-Appellant claims that his sentence was in excess of the
statutory minimums in ICRA. The ICRA, at the time of Petitioner-Appellant’s
sentencing, provided that, “[n]o Indian tribe in exercising powers of self-
government shall … require excessive bail, impose excessive fines, inflict cruel
and unusual punishments, and in no event impose for conviction of any one
offense any penalty or punishment greater than imprisonment for a term of one
year and a fine of $5,000.” 25 U.S.C. § 1302(7)(2006) (emphasis added), amended
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by Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2281. At the
time of Petitioner-Appellant’s sentencing, the phrase “any one offense” was not
defined. However, developments since Petitioner-Appellant’s sentencing have
defined the phrase “any one offense” and clarified that the Nation was acting
within its authority when Petitioner-Appellant was sentenced to 1,260 days. The
Ninth Circuit defined “any one offense” in Miranda as discrete criminal violations.
Miranda v. Anchondo, __ F.3d __, 2012 WL 360767*6 (9th Cir. February 6,
2012). Additionally, Congress has defined “offense” in its amendment to the
ICRA via the Tribal Law and Order Act as “a violation of a criminal law.” 25
U.S.C. § 1302(e) (2011). Petitioner-Appellant was convicted of four distinct
violations of the Nation’s Criminal Code. His resulting sentence is lawful. Again,
however, as the district court correctly finds, even if Petitioner-Appellant was
successful in this claim, the maximum relief that the court could grant would be
vacatur of that portion of his sentence that exceeded one year. Aplt. App. at 200.
Petitioner-Appellant next argues that the Nation failed to follow its own
procedures and failed to appoint counsel, citing the U.S. Constitution. As
discussed above, Petitioner-Appellant is only entitled to counsel at his own
expense, in accordance with ICRA. 25 U.S.C. § 1302(6) (2006). Petitioner-
Appellant alleges no facts which indicate that the Nation failed to follow its own
procedures. With regard to this claim, the district court correctly found that
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Petitioner-Appellant “has failed to state a claim to relief that is plausible on its
face…” Aplt. App. at 186.
Finally, Petitioner-Appellant claims that his incarceration in an off-
reservation facility violated the ICRA and the U.S. Constitution. As discussed
above, Petitioner-Appellant cannot sustain a claim against the Nation based on the
U.S. Constitution. Additionally, as Respondent Silversmith was acting under color
of tribal law, not state law, an action sounding under 42 U.S.C. § 1983 is also
without merit. McKinney v. State of Okla., Dept. of Human Servs., 925 F.2d 363,
365-66 (10th Cir. 1991) (citing Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir.
1989). The district court correctly found that this claim is meritless. Aplt. App. at
189.
The district court correctly adopted the Magistrate Judge’s APFRD
regarding mootness of the Petition. Even if Petitioner-Appellant was successful on
his claims, the maximum relief the district court could have granted Petitioner-
Appellant is vacatur of his sentence, not his conviction. Vacatur of Petitioner-
Appellant’s sentence would not change the collateral consequences Petitioner-
Appellant would face. For that reason, dismissal of the Petition for mootness
grounds is correct.
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CONCLUSION
Dismissal of Petitioner-Appellant’s Petition by the district court was correct
and should be upheld by this Court. Two independent and alternative grounds for
dismissal exist. First, dismissal is appropriate for Petitioner-Appellant’s failure to
exhaust tribal remedies. Second, dismissal is appropriate as the Petition is moot.
Respondent-Appellee Hecht asks this Court to uphold the district court’s dismissal
of the Petition.
STATEMENT REGARDING ORAL ARGUMENT
Counsel does not request oral argument. Counsel does not believe that this
Court’s disposition of this case would be aided by oral presentation to this Court.
Respectfully submitted this 27th day of February, 2012.
TOHONO O’ODHAM NATION OFFICE OF ATTORNEY GENERAL
By: s/ Laura Berglan
Laura Berglan Doreen N. McPaul Assistant Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Attorneys for Respondent-Appellee Frank Hecht
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CERTIFICATION OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPE FACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(b) because this brief contains 4,819 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionately spaced typeface using a 14-point Times New Roman font.
s/ Laura Berglan
Laura Berglan Tohono O'odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Dated: February 27, 2012
Appellate Case: 11-2212 Document: 01018800370 Date Filed: 02/27/2012 Page: 29
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that:
1. All required privacy redactions have been made per 10th Cir. R. 25.5;
2. The CM/ECF submission is an exact copy of the hard copy submissions; and
3. The digital submissions have been scanned for viruses with the most recent version of Sophos Security, Version 9.5 and, according to the program are free of viruses as of February 27, 2012.
s/ Laura Berglan
Laura Berglan Tohono O'odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Dated: February 27, 2012
Appellate Case: 11-2212 Document: 01018800370 Date Filed: 02/27/2012 Page: 30
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day February, 2012, I electronically filed the foregoing Response Brief of Respondent-Appellee Hecht with the Clerk of the Court using the CM/ECF system and served seven copies of the Respondent-Appellee’s Brief via Federal Express addressed to: Elizabeth A. Shumaker Clerk of the Court U.S. Court of Appeals, 10th Circuit The Byron White U.S. Courthouse 1832 Stout Street Denver, CO 80257 I further certify that notification of such filing will be sent via the CM/ECF system to the following: Barbara Creel [email protected] Christine Zuni Cruz [email protected] Attorneys for Petitioner-Appellant
Desiree D. Gurule [email protected] Kevin M. Brown [email protected] Attorneys for Respondent-Appellee Silversmith
Appellate Case: 11-2212 Document: 01018800370 Date Filed: 02/27/2012 Page: 31
s/ Laura Berglan
Laura Berglan Tohono O’odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Dated: February 27, 2012
Appellate Case: 11-2212 Document: 01018800370 Date Filed: 02/27/2012 Page: 32