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Fragua v. Casamento

United States District Court, D. New Mexico

May 12, 2017

ANTHONY FRAGUA, Petitioner,
v.
AL CASAMENTO, Director, Sandoval County Detention Center, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Anthony Fragua's Petition for Writ of Habeas Corpus for Relief from Tribal Court Conviction Pursuant to 25 U.S.C. § 1303, filed December 27, 2016. Doc. 1. The Honorable Robert C. Brack dismissed the Pueblo of Jemez and ordered defendant Al Casamento to answer the petition. Doc. 5. Casamento filed his answer to the petition on February 3, 2017 (Doc. 7), and Fragua filed a response to Casamento's answer (Doc. 8) on February 16, 2017. Pursuant to 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Va. Beach Fed. Sav. & Loan Ass'n. v. Wood, 901 F.2d 849 (10th Cir. 1990), Judge Brack referred this case to me to recommend to the Court an ultimate disposition of the case. Doc 6. Having reviewed the submissions of the parties, the recording of Fragua's criminal trial, and the relevant law, I find that Fragua was never informed of his right to trial by jury and, therefore, recommend that his petition be GRANTED.

         I. Background Facts and Procedural Posture

         In his petition, Fragua alleges that he was not advised of his right to counsel until the morning of trial, that he never executed a written waiver of counsel, that the Pueblo of Jemez has no process for allowing or providing attorneys to practice before the Jemez Tribal Court, that the Jemez Tribal Court does not provide for the right to trial by jury, and that, because the Pueblo of Jemez does not provide any avenue for appeal, that he has exhausted all of his tribal remedies. Doc. 1. In response, Casamento argues that Fragua has not exhausted all of his tribal court remedies because he did not file for post-conviction relief, that the Pueblo of Jemez advised Fragua of his right to counsel at his arraignment and, therefore, did not violate his right to counsel, and that the Pueblo of Jemez did not violate Fragua's right to a jury trial because Fragua did not request one. Doc. 7.

         Fragua appeared for trial before the Jemez Tribal Court on November 23, 2016. Doc. 1 ¶ 3. He was found guilty of aggravated battery under section 30-2-19 of the Pueblo of Jemez Tribal Code. Id. ¶ 4. That same day, Fragua was sentenced to 364 days in jail, and was remanded into custody. Id. Judge Allan R. Toledo presided over Fragua's trial. See Doc. 7-1. The parties agree that Fragua was not represented by counsel, and that the case was not tried to a jury. Doc. 1 ¶ 3 and at 3; Doc. 7 at 2, 3.

         Casamento provided a copy of the recording of Fragua's trial to the Court on May 4, 2017. I have listened to the recording, but no transcript has been made.[1] On the morning of trial, Judge Toledo explained to Fragua that there had been no arraignment because “I guess we just assumed you were going to plead not guilty to the charge.” Judge Toledo told Fragua that he had a right to an attorney at his own expense. Fragua declined and told Judge Toledo that he just wanted to get the trial over with. Judge Toledo did not advise Fragua that he had a right to request a jury trial.[2]

         II. Discussion

         Under the Indian Civil Rights Act (“ICRA”), tribes may not deny criminal defendants facing imprisonment “the right, upon request, to a trial by jury, ” 25 U.S.C. § 1302(a)(10); or the right “at his own expense to have the assistance of counsel for his defense, ” id. § 1302(a)(6). Fragua contends that he was constructively denied the right to counsel because he was not informed of that option until the morning of trial, and that he was constructively denied the right to a jury trial because the Pueblo of Jemez has no mechanism for providing a jury trial, and because he was never informed of his right to a jury trial.

         A. Exhaustion of Remedies

         Federal courts “may not exercise jurisdiction over a habeas petition presenting ICRA claims unless the petitioner has first exhausted his tribal remedies.” Alvarez v. Lopez, 835 F.3d 1024, 1027 (9th Cir. 2016) (citing Grand Canyon Skywalk Dev., LLC v. ‘SA' NYU WA Inc., 715 F.3d 1196, 1200 (9th Cir. 2013)). The petitioner bears the burden of establishing that he has exhausted all tribal remedies or that pursuing such remedies would have been futile. See Id. (citing Jeffredo v. Macarro, 599 F.3d 913, 918 (9th Cir. 2010)); Wounded Knee v. Andera, 416 F.Supp. 1236, 1239 (D.S.D. 1976); see also Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir.1974) (“The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.”). However, “[i]f a tribal remedy in theory is non-existent in fact or at best inadequate, it might not need to be exhausted.” Wounded Knee, 416 F.Supp. at 1239 (citing Schantz v. White Lightning, 502 F.2d 67, 70 n.6 (8th Cir. 1974)).

         It is undisputed that Fragua did not pursue any kind of post-conviction motions practice or direct appeal in this matter. Fragua contends, however, that attempting to pursue post-conviction relief through the tribal courts would be futile because the Jemez Tribal Code does not provide any mechanism for pursuing such relief. Judge Toledo submitted an affidavit stating that post-trial remedies are available under the Jemez Tribal Code, but that no appeals have been filed during his tenure, and that Fragua did not file for post-conviction relief. Doc. 7-1 at 2.

The Jemez Tribal Code provides as follows:
RULE 22 NEW TRIAL (RESERVED);
RULE 24 RIGHT OF APPEAL; HOW TAKEN ...

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