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Toya v. Toledo

United States District Court, D. New Mexico

September 9, 2017

MILTON TOYA, Petitioner,
v.
ALAN TOLEDO, Pueblo of Jemez Tribal Court Judge, JOSEPH A. TOYA, Pueblo of Jemez Governor, WILLIAM WAQUIE, Pueblo of Jemez 1st Lt. Governor, and JONATHAN ROMERO, Pueblo of Jemez 2nd Lt. Governor, Respondents.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on Petitioner Milton Toya's First Amended Petition for Writ of Habeas Corpus for Relief from a Tribal Court Conviction Pursuant to 25 U.S.C. § 1303 (Doc. 10), filed June 9, 2017. Petitioner asserts that he was denied the right to counsel and the right to request a trial by jury during the course of his tribal-court prosecution. Id. at 2. Respondents, on the other hand, contend that Petitioner has failed to exhaust his tribal remedies, leaving this Court without jurisdiction to resolve the Petition. Doc. 13.

         The Honorable Judith C. Herrera referred this matter to me on August 18, 2017, to “conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case.” Doc. 17. Having reviewed the submissions of the parties and the relevant law, the Court finds that Petitioner has exhausted his tribal remedies or that resort to them would be futile. The Court furthermore concludes that there is merit to Petitioner's contentions, and therefore recommends that the Petition be granted.

         I. BACKGROUND

         Petitioner is an enrolled member of the Pueblo of Jemez, a federally-recognized Indian Tribe. Doc. 10 at 1. On January 25, 2017, Officer Jordan Shendo of the Jemez Pueblo Police Department allegedly discovered Petitioner passed out in the driver's seat of a pick-up truck within the exterior boundaries of the Jemez Indian Reservation. Doc. 13-1 at 2. The truck was running. Id. Based on these events Petitioner was charged with four crimes: aggravated driving under the influence, liquor violation, driving on a revoked or suspended license, and open container. Doc. 13-1 at 1.

         Petitioner was arraigned on January 27, 2017, before the Governor and Lieutenant Governors of the Pueblo. See Doc. 13-1 at 3; Doc. 14 (Notice of Lodging - Exhibit 3). At the conclusion of his arraignment, Petitioner pled guilty to all of the charges and signed a document so stating. Doc. 13-1 at 4. This document acknowledged that Petitioner was advised of the rights “as afforded to all defendants appearing before [Tribal] Court.” Id. These rights are stated under Rule 3 of the “Pueblo of Jemez Rules of Criminal Procedure.” As written, there is no mention of the right to a jury trial or an attorney in Rule 3. However, Petitioner was informed that he had a right to counsel at the arraignment. Doc. 14 (Exhibit 3).[1]

         Petitioner appeared for sentencing before the Honorable Alan Toledo, Tribal Court Judge, on February 8, 2017. Doc. 13-1 at 6. Second Lieutenant Governor Jonathan Romero was present at the hearing. Id. Judge Toledo explained to Petitioner the fines and jail sentences he had the authority to impose, and asked if there were any recommendations made as to sentencing at the arraignment. Doc. 14 (Exhibit 5). Petitioner then asked to change his plea to not guilty and proceed to a jury trial. Id. Petitioner also asked for an attorney. Id. Judge Toledo advised Petitioner that he should have asked for an attorney and a trial before he pled guilty, and he denied Petitioner's request to change his plea. Id.

         Judge Toledo told Petitioner that if he was unhappy with the decision, he could appeal to the Governor's office. Id. Judge Toledo explained that “because [Petitioner had] already entered a guilty plea, all [he] can do is ask for reconsideration” or appeal the denial of his oral request to change his plea. Id. Judge Toledo explained that when there is an appeal, he “sends it to the governor's office, and if they want to hear it, or they can deny it; if it's denied then my decision stands.” Id. Judge Toledo went on, “but if they want to consider his appeal, then he can send it to the council.” Id. The Second Lieutenant Governor then explained this process to Petitioner in Towa.[2] Id.

         Judge Toledo sentenced Petitioner to 180 days incarceration for the DUI and 90 days incarceration for the liquor violation, for a total of 270 days confinement. Id. Judge Toledo added, “But you can appeal my decision.” Id.

         Petitioner inquired about treatment in lieu of jail time. Id. Judge Toledo told him that it would be up to Behavioral Health and the probation office, which would give Petitioner an assessment. Id. Judge Toledo admitted that he did not know how this process worked. Id. Judge Toledo then remanded Petitioner back to custody to serve his sentence. Id. Judge Toledo also imposed fines in the amount of $500 for the DUI, and $100 each for the liquor violation, revoked license and open container charges, for a total of $800. Id. Judge Toledo reminded Petitioner that some of his jail time could be suspended for treatment, but indicated that Petitioner would remain incarcerated during the pendency of any appeal. Id. Petitioner stated, “my decision is treatment.” Id.

         On May 2, 2017, Petitioner filed a pro se Motion to Reconsider Sentence wherein he apologized and asked to be placed on probation. Doc. 13-1 at 7. Judge Toledo held a hearing on Petitioner's motion on May 18, 2017. Doc. 13-1 at 8; Doc. 14 (Exhibit 8). At the hearing Judge Toledo suspended the remainder of Petitioner's sentence and placed him on supervised probation. Id.; see Doc. 13-1 at 9 (Release Conditions).

         Meanwhile, Petitioner filed this Petition under 25 U.S.C. § 1303 of the Indian Civil Rights Act (“ICRA”) on February 23, 2017. Doc. 1. His Amended Petition was filed on June 9, 2017, Doc. 10, and this Court ordered Respondents to answer on June 22, 2017. See Doc. 11. The Court's Order stated that “Respondents' answer shall advise, but is not limited to, whether the Petition[er] has exhausted his tribal court remedies as to the issues raised in the federal petition.” Id. at 2. Respondents explain that their Answer is “limited to the Court's request” insofar as it only addresses exhaustion. Doc. 13 at 5, n.1. However, the Court finds that it can resolve the Petition on the merits, and so addresses them. To the extent that Respondents may seek to supplement their argument as to the merits of Petitioner's claims they may do so by objecting to these findings, as set forth below.

         II. ANALYSIS

         Pursuant to 25 U.S.C. § 1303, “[t]he privilege of the writ of habeas corpus shall be available to any person, in a Court of the United States, to test the legality of his detention by order of an Indian tribe.” Id.; see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978). “Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions.” United States v. Bryant, 136 S.Ct. 1954, 1966 (2016). Petitioner contends that his rights to counsel and a jury trial under ICRA were violated in this case. See Doc. 10 at 2. The Court agrees.

         A) ...


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