United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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.
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
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.
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).
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.
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. Id.
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.”
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.
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
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.
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