United States District Court, D. New Mexico
DANIEL E. CORIZ, Petitioner,
VICTOR RODRIGUEZ, ACTING WARDEN Sandoval County Detention Center, Sandoval County New Mexico, ROBERT B. CORIZ, TRIBAL COURT JUDGE and Governor for the Pueblo of Kewa, and KEWA PUEBLO Also known as Santo Domingo Pueblo, Respondents.
PROPOSED FINDINGS OF FACT AND RECOMMENDED
MATTER comes before the Court on Petitioner Daniel E.
Coriz's Motion to Substitute the Current Governor as the
Successive Officer in the Above-Captioned Case (Doc.
25), filed on May 1, 2018. The Honorable James Browning
referred this case to me 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. 16. Having reviewed
the submissions of the parties and the relevant law, the
Court recommends that Petitioner's Motion to Substitute
the Current Governor be granted in part and denied in part.
Coriz filed his Petition for Writ of Habeas Corpus Pursuant
to 25 U.S.C. § 1303, naming Robert B. Coriz, in both his
official capacity as Tribal Court Judge and Governor of
Pueblo of Kewa, as a respondent. Doc. 1. Respondent
Coriz is no longer the Governor of the Pueblo of Kewa, and
Petitioner now wishes to substitute the current Governor,
Thomas Moquino, Jr., who was appointed to that position in
2018, as a respondent.
Rule of Civil Procedure 25(d) provides that “[a]n
action does not abate when a public officer who is a party in
an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending.” Instead, the
“officer's successor is automaticity substituted as
a party, ” and the “Court may order substitution
at any time, but the absence of such an order does not affect
the substitution.” Fed.R.Civ.P. 25(d). “In
general [Rule 25(d)] will apply whenever effective relief
would call for corrective behavior by the one then having
official status and power, rather than one who has lost that
status and power through ceasing to hold office.” Fed.
R. Civ. P 25(d) advisory committee's note to 1961
amendment. The proper respondent, therefore, is “the
official with authority to modify the tribal conviction or
sentence.” Garcia v. Elwell, CIV 17-0333
WJ/GJF, 2017 WL 3172826, at *2 (D.N.M. May 25, 2017) (citing
Poodry v. Tonawando Band of Seneca Indians, 85 F.3d
874, 899-900 (2nd Cir. 1996)).
undisputed that Respondent Coriz is no longer Governor and
that Thomas Moquino, Jr. now holds the office of Governor of
the Kewa Pueblo. See Doc. 28 at 2. Therefore,
pursuant to Rule 25(d), Thomas Moquino, Jr. should be
substituted in his official capacity as the Respondent
Respondent Coriz should remain as a proper respondent but in
a different official capacity. It appears that both the
Governor of Kewa Pueblo and Tribal Court Judge are
appropriate respondents because both seem to have authority
to provide Petitioner's requested relief. See Doc.
7-1 at 22 (jail commitment form places Petitioner into
custody of the Sandoval County Detention Facility
“until his release shall be ordered by the Governor or
Judge of this Pueblo.”); Id. at 1 (Judgment
form, signed by Governor or Tribal Court Judge);
Garcia, 2017 WL 3172826, at *3 (“Respondent
Robert B. Coriz, in his capacity as Tribal Court Judge and
Governor for the Pueblo of Kewa is a proper tribal respondent
and will be ordered to answer the Petition”.). Although
Respondent Coriz no longer serves as Governor, he “has
been appointed to serve as the Tribal Court Judge in any
further proceedings against Petitioner.” Id.
at 2. As such, it appears that his official capacity role as
Tribal Court Judge in this case has not ended. The Court
accordingly recommends that Robert B. Coriz remain a
respondent but only in his official capacity as Tribal Court
the Court recommends, sua sponte, that Pueblo of Kewa be
dismissed based on sovereign immunity. “An application
for writ of habeas corpus is never viewed as a suit against
the sovereign, ” and “§ 1303 does not signal
congressional abrogation of tribal sovereign immunity, even
in habeas cases.” Poodry, 85 F.3d 899-900
(“Because a petition for writ of habeas is not properly
a suit against the sovereign, the Tonawanda Band is simply
not a proper respondent.”). Kewa Pueblo should
therefore be dismissed. Because Tribal sovereign immunity
does not bar “actions against tribal officers for writs
of habeas corpus, ” the remaining Respondents are
properly named in this proceeding. Id.
IT IS HEREBY RECOMMENDED that the Court
grant in part and deny in Petitioner's Motion to
Substitute the Current Governor as the Successive Officer in
the Above Captioned Case (Doc. 25) as follows:
Thomas Moquino, Jr, in his official capacity as Governor of
the Pueblo of Kewa, be substituted as a respondent in place
of Robert B. Coriz, as Governor;
Robert B. Coriz remain a respondent in his official capacity
as Tribal Court Judge; and
Respondent Kewa Pueblo be dismissed.
 In his Motion to Substitute,
Petitioner Coriz states that “[t]he Governor has
authority over Tribal Court decisions regarding Tribal
defendants, including the release of Tribal prisoners and
vacating Tribal Court convictions and sentences.”
Doc. 25, ¶ 2. He cites Garcia v.
Rivas, No. 15-cv-377 MCA/SCY, 2016 WL 10538197, at *2-3
(D.N.M. Mar. 11, 2016), for this proposition. While this may
be true, at least in part, ...