United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge
MATTER is before me on Petitioner Kenneth Aguilar's
Petition for Writ of Habeas Corpus Pursuant to 25 U.S.C.
§ 1303 [Doc. 1], filed on December 27, 2017. Respondent
Rodriguez answered on February 6, 2018. [Doc. 7]. Respondent
Coriz answered on February 9, 2018. [Doc. 9]. Petitioner
filed no reply. The Honorable Judith C. Herrera, United
States District Judge, referred this matter to me for
analysis and a recommended disposition. [Doc. 3]. Having
considered the parties' submissions, the record, and the
relevant law, and being otherwise fully advised in the
premises, I find that Plaintiff failed to exhaust his tribal
court remedies, and therefore, his Petition should be
is an enrolled member of the Pueblo of Kewa (also known as
the Pueblo of Santo Domingo), a federally recognized Indian
Tribe in New Mexico. [Doc. 1] at 3. On December 6, 2017, he
was convicted in the Pueblo of Santo Domingo Tribal Court of
two counts of fraud, two counts of larceny, and two counts of
conspiracy. [Doc. 1] at 1, [Doc. 1-1] at 1. The Tribal Court
imposed a total sentence of 2, 160 days' incarceration,
along with $20, 000 in restitution and $700 in fines. [Doc.
1] at 6, [Doc. 1-1] at 1.
argues that several aspects of his trial, conviction, and
sentence violate the Indian Civil Right Act and, therefore,
he is entitled to a writ of habeas corpus pursuant to 25
U.S.C. § 1303. [Doc. 1]. Among other defenses, Defendant
Coriz argues that Petitioner failed to exhaust his tribal
remedies and further argues that the Petition should be
doctrine of tribal exhaustion is a judicially created rule
established by the United States Supreme Court in
Nat'l Farmers Union Ins. Co. v. Crow Tribe, 471
U.S. 845 (1985), and expanded in Iowa Mut. Ins. Co. v.
LaPlant, 480 U.S. 9 (1987). Under the doctrine, a
federal court should, as a matter of comity, require the
parties to a lawsuit that implicates tribal interests to
first exhaust their remedies in tribal court before pursuing
an action in federal court. Keer-McGee Corp. v.
Farley, 115 F.3d 1498, 1507 (10th Cir. 1997). Tribal
courts play a vital role in tribal self-government, and
respect for that role requires that examination of tribal
issues be conducted first by the tribal court, itself.
Reservation Tel. Co-op. v. Affiliated Tribes, 76
F.3d 181, 184 (8th Cir. 1996). Absent exceptional
circumstances, federal courts are to abstain from hearing
cases that challenge tribal court authority until tribal
remedies, including tribal appellate review, are exhausted.
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,
1149 (10th Cir. 2011).
requirement for exhaustion applies to habeas petitions
brought pursuant to § 1303. Valenzuela v.
Silversmith, 699 F.3d 1199, 1205-06 (10th Cir. 2012).
“In order to satisfy the exhaustion requirement, a
criminal defendant must pursue a direct appeal or show that
such an appeal would have been futile.” Alvarez v.
Lopez, 835 F.3d 1024, 1027 (9th Cir. 2016). “[T]he
aggrieved party must have actually sought a tribal remedy,
not merely have alleged its futility.” White v.
Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir.
1984). “It is well established that ignorance of the
law, even for an incarcerated pro se petitioner, generally
does not excuse prompt filing.” Valenzuela,
699 F.3d at 1207 (alterations omitted) (quoting Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).
case, Petitioner concedes that he signed a form entitled
“Advisement of Rights Order, ” on which he
explicitly acknowledged, “I understand that I may
appeal my conviction, but I must do so within 7 days of my
conviction.” [Doc. 1-3] at 1; [Doc. 1] at 7. There is
no dispute that Petitioner did not attempt to appeal. Despite
the signed acknowledgement of the appeal deadline, Petitioner
asserts that he “knows of no available remedy from the
Tribal Courts.” [Doc. 1] at 7. He argues that he was
incarcerated and without counsel during the appeal period.
Id. He argues that “there is no appeal
procedure provided in the tribal court's traditional law
and process. Instead, the Tribal Council reviews the
decisions of the Governor, as needed.” Id. It
is undisputed that there is no written tribal code. [Doc. 1]
at 7, [Doc. 9] at 5. But, is also undisputed that the Tribal
Council reviews the decisions of the Governor. Id.
these circumstances, Petitioner argues that “efforts to
engage the sovereign action or response of the Tribal Court
are futile.” Id. Defendant Coriz sees it
differently. Defendant Coriz argues that the Petitioner knew
that he had seven days to appeal his conviction, but he made
no attempt to do so, and thus, the Petition should be
dismissed for lack of exhaustion. [Doc. 9] at 8-9. I agree
with Defendant Coriz.
was aware that he had seven days to appeal his conviction. He
admits that the Tribal Council reviews decisions of the
Governor. He admits that he made no attempt to appeal.
Petitioner's assertion that he himself knew of no
available remedy is belied by his signed statement that he
knew he had seven days to appeal. Moreover, even if it were
true that Petitioner himself knew of no available remedy and
were incarcerated and pro se during the appeal period, these
circumstances would not excuse his lack of exhaustion.
See Valenzuela, 699 F.3d at 1207 (“It is well
established that ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse
prompt filing.”) (alterations omitted). I find that
Petitioner failed to exhaust his tribal court remedies. This
Court should abstain from hearing Petitioner's claims.
See White v. Pueblo of San Juan, 728 F.2d 1307, 1312
(10th Cir. 1984) (“[T]he aggrieved party must have
actually sought a tribal remedy, not merely have
alleged its futility.”) (emphasis added).
IS THEREFORE RECOMMENDED that Petitioner Kenneth
Aguilar's Petition for Writ of Habeas Corpus Pursuant to
25 U.S.C. § 1303 [Doc. 1] be DISMISSED.
IS FURTHER RECOMMENDED that Petitioner's request
for “release . . . pending further review and
adjudication on the merits ...