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 Emergency Motion for Preliminary Injunctive
Relief to Preserve the Status Quo Pending Review (Doc.
31), filed on May 29, 2018. Although the movant has
failed to file a Notice of Completion of briefing as required
by our District's Local Rules, see D.N.M.LR-Civ.
7.4(e), the Court will deem it ready for ruling given
Petitioner's characterization as an
“emergency” motion. The Court has reviewed the
submissions of the parties and the relevant law, and now
recommends that the presiding judge deny Petitioner's
December 6, 2017, the Pueblo of Santo Domingo Tribal Court
(“Tribal Court”) sentenced Daniel Coriz
(“Petitioner”) to 2, 520 days of imprisonment.
Doc. 7-1 at 22. Petitioner then brought a Petition
for Writ of Habeas Corpus under the Indian Civil Rights Act
(“ICRA”), 25 U.S.C. § 1303, contending that
his conviction and sentence violate federal law. Doc.
1. On March 30, 2018, Petitioner requested that the
Court grant him immediate release pending review of the
merits of his Petition. After hearing oral arguments on the
motion, the undersigned entered Proposed Findings and
Recommended Disposition (“PFRD”) on May 15, 2018
recommending that Judge Browning deny immediate release and
that an expedited evidentiary hearing be held as soon as
possible to address the issues of exhaustion of remedies and
waiver of rights. As of today, Judge Browning has not yet
addressed objections to that PFRD.
his conviction and at the time of the filing of the instant
motion, Petitioner Daniel Coriz was held in custody at the
Sandoval County Detention Center (“SCDC”).
Doc. 31 at 2. According to Petitioner, Respondent
Robert Coriz (who presides as the Tribal Court Judge)
“unilaterally and suddenly made the decision to
transfer Petitioner Coriz from SCDC to a detention facility
in Towaoc, Colorado." Id. Petitioner indicates
in his Emergency Motion that he
seeks only to prevent or prohibit a unilateral decision to
change the status quo by Respondent Coriz (former Governor
and tribal court judge) that may significantly change the
status of the case by divesting this Court of jurisdiction.
If the transfer is allowed, Respondent Coriz may move to
dismiss the case for lack of custodial jurisdiction in New
Mexico, under district court case law supporting removal to
the U.S. District of Colorado for tribal habeas petitioners.
31 at 2-3 (citation and quotation omitted). In their
opposition briefing on the Emergency Motion, Respondents
advise that Petitioner was transferred to the Chief Ignacio
Justice Center detention facility in Towaoc, Colorado on May
25, 2018 where he is now housed in general population.
further argue that injunctive relief is unavailable under the
Indian Civil Rights Act (“ICRA”). Doc.
35 at 2. Indeed, “[t]he Indian Civil Rights Act
does not expressly or impliedly authorize actions for
declaratory or injunctive relief against either the tribe or
its officials.” Tillett v. Hodel, 730 F.Supp.
381, 383 (W.D. Okla. 1990), aff'd sub nom. Tillett v.
Lujan, 931 F.2d 636 (10th Cir. 1991) (citing Santa
Clara Pueblo v. Martinez, 436 U.S. 49 (1978)). It is
unsurprising, therefore, that Petitioner fails to counter
this argument and instead relies on “this Court's
inherent and equitable authorities” as the purported
source of authority for granting the requested relief
Doc. 37 at 1-2.
even if such inherent authority could have supported the
granting of the requested injunctive relief, Petitioner fails
to persuade this Court that it should exercise such
authority. Respondents assert, and Petitioner does not
dispute, that the Tribe uses SCDC for short-term detention
and depends on the BIA to provide long-term detention
facilities, such as the Towoac BIA-operated facility.
Doc. 35 at 3-4. Petitioner makes no showing of
irreparable injury to Petitioner from his placement in the
general population at BIA's closest facility there in
Colorado. Respondents also represent that the BIA will
transport Petitioner for any hearings at which his presence
contrary to Petitioner's assertion, the transfer of his
physical custody to the Towaoc detention facility does not
deprive this Court of jurisdiction to address his Petition.
Petitioner relies on the Cheykaychi decision by the
Honorable Kenneth Gonzales for the proposition that
“Respondent Coriz may move to dismiss the case for lack
of custodial jurisdiction in New Mexico.” Doc.
31 at 2-3; Cheykaychi v. Geisen and Kewa
Pueblo et al, CIV 17-0514 KG/GBW, Doc. 10 (D.N.M. July
5, 2017). The Court feels confident that such a request, if
made, would be rejected for the reasons set forth below.
Cheykaychi, the petitioner had likewise been
transferred to the Towaoc facility during the pendency of the
Section 1303 habeas proceedings that challenged his Kewa
Pueblo conviction and sentence. There, Judge Gonzales sua
sponte entered an order to show cause why the case
should not be transferred to Colorado federal district court.
After briefing by the parties, Judge Gonzales set forth his
rationale supporting the final decision to transfer the
The Rules Governing Section 2254 Cases In The United States
District Courts, which are applicable to habeas petitions
filed under 25 U.S.C. § 1303, provide that if a
petitioner currently is in custody pursuant to a court
judgment, then the proper respondent is the officer who has
custody of the petitioner. See Rule 1(b). . . . This is
consistent with the “long standing practice . . . in
habeas challenges to present physical confinement -
‘core challenges' - [that] the default rule is that
the proper respondent is the warden of the facility where the
prisoner is being held, . . . [rather] than some other remote
supervisory official.” Rumsfeld [v. Padilla],
542 U.S. at 435 (2004). Although Petitioner is in tribal
custody, rather than federal or state custody, his challenge
to his present physical confinement is “not unique in
any way that would provide arguable basis for a departure
from the immediate custodian rule.” Id. at
442. . . . When a petitioner challenges his present physical
custody, the immediate custodian rule “has consistently
been applied in this core habeas context within the United
States.” Id. Therefore, the Court concludes
that the proper respondent in the present case is
Petitioner's immediate physical custodian, [the Warden of
the Colorado facility].
Id. at 2-3 (quotation omitted). Simply put, this
Court respectfully disagrees.
really the nature of the relief requested that is central to
the inquiry. Although a habeas petition under 25 U.S.C.
§ 1303 seeks release from both immediate and future
custody, it actually attacks the underlying criminal
conviction and sentence, and the release from custody is a
consequential result of invalidation of the conviction and
sentence, not invalidation of the custody, itself. Because
tribal habeas corpus petitions under the ICRA such as this
one filed by Daniel Coriz are in the nature of collateral
attacks on the underlying conviction and sentence, rather
than a direct attack on immediate physical custody, they are
not "core" proceedings under 28 U.S.C. § 2241.
a Section 1303 petition is more akin to collateral habeas
attacks on state convictions and sentences under 28 U.S.C.
§ 2254 and collateral habeas attacks on federal
convictions and sentences under 28 U.S.C. § 2255. When
the attack is instead a direct attack on immediate physical
custody (like the enemy combatant detention at issue in
Rumsfeld), then jurisdiction is proper only in the
District of custody and the proper respondent is the person
having physical custody. Rumsfeld v. Padilla, 542
U.S. 426, 442-43 (2004). Where, instead, the attack is a
collateral attack on the underlying conviction or sentence,
jurisdiction is proper only in the District where the
conviction or sentence was imposed and the proper respondent
is the government official imposing the conviction or
sentence (attorney general of the state for state convictions
and sentences and the USA for federal). See Rule
2(b) of the Rules Governing Section 2254 Proceedings and Rule
2 of the Rules Governing Section 2255 Proceedings. If that
was not the case, why the necessity to exhaust tribal
remedies prior to seeking relief from federal
Court is not alone in reaching a conclusion contrary to that
of Judge Gonzales. Both Chief Judge William
“Chip” Johnson and District Judge Judith C.
Herrera have found that, for a collateral attack on a tribal
conviction or sentence, jurisdiction is proper in the
District where the conviction or sentence was imposed and the
proper respondent is the tribal official or officials that
imposed the conviction or sentence. See Garcia v.
Elwell, 2017 WL 3172826 (D.N.M. 2017) (Doc. 8 in CIV
17-0333 WJ/GJF) and Toya v. Casamento, 2017 WL
3172822 (D.N.M. 2017) (Doc. 9 in CIV 17-0258 JCH/KBM). They,
as do I, rely on the Second Circuit's observation that
“[t]he important thing is . . . that the petitioner
name as respondent someone (or some institution) who has both
an interest in opposing the petition if it lacks merit, and
the power to give the petitioner what he seeks if the
petition has merit-namely, his unconditional freedom.”
Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d
874, 899-900 ...