United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS,
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION, AND DISMISSING PETITION
C. HERRERA UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Magistrate Judge's
Proposed Findings and Recommended Disposition [Doc. 11]
(“PF&RD”), issued on June 20, 2018.
Petitioner Kenneth Aguilar filed Objections [Doc. 12] on July
5, 2018. No. party responded to the Objections, and the time
for doing so has passed. Petitioner failed to exhaust his
claims in tribal court. The Court agrees with Judge Vidmar
that Petitioner has not shown that his failure to exhaust
should be excused. Accordingly, the Court will overrule the
Objections [Doc. 12], adopt the PF&RD [Doc. 11], dismiss
the underlying Petition for Writ of Habeas Corpus Pursuant to
25 U.S.C. § 1303 [Doc. 1] without
prejudice,  and deny as moot all other requests and
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,
$20, 000 in restitution, and $700 in fines. [Doc. 1] at 6,
[Doc. 1-1] at 1. Petitioner argues that he is entitled to a
writ of habeas corpus pursuant to 25 U.S.C. § 1303
because his trial, conviction, and sentence violated his
rights under the Indian Civil Rights Act
(“ICRA”). [Doc. 1]. Defendant Coriz argues that
the Petition should be dismissed because Petitioner failed to
exhaust his tribal remedies.
must attempt to exhaust his tribal remedies before this Court
will pass on the merits of his claims.
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 implicating 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');">640 F.3d 1140, 1149 (10th Cir. 2011).
exhaustion requirement 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)).
courts have waived the exhaustion requirement under certain
circumstances. For example, if tribal remedies do not exist,
are merely hypothetical, or are “informal, ”
exhaustion is not required. See Necklace v. Tribal Court
of Three Affiliated Tribes, 554 F.2d 845, 846 (8th Cir.
1977). Courts look at two indicators in determining whether a
tribal remedy actual exists. First, is there some indication
of an appellate process or other formal remedy? For example,
a written tribal code may describe the process for appealing
or otherwise obtaining review. Second, has the petitioner
actually attempted to obtain relief from the tribe? A failed
attempt to obtain review can show that the review process
does not actually exist or is futile. Compare
Valenzuela, 699 F.3d at 1205-06 (federal habeas petition
dismissed so that the petitioner could attempt to exhaust
tribal remedies where there was a written tribal code
describing a remedy, and the petitioner had made no attempt
to exhaust), and White, 728 F.2d at 1313 (upholding
the dismissal of a non-habeas ICRA case where there was a
written tribal code describing a tribal remedy and the
petitioners had made no attempt to exhaust), with Toya v.
Toledo, No. 17-cv-0258 JCH/KBM, 2017 U.S. Dist. LEXIS
160173, at *3-6, 8-9 (D.N.M. Sept. 9, 2017) (unpublished)
(Magistrate Judge's Proposed Findings and Recommended
Disposition) (no further exhaustion required where
the petitioner requested reconsideration of sentencing, but
did not appeal, and the written tribal code explicitly
prohibited appeals), adopted by district judge, 2017
U.S. Dist. LEXIS 159059 (D.N.M. Sept. 26, 2017), and
Garcia v. Rivas, No. 15-cv-0377 MCA/SCY, 2016 WL
10538197 (D.N.M. March 11, 2016) (unpublished) (Magistrate
Judge's Proposed Findings and Recommended Disposition)
(no further exhaustion required where the petitioner
attempted to obtain relief from the Pueblo three times and
was denied each time), and Necklace, 554 F.2d at 846
(exhaustion requirement waived where only “informal
procedures” were available in tribal court), and
Wounded Knee v. Andera, 416 F.Supp. 1236, 1239 (D.S.D.
1976) (no further exhaustion required where the
petitioner requested permission to appeal in accordance with
the tribal code's appeals section, but the tribe took no
action on the request for nearly six months).
case, both factors weigh against proceeding to the merits at
this time. First, there is some indication that an appeal
process exists. Petitioner admits receiving and signing an
“Advisement of Rights Order” which explicitly
states, “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. Granted, this Advisement is not as
definitive as a written tribal code. Nevertheless, it is an
express written reference to a specific formal remedy.
Petitioner admits he has made no attempt to appeal. Had he
tried and been rebuffed (or ignored), that failed attempt
might tend to support his argument that there is no actual
appellate process (and that the Advisement's reference to
an appeal is illusory). But he did not try. Importantly,
Petitioner cites no case suggesting that on facts similar to
these, the Court should proceed to the merits. In fact, in
surveying the cases, it is apparent that the Court should
abstain and allow Petitioner to attempt to bring his claims
before the Pueblo.
Magistrate Judge's Proposed Findings and Recommended
Vidmar issued his PF&RD on June 20, 2018. [Doc. 11]. He
found that Petitioner had failed to exhaust his tribal court
remedies. Id. at 4. Petitioner conceded that he
signed the “Advisement of Rights Order”
acknowledging, “I understand that I may appeal my
conviction . . .” [Doc. 1-3] at 1; [Doc. 1] at 7.
Petitioner made no attempt to appeal. Judge Vidmar found that
Petitioner's assertion that he believed there was no
available tribal court remedy was belied by the fact that he
signed a statement acknowledging his right to appeal. [Doc.
11] at 4. Moreover, Judge Vidmar found that even if
Petitioner believed there was no available remedy, and had
been incarcerated and pro se during the appeal period, that
would not have excused his lack of exhaustion. Id.
(citing 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)).
objects to the PF&RD on several grounds. [Doc. 12]. He
argues that he was not required to exhaust tribal remedies
because no tribal remedies actually existed. Id. at
4-6. Alternatively, he argues that if tribal remedies
existed, two exceptions to the tribal exhaustion rule excuse
his failure to exhaust: (1) the underlying criminal
proceedings against him were conducted in bad faith, and (2)
exhaustion would have been futile. Id. at 7-8.
Finally, he argues that he did exhaust all remedies that were
available “at the time.” Id. at 13.
Accordingly, Petitioner asks the Court to reject the
PF&RD and grant the petition. Id. at 14. In the
alternative, Petitioner asks the Court to order additional
briefing, allow discovery, conduct an evidentiary hearing,
and release him pending final ruling on the merits.
of Review for Objections to Magistrate Judge's
district judge must “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). “[O]bjections to the
magistrate judge's report must be both timely and
specific to preserve an issue for de novo review by the
district court[.]” United States v. 2121 E. 30th
St., 73 F.3d 1057, 1060 (10th Cir. 1996). To preserve an
issue, a party's objections to a PF&RD must be
“sufficiently specific to focus the district
court's attention on the factual and legal issues that
are truly in dispute.” Id. Moreover,
“theories raised for the first time in objections to
the magistrate judge's report are deemed waived.”
United States v. Garfinkle, 261 F.3d 1030, 1030- 31
(10th Cir. 2001).
Petitioner fails to show that tribal remedies ...