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Aguilar v. Rodriguez

United States District Court, D. New Mexico

September 18, 2018

KENNETH AGUILAR, Petitioner,
v.
VICTOR RODRIGUEZ, ROBERT B. CORIZ, and KEWA PUEBLO, Respondents.[1]

          MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND DISMISSING PETITION

          JUDITH C. HERRERA UNITED STATES DISTRICT JUDGE.

         THIS 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, [2] and deny as moot all other requests and motions.

         Background

         Petitioner 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.

         Petitioner must attempt to exhaust his tribal remedies before this Court will pass on the merits of his claims.

         The 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).

         This 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)).

         Federal 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).

         In this 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.

         Second, 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.

         The Magistrate Judge's Proposed Findings and Recommended Disposition

         Judge 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)).

         Petitioner's Objections

         Petitioner 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. Id.

         Standard of Review for Objections to Magistrate Judge's PF&RD

         A 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).

         I. Petitioner fails to show that tribal remedies ...


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