CASE NO. 11-2212 IN THE UNITED STATES COURT OF · PDF filePETITIONER-APPELLANT’S OPENING...

CASE NO. 11-2212

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ALVIN VALENZUELA )

)

Petitioner – Appellant, )

)

V. )

)

STEVE SILVERSMITH, Warden, )

McKinley Adult Detention Center, and )

FRANK HECHT, Corrections )

Administrator, Tohono O‟odham Nation )

)

Respondents – Appellees. )

On Appeal from the United States District Court

For the District of New Mexico

The Honorable Judge M. Christina Armijo

10-cv-01127-MCA-GBW

PETITIONER-APPELLANT’S OPENING BRIEF

Respectfully submitted,

CHRISTINE ZUNI CRUZ

BARBARA LOUISE CREEL

Attorneys for Appellant

University of New Mexico Clinical Law Programs

MSC11 6070

1 University of New Mexico

Albuquerque, NM 87131-0001

(505) 277-5265

Oral Argument Requested.

January 24, 2012

Appellate Case: 11-2212 Document: 01018783435 Date Filed: 01/24/2012 Page: 1

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TABLE OF CONTENTS

STATEMENT OF RELATED CASES ............................................................................... 1

STATEMENT OF JURISDICTION ................................................................................... 1

STATEMENT OF THE CASE ........................................................................................... 2

STATEMENT OF THE FACTS ......................................................................................... 3

Mr. Valenzuela Pled Guilty in Tribal Court and Waived his Right to Appeal Without

the Benefit of Counsel and Without a Valid Waiver of his Right to Counsel Under The

Indian Civil Rights Act (“ICRA”).................................................................................... 3

Mr. Valenzuela Timely Filed his Federal Habeas Petition Pursuant to 25 U.S.C. § 1303

to Challenge the Underlying Conviction and the Sentence in Excess of the Statutory

Maximum Set Forth in ICRA ........................................................................................... 5

The First Set of Findings and Recommendations Entered while Mr. Valenzuela was

Still in Custody Failed to Comprehend the Inapplicability or Futility of Exhaustion in

this Case. .......................................................................................................................... 7

The Second Set of Findings and Recommendations were Entered After the Expiration

of Mr. Valenzuela‟s Sentence and Release from the Tribal Court‟s Illegal Conviction

and Order. ......................................................................................................................... 7

SUMMARY OF THE ARGUMENTS ................................................................................ 9

I. MR. VALENZUELA MET THE EXHAUSTION REQUIREMENT AND IS

ENTITLED TO FEDERAL COURT REVIEW OF THE MERITORIOUS CLAIMS IN

HIS PETITION .............................................................................................................. 11

A. The Exhaustion Requirements of 28 U.S.C. § 2254 and Other Statutes Do Not

Apply on their Face to Mr. Valenzuela‟s Petition ......................................................... 11

B. If Exhaustion is Required Under § 1303, it Should be Analyzed in the Habeas

Context ........................................................................................................................... 13

C. Because his Uncounseled Plea Agreement Waived his Right to Appeal, Mr.

Valenzuela Had No Available Tribal Court Remedies .................................................. 15

D. Petitioner Valenzuela is Not Required to Seek Discretionary Review ................... 17

II. TRIBAL COURT EXHAUSTION WOULD BE FUTILE ........................................ 17

III. MR. VALENZUELA‟S CASE IS NOT MOOT AS THE FEDERAL COURT HAS

JURISDICTION AND HIS PETITION CHALLENGES THE ILLEGAL TRIBAL

COURT CONVICTION ................................................................................................ 19


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A. Mr. Valenzuela Timely Filed his Petition While in Custody on the Tribal Court

Order Issued in Violation of The Indian Civil Rights Act ............................................. 19

B. A Live Case or Controversy Exists When the Appellant Challenges the Validity of

his Conviction ................................................................................................................ 20

IV. ADDITIONALLY, MR. VALENZUELA SUFFERS DIRECT AND

COLLATERAL CONSEQUENCES AND IS ENTITLED TO HABEAS REVIEW

AND RELIEF ON HIS MERITORIOUS CLAIMS ...................................................... 20

A. Mr. Valenzuela Suffers Unique Federal Collateral Consequences ......................... 22

B. Mr. Valenzuela Suffers Collateral Consequences in State Proceeding. .................. 23

V. A REMEDY EXISTS IN FEDERAL HABEAS CORPUS AS THE FEDERAL

COURT CAN GRANT EFFECTIVE RELIEF BY VACATING THE WRONGFUL

AND UNLAWFUL TRIBAL CONVICTION .............................................................. 24

CONCLUSION ................................................................................................................. 26


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TABLE OF AUTHORITIES

Cases

Acosta-Vigil v. Delorme-Gaines, 672 F.Supp.2d 1194 (D.N.M. 2009) ..................... 14, 16

Azure-Lone Fight v. Cain, 317 F.Supp.2d 1148 (D.N.D. 2004) ....................................... 15

Boozer v. Wilder, 381 F.3d 931 (9th

Cir. 2004) ................................................................ 15

Brecht v. Abrahamson, 507 U.S. 619 (1993) .................................................................... 14

Carafas v. LaVallee, 391 U.S. 234 (1968) ................................................ 14, 20, 22, 26, 27

Colliflower v. Garland, 342 F.2d 269 (1965) .................................................................... 12

Engle v. Isaac, 456 U.S. 107 (1982) .................................................................................. 14

Green v. Haskell County Board Of Com‟rs, 568 F.3d 784 (10th

Cir. 2009) ..................... 27

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) ........................................................... 14

Kan. Judicial Review v. Stout, 562 F.3d 1240 (10th

Cir. 2009) ........................................ 27

Pennsylvania v. Mimms, 434 U.S. 106 (1977).................................................................. 23

Peyton v. Rowe, 391 U.S. 54 (1968) ................................................................................. 28

Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2nd

Cir. 1996) ................... 16

Rumsfeld v. Padilla, 543 U.S. 426 (2004) ........................................................................... 6

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ............................................ 12, 13, 15

Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948 (9th

Cir. 1998) ......... 16

Sibron v. New York, 392 U.S. 40 (1968) .............................................................. 21, 22, 23

Spencer v. Kemma, 523 U.S. 1 (1998) .................................................................. 21, 22, 23

State v. Graves, 150 Ore. App. 437 (Or. Ct. App. 1997) .................................................. 25


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State v. Spotted Eagle, 71 P.3d 1239 (Mont. 2003) .......................................................... 25

State v. Stensgar, No. 14627-8-III, 1996 WL 460262 (Wash. Ct. App. Aug. 13, 1996) .. 25

United States v. Apfelbaum, 445 U.S. 115 (1980) ............................................................ 12

United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011) .............................................. 24

United States v. Hensel, No. 09-2283, 377 Fed. Appx. 748 (10th

Cir. May 3, 2010) ....... 21

United States v. Meyers, 200 F.3d 715 (10th

Cir. 2000) .................................................... 21

United States v. Shavanaux, 647 F.3d 993 (10th Cir. 2011) ............................................. 24

Wounded Knee v. Andera, 416 F.Supp. 1236 (D.S.D. 1976) ........................................... 13

Statutes

18 U.S.C. §117 .................................................................................................................. 24

25 U.S.C. § 1302 (2006) ................................................................................................ 5, 27

25 U.S.C. § 1303 (2006) .................................................................. 1, 2, 5, 8, 11, 12, 13, 18

28 U.S.C. § 1291 (2006) ...................................................................................................... 1

Kan. Crim. Code § 21-4711(e) (2007) .............................................................................. 25

Other Authorities

Kevin K. Washburn, A Different Kind of Symmetry, 34 N.M. L. Rev. 263, app. 290-96

(2004) ............................................................................................................................. 25

U.S. Sentencing Guidelines Manual § 4A1.2(i); 4A1.3 (2003) ........................................ 24


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STATEMENT OF RELATED CASES

There are no prior related appeals in this case.

STATEMENT OF JURISDICTION

The district court has jurisdiction to adjudicate the merits of Mr. Valenzuela‟s

Petition for Writ of Habeas Corpus (“Petition”) under 25 U.S.C. § 1303 (2006). On

September 30, 2011, the district court adopted Magistrate Judge Gregory B. Wormuth‟s

(“Magistrate Judge”) Amended Proposed Findings and Recommendation on Disposition,

(Doc. 36, Aplt. App. at 151),1 and dismissed Mr. Valenzuela‟s Petition citing a perceived

failure to exhaust tribal remedies and mootness. (Doc. 40, Aplt. App. at 227).

On September 30, 2011, District Court Judge M. Christina Armijo overruled Mr.

Valenzuela‟s objections and dismissed the case. (Doc. 40, Aplt. App. at 227). A Final

Order dismissing the case was issued on the same day. (Doc. 41, Aplt. App. at 237).

On October 28, 2011, Mr. Valenzuela timely appealed the Final Judgment of the

district court. (Doc. 42, Aplt. App. at 238). This Court has jurisdiction pursuant to 28

U.S.C. § 1291 (2006).

STATEMENT OF THE ISSUES

The questions presented concern the exhaustion and mootness analysis and

requirements applicable to an Indian habeas corpus proceedings pursuant to 25 U.S.C. §

1303. In deciding whether Mr. Valenzuela is entitled to federal habeas corpus review, the

Court must decide: whether an Indian habeas petitioner challenging a conviction and

1 Documents referenced as “Doc. 1 at 2, Aplt. App. 1” refer to the clerk‟s numbered record of

documents from the docket of 1:10-cv-01127, and the pinpoint page number within that

numbered document, and the page numbers of the Appendix attached to this brief.


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sentence by an Indian tribe under 25 U.S.C. § 1303, is required to exhaust tribal

remedies; and if so, what judicially created exhaustion requirements are applicable.

Because Mr. Valenzuela served the entirety of his 1,260 day tribal court sentence before

the district court decided exhaustion, the Court must also decide whether his Petition,

timely filed while in custody and challenging the legality of the tribal conviction, was

rendered moot by his release. Mr. Valenzuela contends that he has met any exhaustion

requirements and that his Petition presents a live case or controversy due to the lingering

unlawful tribal court conviction, the waiver of his right to appeal, and the presumed

collateral consequences, actually and potentially suffered by him.

STATEMENT OF THE CASE

On November 23, 2010, Mr. Valenzuela brought his Petition for Writ of Habeas

Corpus pursuant to 25 U.S.C. § 1303, to challenge the Tohono O‟odham‟s violation of

his rights under the Indian Civil Rights Act of 1968 in his Tribal court case. (Doc. 1,

Aplt. App. at 13). On February 16, 2011, Magistrate Judge Wormuth issued first

Proposed Findings and Recommendations finding a failure to exhaust tribal remedies and

recommending dismissal based on the Tribe‟s motion. (Doc. 18, Aplt. App. at 72). On

March 3, 2011, Mr. Valenzuela timely filed objections to the Proposed Findings and

Recommendation on Disposition, pointing out that the specialized nature of 25 U.S.C. §

1303 granting for federal habeas review warranted a specialized approach to exhaustion.

(Doc. 20, Aplt. App. at 84).

On March 11, 2011, while his federal habeas action was pending, Mr. Valenzuela

was released from custody, having served the entirety of the illegal 1,260 day sentence


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imposed by the Tribe. (Doc. 23, Aplt. App. at 93). On April 4, 2011, the Court held a

hearing and ordered briefing on the issue of mootness in light of the expiration of his

sentence and release from the tribal court order of conviction. (Doc. 23, Aplt App. at 96).

On September 1, 2011, Magistrate Judge Wormuth entered his Amended Proposed

Findings and Recommendation on Disposition recommending the case be dismissed for

failure to exhaust tribal remedies and for mootness. (Doc. 36, Aplt. App. at 151).

Although the court ordered no briefing or development of the record on the merits of the

Petition challenging the underlying tribal conviction, the Magistrate Judge also reached

the merits of Mr. Valenzuela‟s claims.

Mr. Valenzuela filed Objections to the Amended Proposed Findings and

Recommendation on Disposition on September 21, 2011. (Doc. 39, Aplt. App. at 213).

On September 30, 2011, District Court Judge M. Christina Armijo overruled Mr.

Valenzuela‟s objections and ordered the case be dismissed. (Doc. 40, Aplt. App. at 227).

A Final Order dismissing the case was issued on the same day. (Doc. 41, Aplt. App. at

237). It is from this Final Order that Mr. Valenzuela seeks de novo review in this timely

appeal.

STATEMENT OF THE FACTS

Mr. Valenzuela Pled Guilty in Tribal Court and Waived his Right to Appeal Without

the Benefit of Counsel and Without a Valid Waiver of his Right to Counsel Under The

Indian Civil Rights Act (“ICRA”)

On June 24, 2008, Alvin C. Valenzuela, an eighteen-year-old Indian male and

enrolled member of the Tohono O‟odham Nation (“the Tribe”), appeared before the

Tohono O‟odham Judiciary Court to plead guilty to serious charges under the tribal code.


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(Doc. 1-4, Aplt. App. at 23). Without advice or counsel, Mr. Valenzuela pled guilty to

pursuant to a written Plea Agreement (“Plea Agreement”). (Doc. 1-4, Aplt. App. at 23).

The Tribe was represented by the Assistant Chief Prosecutor, Robert J. Bushkin.

At the time of the plea, Mr. Valenzuela had been in custody for over 300 days on

pre-trial detention. Mr. Valenzuela was immediately arrested and taken into custody after

a serious incident on the reservation that occurred on July 29, 2007. Two days later, the

Tribe charged him with eight (8) different violations of the Tribe‟s Criminal Code:

Conspiracy, Unlawful Assembly, two Counts of Aggravated Assault, two Counts of

Misuse of a Dangerous Weapon and or Instrument, and Threatening . (Doc. 1-3, Aplt.

App. at 19).

The complaint alleged that Mr. Valenzuela and another individual were involved

in an incident within the exterior boundaries of the reservation boundaries that resulted in

the death of two others. (Doc. 1-3, Aplt. App. at 19). Mr. Valenzuela was not afforded

counsel, but was informed he would face federal prosecution for the serious crimes

charged. (Doc. 1-5, Aplt. App. at 29).

On June 25, 2008, the Tribal Court accepted the plea, presumably on the record.

(Doc. 1-4, Aplt. App. at 24). Under the terms of the plea, Mr. Valenzuela pled guilty four

counts, in exchange for a dismissal of the lesser charges of Threatening, Unlawful

Assembly, Misuse of a Weapon and Contributing to the Delinquency of a Minor, and

waived his right to appeal in Tribal Court. Id. In accordance with the uncounseled guilty

plea, the Tribal Court imposed a sentence of 1,260 days in jail. (Doc. 1-5, Aplt. App. at

29).


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Later, the Tribe sent Mr. Valenzuela to the McKinley County Detention Center, an

off- reservation out of state jail in Gallup, New Mexico to serve his 3 year sentence.

(Doc. 9, Aplt. App. at 45).

Mr. Valenzuela Timely Filed his Federal Habeas Petition Pursuant to 25 U.S.C. § 1303

to Challenge the Underlying Conviction and the Sentence in Excess of the Statutory

Maximum Set Forth in ICRA

On November 23, 2010, while in custody on the Tribal conviction and sentencing

order, Mr. Valenzuela filed his Petition for the Writ of Habeas Corpus in Federal Court.

(Doc. 1, Aplt. App. at 13). At that point, Mr. Valenzuela had been in jail for

approximately 40 months. The Petition, filed pursuant to 25 U.S.C. § 1303 to “test the

legality of his detention by order of an Indian [T]ribe,” set forth four meritorious grounds

for relief:

CLAIM 1: The Tribe violated Mr. Valenzuela‟s due process rights when it

imposed a penalty in excess of the statutory maximum under the Indian Civil

Rights Act 25 U.S.C. § 1302 (2006);

CLAIM II: The Tribe violated Mr. Valenzuela‟s right to counsel guaranteed under

the Indian Civil Rights Act, 25 U.S.C. § 1302(6) (2006);

CLAIM III: The Tribe deprived Mr. Valenzuela of his liberty without due process

of law as required under the Indian Civil Rights Act, 25 U.S.C. § 1302(8) (2006)

and United States Constitution when the Tribal Court failed to follow tribal court

procedures and the federal system failed to appoint counsel under the United

States Constitution;

CLAIM IV: Mr. Valenzuela‟s rights as a United States Citizen are violated by

continued incarceration in an off-reservation jail facility pursuant to a contract

paid for by federal funds when the detention is illegal and contrary to the United

States Constitution and the Indian Civil Rights Act. Id.

On November 29, 2010, Mr. Valenzuela‟s Petition was referred to Magistrate

Judge Gregory B. Wormuth. On December, 1, 2010, the Magistrate Judge issued an order


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substituting Steve Silversmith, Deputy Warden of McKinley County Detention Center, as

the sole respondent, and terminated the Tribe from the case citing Rumsfeld v. Padilla,

543 U.S. 426, 435 (2004). (Doc. 4, Aplt. App. at 32).

On December 16, 2010, the Tribe moved for reconsideration of the designation of

the warden as the sole respondent on the grounds that it was the real party in interest.

(Doc. 9, Aplt. App. at 44) On January 4, 2011, the Magistrate Judge granted the Motion

for Reconsideration, in part, and allowed the Tribe five (5) days to appoint the

appropriate tribal official to appear in the case. (Doc. 12, Aplt. App. at 55). The Court did

not set out a briefing schedule or set forth an Order to Respond or produce the tribal court

record.

Because one month had passed without an order to answer or otherwise ask the

Tribe to develop the record below, Mr. Valenzuela filed a Motion for Expedited Review.

(Doc. 11, Aplt. App. at 50). In the Motion, Mr. Valenzuela requested urgent review and

release as he had already served additional time over the statutory maximum, in addition

to the other claims in the Petition. Id.

The Tribe filed a Motion opposing expedited or urgent review, on the grounds that

it was “premature” and the federal court was “entitled to hear all relevant evidence in the

interests of justice.” (Doc. 14, Aplt. App. at 58). The Tribe did not file any relevant

evidence from the record in the tribal trial court. Instead, on January 15, 2011, the warden

and the Tribe filed a Joint Motion to Dismiss; asserting that Mr. Valenzuela failed to

exhaust tribal remedies. (Doc. 15, Aplt. App. at 62).


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The First Set of Findings and Recommendations Entered while Mr. Valenzuela was

Still in Custody Failed to Comprehend the Inapplicability or Futility of Exhaustion in

this Case.

On February 16, 2011, the Magistrate Judge issued its Proposed Findings and

Recommendation on Disposition and recommended Respondent‟s Motion to Dismiss be

granted when holding Mr. Valenzuela failed to exhaust his tribal remedies and that Mr.

Valenzuela did not fit within one of the narrow exceptions to tribal exhaustion. (Doc. 18,

Aplt. App. at 72). On March 3, 2011, Mr. Valenzuela filed objections to the Proposed

Findings and Recommendation on Disposition. (Doc. 20, Aplt. App. at 84). Specifically,

Mr. Valenzuela argued that exhaustion was not required in Indian habeas cases. Id.

Additionally, in his objection, Mr. Valenzuela stated that even if the exhaustion

requirement applied, he had exhausted all tribal remedies available to him through his

Plea Agreement and waiver of any appeals. Id.; see also (Doc. 1-4, Aplt. App. at 25).

Lastly, Mr. Valenzuela‟s objection alleged tribal exhaustion was futile because Mr.

Valenzuela was already near the statutory maximum when he filed his appeal. (Doc. 20,

Aplt. App. at 88). On March 11, 2011, while the Petition was still pending, Mr.

Valenzuela served out the entirety of his 1,260 day sentence and was released from jail in

New Mexico. (Doc. 22, Aplt. App. at 93).

The Second Set of Findings and Recommendations were Entered After the Expiration

of Mr. Valenzuela’s Sentence and Release from the Tribal Court’s Illegal Conviction

and Order.

On July 13, 2011, the Court held a telephonic hearing on the briefs submitted by

the parties. (Doc. 23, Aplt. App. at 96). On September 1, 2011, the Magistrate Judge

entered Amended Proposed Findings and Recommendation on Disposition (APFRD).


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(Doc. 36, Aplt. App. at 151). The Magistrate Judge found that Mr. Valenzuela had failed

to exhaust his tribal remedies and recommended dismissal of the case. (Doc. 36 at 59-60,

Aplt. App. at 209-211). To arrive at the findings and recommendation, the Magistrate

Judge narrowed Mr. Valenzuela‟s claims to only the sentencing claim. (Doc. 1 at 4, Aplt.

App. at 16). Because the Court narrowed the claim to only include the sentencing claim,

the Court found that only vacatur of the sentence was warranted, and since Mr.

Valenzuela had since been released, no other relief was available to the Court and the

case was rendered moot. (Doc. 36 at 60, Aplt. App. 151).

On September 21, 2011, Petitioner Valenzuela timely filed Objections to the

APFRD challenging the dismissal for failure to exhaust and mootness. (Doc. 39, Aplt.

App. at 213). Mr. Valenzuela argued that the exhaustion doctrine applicable to other

habeas cases challenging state and federal convictions did not apply to a federal court

habeas review under 25 U.S.C. § 1303. Id. In addition, the well-established exhaustion

doctrine in Indian law did not apply with equal force in the habeas context where the

individual was seeking review and remedy from the federal court for violations at the

hands of his own or a foreign Indian tribe. (Doc. 39, Aplt. App. at 213).

Mr. Valenzuela argued that (1) he exhausted tribal remedies; (2) that in

challenging his unlawful conviction he was entitled to the presumption of collateral

consequences, and that the Magistrate erred in concluding that the Petition was moot. In

addition because the Magistrate failed to consider the collateral consequences of an

illegal conviction and sentence on the petitioner; (3) the Magistrate incorrectly found that

there was no remedy; and (4) the Magistrate inappropriately narrowed Mr. Valenzuela‟s


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claims in his Petition and incorrectly found that relief was warranted only on the

sentencing claim. Id.

On September 30, 2011, District Court Judge M. Christina Armijo overruled

Petitioner Valenzuela‟s objections and ordered the case be dismissed. (Doc. 40, Aplt.

App. at 227).

SUMMARY OF THE ARGUMENTS

Serious allegations warrant serious review. In this case, the Tohono O‟odham

Nation tribe charged Mr. Valenzuela, an eighteen-year-old tribal member with serious

charges under tribal law. Instead of providing the process that was both warranted based

on the nature of the crimes, Mr. Valenzuela, a tribal member and citizen of the United

States was wrongfully convicted in violation of his rights under ICRA and illegally

sentenced.

Arrested on serious charges under Tohono O‟odham Tribal Law, the Tribe

subjected Mr. Valenzuela to tribal prosecution without any counsel or a waiver of his

rights to secure counsel under the Indian Civil Rights Act. Instead of affording speedy

process, the Tribe housed Mr. Valenzuela in pre-trial detention and waited for almost a

year before it ushered him into an uncounseled plea agreement. After the plea and

stacked sentence of over three years, the Tribe housed him out of state away from any

resources or contacts in the Tribe.

Mr. Valenzuela properly invoked the jurisdiction of federal court in filing the

habeas corpus petition that is the subject of this appeal. Mr. Valenzuela prayed for the

federal court to vacate or otherwise set aside the conviction and sentence in violation of


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the Indian Civil Rights Act and the United State Constitution made applicable by actions

of the Tribe. His release from tribal custody did not satisfy Mr. Valenzuela‟s prayer for

relief nor does it make his petition moot.

Tribal exhaustion is not a requirement of federal habeas corpus law. There is no

Supreme Court decision on the doctrine of exhaustion applicable in the context of Indian

habeas corpus petitions. In addition, any alleged failure to exhaust does not deny a federal

court of jurisdiction over an Indian habeas corpus petition. This Court must examine the

policy in support of tribal authority and compare it with the need to adjudicate the serious

deprivation of rights under the Indian Civil Rights Act and the United States Constitution.

Mr. Valenzuela‟s petition is not moot. Jurisdiction attached in this case when Mr.

Valenzuela timely filed his § 1303 Petition while “in custody.” Jurisdiction is only

defeated in mootness when there is no longer a “case or controversy” for this Court to

decide. Collateral consequences are presumed when a petitioner claims that his

conviction is invalid in violation of the Constitution and laws of the United States. As a

result there is a “case or controversy” for this Court to decide. In cases where inmates are

released from custody before a court can finally decide their claims, the remedies remain

the same as available at the time the inmate timely filed his petition.

It is for these reasons that Mr. Valenzuela respectfully asks this Court to reverse

the district court and find that he is entitled to federal court review. There exists a remedy

in the federal court for the Tribal Court‟s actions in violation of the ICRA – a federal

court may vacate or otherwise set aside an infirm tribal court conviction. In the

alternative, because the district court failed to allow for development of the record, Mr.


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Valenzuela asks this court to remand his Petition to the district court so that he may have

his day in court and have his Petition heard on the merits pursuant to 25 U.S.C. § 1303.

I. MR. VALENZUELA MET THE EXHAUSTION REQUIREMENT AND IS

ENTITLED TO FEDERAL COURT REVIEW OF THE MERITORIOUS

CLAIMS IN HIS PETITION

A. The Exhaustion Requirements of 28 U.S.C. § 2254 and Other Statutes Do

Not Apply on their Face to Mr. Valenzuela’s Petition

There is no statutory exhaustion requirement that applies to the privilege of a Writ

of Habeas Corpus granted to an Indian prisoner pursuant to 25 U.S.C. § 1303. Nor is the

United States Supreme Court doctrine of exhaustion made applicable to other non-habeas

cases, applicable in the context of civil habeas corpus proceedings. Unlike the other

federal habeas statutes,2 there are no statutory requirements under § 1303. The

requirements under § 2254 are based in statute and do not apply on their face to § 1303.

Absent clear congressional intent to the contrary, a statute should be interpreted by its

plain meaning. United States v. Apfelbaum, 445 U.S. 115, 122 (1980).

Specifically, 25 U.S.C. § 1303 provides: “[t]he privilege of the Writ of Habeas

Corpus shall be available to any person, in a court of the United States, to test the legality

of his detention by order of an Indian tribe.” Prior to ICRA, whether the privilege was

available to Indians imprisoned by a tribal court was historically unclear. See Colliflower

v. Garland, 342 F.2d 269 (1965).

In 1968, Congress passed the ICRA, imposing ten enumerated rights on Indian

tribes, and explicitly providing for habeas corpus review of tribal court orders of

2 See 28 U.S.C. SS 2241, 2254, and 2255.


12

detention. Like the federal habeas statutes authorizing the Writ to remedy deprivations of

the U.S. Constitution, 25 U.S.C. § 1303 recognized federal court jurisdiction in a habeas

corpus proceeding to address violations of ICRA by tribes. The Writ of Habeas Corpus

provides the sole remedy for violations of ICRA by tribes. Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 64 (1978). ICRA specifically gives federal court jurisdiction in

these matters and unlike other federal habeas statutes, there are no statutory requirements

or restrictions. Through § 1303, ICRA specifically gives Indian defendants the right of

federal habeas corpus and confers federal jurisdiction over review of detention orders

entered by tribal courts. By enacting ICRA, Congress specifically authorized federal court

review and intervention in tribal court proceedings involving detention of any person.

ICRA has competing dual purposes of protecting individual rights and tribal self-

governance. These two purposes must be balanced and weighed in any ICRA analysis.

See Santa Clara Pueblo, 436 U.S. at 66.

Under § 2254, the requirement to exhaust state remedies is specifically written

into the law.3 ICRA is silent with regard to exhaustion; it does not explicitly require

exhaustion. 25 U.S.C. § 1303; Wounded Knee v. Andera, 416 F.Supp. 1236, 1238

(D.S.D. 1976). As such, since 1303 contains no explicit exhaustion requirement, courts

should not require exhaustion as an absolute bar in ICRA cases, and should not require

Mr. Valenzuela to exhaust tribal remedies in order to proceed with a Writ of Habeas

Corpus.

3 2254( b) (1) An application for a Writ of Habeas Corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that--(A) the

applicant has exhausted the remedies available in the courts of the State.


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B. If Exhaustion is Required Under § 1303, it Should be Analyzed in the

Habeas Context

If the Court finds or creates an exhaustion requirement under § 1303, attention

must be paid to the analysis required under § 1303. As a result, the exhaustion principles

of federal habeas corpus law and review should not apply with the same force or

magnitude under the Indian habeas corpus statute.

While the Tribe and the district court below take great pains to set out the non-

habeas exhaustion requirement, such argument is misplaced. (Doc. 36 at 9, Aplt. App. at

159). The Writ of Habeas Corpus is an extraordinary remedy, and the purpose of the writ

is and was to allow federal review of tribal court proceedings. Habeas corpus is a

remedial writ, and its “mandate is broad with respect to the relief that may be granted.”

Carafas v. LaVallee, 391 U.S. 234, 239 (1968). The Writ of Habeas Corpus is an

“extraordinary remedy, a bulwark against convictions that violate fundamental fairness.”

Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (citing Engle v. Isaac, 456 U.S. 107,

126 (1982)) (internal quotations omitted). The entire purpose of ICRA was to grant the

writ and impose requirements of fundamental fairness on the Indian tribe through a “bill

of rights” provision.

In non-habeas cases, exhaustion exists as a requirement. The tribal exhaustion rule

was created by the federal judiciary as a means for promoting comity between federal

courts and tribal courts. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987). Federal

courts have generally recognized that tribal-court remedies must be fully exhausted by a

petitioner before a federal court can review challenges to his detention. Acosta-Vigil v.


14

Delorme-Gaines, 672 F.Supp.2d 1194 (D.N.M. 2009); Boozer v. Wilder, 381 F.3d 931,

935 (9th

Cir. 2004). A “federal court should not entertain a challenge to the jurisdiction of

a tribal court until after a petitioner has exhausted the remedies available in tribal court.”

Acosta-Vigil, 672 F.Supp.2d at 1196 (citing Azure-Lone Fight v. Cain, 317 F.Supp.2d

1148, 1150-51 (D.N.D. 2004)). Unfortunately, the District Court has relied on the wrong

set of exhaustion examples, and applied non-habeas exhaustion to this habeas case. (Aplt.

App. at 155-56).

The requirement of exhaustion in non-habeas cases should not apply to habeas

cases. The sole federal remedy under ICRA is habeas corpus, and courts must balance the

rights of individuals against the tribes‟ self governance. See Santa Clara Pueblo, 436 U.S.

at 66. The history underlying Congress‟ provision for habeas corpus “reflected a

considered accommodation of the competing goals of preventing injustices perpetrated by

tribal governments, on the one hand, and, on the other, avoiding undue or precipitous

interference in the affairs of the Indian people.” Santa Clara Pueblo, 436 U.S. at 66-67.

(internal citations omitted). Given that habeas corpus is a protection against tribal

injustice for individuals, exhaustion should not be an absolute bar under § 1303.

Exhaustion is a doctrine in place to protect tribes against needless interference with tribal

self-governance. However, Santa Clara indicates that habeas corpus is crucial to

protecting individual rights over the self governance of the tribes. Santa Clara Pueblo,

436 U.S. at 66; see also Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2nd

Cir. 1996) (discussing the history and purpose of Indian habeas corpus under § 1303).

Thus, in balancing the dual purposes of ICRA (individual rights versus tribal self


15

governance), exhaustion should not be absolutely required under habeas cases in light of

the crucial and heavy need to protect individual rights through habeas.

Cases interpreting non-habeas exhaustion as applicable to habeas exhaustion

ignore the remedial and extraordinary nature and context of habeas corpus and are not

reliable authority. See Acosta-Vigil, 672 F.Supp.2d 1194; see also Selam v. Warm

Springs Tribal Correctional Facility, 134 F.3d 948, 954 (9th

Cir. 1998). For example,

Acosta-Vigil relied on the well-established exhaustion analysis supporting tribal

sovereignty in non-habeas Indian law cases to impose the exact same exhaustion

requirement without any analysis under habeas corpus law. Acosta-Vigil, 672 F.Supp 2d

at 1196. There, the court did not take into consideration the gravity that habeas has in

protecting individual rights, nor that it is the only federal remedy available under ICRA.

As such, it is not reliable. Instead, an analysis on exhaustion with regard to habeas must

employ a different analysis than that of non-habeas exhaustion.

As demonstrated below, because Mr. Valenzuela has exhausted all tribal court

remedies, or has met the exception of futility, the Court does not have to reach the

specific question of whether and to what extent exhaustion applies in these cases where

an Indian individual seeks federal review of his conviction by tribal court, as specifically

granted by 25 U.S.C. §1303, based upon violations of the Indian Civil Rights Act.

C. Because his Uncounseled Plea Agreement Waived his Right to Appeal, Mr.

Valenzuela Had No Available Tribal Court Remedies

Contrary to the Tribe‟s position and the Magistrate Judge‟s Findings, Mr.

Valenzuela did not fail to exhaust available tribal court remedies. He had no tribal court


16

remedies. As set out in his habeas petition, Mr. Valenzuela entered into an uncounseled

plea agreement at the tribal court level. (Doc. 1, Aplt. App. at 13). Under that

uncounseled plea agreement, Mr. Valenzuela waived his right to appeal the judgment and

sentence in the Tohono O‟odham Judiciary Court. (“The defendant specifically waives

any right to appeal the judgment and sentence in the Tohono O‟odham Judiciary Court or

any United States Federal Court. . . .”) (Aplt. App. at 25)Clearly, not only was an appeal

to a tribal court not required, this act was specifically waived and unavailable to Mr.

Valenzuela because of the conditions of the uncounseled Plea Agreement.

After being incarcerated for eleven months, Mr. Valenzuela pled guilty in tribal

court. Mr. Valenzuela alleged that there exists no record that he entered a valid waiver of

his right to counsel and the Tribe has failed to produce any such record. Instead, the Tribe

entered a blanket answer without any factual representations or documents from the tribal

trial court record regarding Mr. Valenzuela‟s meritorious claims. (Doc. 17, Aplt. App.

66-70).

Under these circumstances, a tribal petition for habeas relief was not an available

option. First, the lack of defense counsel prevented tribal habeas relief. Because there is

no right to appointed counsel in tribal courts, 25 U.S.C. §1303(6), there is no person

preserving a record in the tribal court below and no one to advise the defendant of the

right to seek post-conviction review for violations. Without defense counsel appointed or

retained to represent him at trial or assist him with post-conviction remedies afterward,

Mr. Valenzuela did not know of the illegality of the tribal court proceedings including the

illegal sentence. In addition, he did not know of the existence of any option to file a tribal


17

court petition for Writ of Habeas Corpus. As reflected by his uncounseled plea

agreement, Mr. Valenzuela waived any post-conviction remedy. Without an attorney, the

Indian defendant is left defenseless and without any knowledge of or access to post-

conviction review of an illegal conviction or sentence. Unfortunately, under the Criminal

Justice Act, federal public defenders are not permitted to appear or practice in tribal

courts, and there is no system of appointment for tribal defendants seeking the civil

remedy of habeas corpus in absence of a federal prosecution. 18 U.S.C. 3006A (2006).

Currently, because of the expiration of his illegal sentence, Mr. Valenzuela remains

precluded from filing a Petition under the tribal law. (Aplt. App. at 78).

D. Petitioner Valenzuela is Not Required to Seek Discretionary Review

The post conviction remedy alleged by the Tribe and adopted by the Magistrate

Judge as the available tribal court remedy is not required under the Tribe‟s own laws and

procedure. As written, the plain language of the Tohono O‟odham Code specifically

provides for discretionary review only. The rule cited by the Tribe provides, “A party

may file with the lower court a petition for Writ of Habeas Corpus which shall be

forwarded to the court of appeals….” (Aplt. App. at 78). Mr. Valenzuela was not required

to file a petition under the Tribe‟s own rules. A petition would not be warranted in this

case where, according to the Tribe‟s own law, appeal is discretionary on the part of the

party requesting the writ.

II. TRIBAL COURT EXHAUSTION WOULD BE FUTILE

Mr. Valenzuela‟s uncounseled Plea Agreement precluded him from appealing any

judgment or sentence in the tribal court case. A tribal habeas petition, even when known


18

to a defendant, is not required under tribal law but rather allowed if the defendant so

chooses. See Tohono O‟odham Rules of App. Procedure 24(a) (Aplt. App. at 78) (“A

party may file with the lower court a petition for a Writ of Habeas Corpus. . . .”)

(emphasis added). In Mr. Valenzuela‟s situation, this tribal remedy was a discretionary

remedy Mr. Valenzuela chose not to exercise. By the time he entered the plea agreement,

Mr. Valenzuela had already served eleven months in prison, and the Tribe‟s one-year

sentencing jurisdiction under 25 U.S.C. 1302(7) was already due to expire. Thus, even if

the tribal habeas petition was an available remedy to Mr. Valenzuela, he was close to

serving the maximum term allowable under ICRA. Today, Mr. Valenzuela‟s sole remedy

for the Tribe‟s imposition of this illegal sentence remains with this Court.

It follows accordingly that Mr. Valenzuela exhausted any and all tribal remedies

available to him. Thus, his Petition for Writ of Habeas Corpus in this Court is proper

pursuant to 25 U.S.C. § 1303. Any further attempts to exhaust tribal remedies would be

futile and result in irreparable damage.

Should this Court find that exhaustion or futility is not met, the proper cure would

have been to stay the federal habeas proceeding, not dismissal. Dismissal to exhaust,

should be rejected as unjust and a perversion of the remedial and immediate nature of the

writ.


19

III. MR. VALENZUELA’S CASE IS NOT MOOT AS THE FEDERAL COURT

HAS JURISDICTION AND HIS PETITION CHALLENGES THE

ILLEGAL TRIBAL COURT CONVICTION

A. Mr. Valenzuela Timely Filed his Petition While in Custody on the Tribal

Court Order Issued in Violation of The Indian Civil Rights Act

It is a well-settled principle of Supreme Court habeas law that “once the federal

jurisdiction has attached in the District Court, it is not defeated by the release of the

petitioner prior to completion of proceedings on such application.” Carafas v. LaVallee,

391 U.S. 234, 238 (1968). In this case, jurisdiction attached upon Mr. Valenzuela‟s

timely filing on November 23, 2010, and naming his “immediate custodian” as a

respondent, as required by general habeas principles. This prevents Mr. Valenzuela‟s

Petition filed pursuant to 25 U.S.C. §1303 challenging an unlawful conviction from being

mooted by completion of his wrongful sentence because jurisdiction had already

attached. Once jurisdiction is properly established, the next question is whether the case

is justiciable, meaning whether there is a case or controversy for which this court can

fashion a remedy or redress. As set forth in Part III. A. below, there is a live case or

controversy, collateral consequences, and an available remedy. Mr. Valenzuela‟s

controversy extends from his illegal conviction as a result of not having an attorney

present during the proceedings. Federal jurisdiction automatically attached when Mr.

Valenzuela timely filed his petition on November 23, 2010 and named Mr. Silversmith as

the person who had custody over him. As a result, Mr. Valenzuela meets the “in custody”

requirement of habeas corpus law.


20

B. A Live Case or Controversy Exists When the Appellant Challenges the

Validity of his Conviction

Given that Mr. Valenzuela has met the “in-custody” requirement and rightfully

named Mr. Silversmith as the “immediate custodian”, the only way his release from

custody causes his Petition to become moot is if the Petition “no longer present[s] a case

or controversy under Article III, § 2, of the Constitution.” Spencer v. Kemma, 523 U.S. 1,

7 (1998). This is not the case here. In fact, because Mr. Valenzuela is challenging his

underlying conviction and sentence, collateral consequences are presumed. Sibron v.

New York, 392 U.S. 40, 55 (1968); Spencer, 523 U.S. at 12; United States v. Meyers,

200 F.3d 715, 718 (10th

Cir. 2000); United States v. Hensel, No. 09-2283, 377 Fed. Appx.

748, 750 (10th

Cir. May 3, 2010) (unpublished).

The inquiry into the existence of collateral consequences begins with the

understanding that mootness is only available when there are no collateral consequences.

Sibron, 392 U.S. at 57 (1968). Mr.Valenzuela challenges the validity of his

conviction and collateral consequences are presumed.

IV. ADDITIONALLY, MR. VALENZUELA SUFFERS DIRECT AND

COLLATERAL CONSEQUENCES AND IS ENTITLED TO HABEAS

REVIEW AND RELIEF ON HIS MERITORIOUS CLAIMS

Although Mr. Valenzuela has been physically released from jail due to his

completion of the unlawful sentence, his Petition remains precluded from being rendered

moot based on the direct and collateral consequences of the unlawful conviction and

detention. If a petitioner, though released from custody, faces sufficient repercussions


21

from his allegedly unlawful punishment, the case is not moot. Carafas, 391 U.S. at 239-

40, (1968).

An incarcerated individual‟s challenge to his conviction always satisfies the case

or controversy requirement because the incarceration constitutes a concrete injury caused

by the conviction and is redressable by the conviction‟s invalidation. Spencer, 523 U.S.at

6 (1998). However, once the sentence has expired, the petitioner must show some

concrete and continuing injury; a “collateral consequence” of the conviction if the suit is

to be maintained. Id. at 2. The court in Spencer presumed that in some instances, a

wrongful conviction has continuing collateral consequences. Id. The petitioner “must

have suffered, or be threatened with, an actual injury traceable to the respondent and

likely to be redressed by a favorable judicial decision.” Id. at 7. Here, Mr. Valenzuela has

suffered an actual injury, namely the loss of 2 years and nearly 6 months of his liberty

than can never be restored to him. That actual injury is directly traced to the Tohono

O‟odham Nation.

An additional collateral consequence of the unlawful sentence is the reality that

any subsequent conviction may be used to impeach testimony that Mr. Valenzuela might

give in a future proceeding, or the possibility that it may be used to enhance a future

sentence. Spencer, 523 U.S.at 10 (1998). It is well established that “the possibility of a

criminal defendant‟s suffering „collateral legal consequences‟ from a sentence already

served” precludes a finding of mootness. Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3

(1977) (per curiam). A criminal case is moot only when it is shown that there is no

possibility that any collateral legal consequences will be imposed on the basis of the


22

challenged conviction. Sibron, 392 U.S. at 57 (1968). There is no showing that Mr.

Valenzuela has no possibility of any collateral legal consequences. Clearly, Mr.

Valenzuela has and continues to suffer from collateral legal consequences. Mr.

Valenzuela‟s continuing consequence is that he has served a sentence that vastly exceeds

the statutory limit imposed by Section 1302(7) of the Indian Civil Rights Act, and that his

request for a review of the illegal sentence continues to linger without final disposition.

The motion to dismiss the case on these grounds deprives Mr. Valenzuela of the

privilege to test the legality of his detention by order of an Indian tribe.

A. Mr. Valenzuela Suffers Unique Federal Collateral Consequences

Unfortunately, prior tribal court convictions are routinely used against Indian

defendants in the federal sentencing scheme. The federal sentencing guidelines provide

for a favored upward departure based upon prior tribal court convictions. U.S. Sentencing

Guidelines Manual § 4A1.2(i); 4A1.3 (2003) (adequacy of criminal history).4 Mr.

Valenzuela‟s prior uncounseled tribal court conviction can also be used as a predicate

offense under 18 U.S.C. §117. See generally United States v. Shavanaux, 647 F.3d 993

(10th Cir. 2011); see also United States v. Cavanaugh, 643 F.3d 592, 594 (8th Cir. 2011).

The uncounseled tribal court conviction provides a collateral consequence in the federal

court system; precluding his Petition from being moot.

4 In 2010, federal judges used criminal history for upward departures in 52.4% of sentencing

cases. U.S. Sentencing Comm'n, Sourcebook of Federal Sentencing Statistics, Table 24 (2010).

While it is unknown how many relate to Indian defendants, Indians are generally subjected to

longer sentences than the general population in federal court. Emily Tredeau, Tribal Control in

Federal Sentencing, 99 Cal. L. Rev. 1409, 1417 (Oct. 2011) (“Once in federal court, Indian

defendants face guideline ranges significantly longer than most state-court sentences for the

same conduct”).


23

B. Mr. Valenzuela Suffers Collateral Consequences in State Proceeding.

Additionally, Mr. Valenzuela‟s uncounseled and unlawful conviction induces

further penalties or disabilities under state laws. See e.g., State v. Spotted Eagle, 71 P.3d

1239, 1245 (Mont. 2003) (holding that prior uncounseled tribal court convictions may be

used in the sentencing proceedings in Montana courts); See also e.g., State v. Stensgar,

No. 14627-8-III, 1996 WL 460262 (Wash. Ct. App. Aug. 13, 1996) (upholding a state

court‟s imposition of an exceptional sentence under state law based on prior convictions,

including a guilty plea to indecent liberties in Colville Tribal Court). Currently, both

Kansas and Oregon allow for prior tribal convictions to be included in an offender's

criminal history during a subsequent state court sentencing. State v. Graves, 150 Ore.

App. 437, 439-440 (Or. Ct. App. 1997);5 Kan. Crim. Code § 21-4711(e) (2007) ("[o]ut-

of-state convictions and juvenile adjudications will be used in classifying the offender's

criminal history”). For a comprehensive chart detailing state use of tribal court

convictions against Indians, see Kevin K. Washburn, A Different Kind of Symmetry, 34

N.M. L. Rev. 263, app. 290-96 (2004). (Aplt. App at. 240).

Mr. Valenzuela anticipates that the Tribe may focus on the fact that he is in state

custody on pending charges. Any state charges are irrelevant to the claim regarding the

Tribe‟s violation of Mr. Valenzuela‟s civil rights during the tribal criminal processes.

Furthermore, any new charges support Mr. Valenzuela‟s above stated position regarding

direct and collateral consequences. As a direct consequence of the unlawful sentence

5 In Oregon, prior convictions assessed for sentencing purposes “include federal, tribal court,

military and foreign convictions.” Graves, 150 Ore. App. at 439-440 (quoting Oregon Sentencing

Guidelines Implementation Manual 57 (1989)).


24

imposed by the Tribe, there remains an increased possibility that Mr. Valenzuela will

face harsher punishment based on the unlawful tribal sentence and that he may be subject

to harsher punishment based on the length of the sentence.

V. A REMEDY EXISTS IN FEDERAL HABEAS CORPUS AS THE

FEDERAL COURT CAN GRANT EFFECTIVE RELIEF BY VACATING

THE WRONGFUL AND UNLAWFUL TRIBAL CONVICTION

General federal habeas statutes do not limit the relief that may be granted to

discharge of the applicant from physical custody. Carafas v. LaVallee, 391 U.S. 234,

2389(1968). Rather, it provides that the court “shall…dispose of the matter as law and

justice require.” Id. Here, law and justice require a ruling in favor of Mr. Valenzuela and

in favor of granting of the writ. In Carafas, the Court stated that “there was no need…for

denying to petitioner his ultimate day in court. . . .” Id. Analogous to that reasoning, a

ruling granting Mr. Valenzuela‟s Petition would allow an opportunity for review and

redress of his meritorious claims.

Mr. Valenzuela has suffered and is continuing to suffer disabilities comparable to

those suffered in Carafas, mainly because of the complexities in the law. On November

23, 2010, the time the habeas petition was filed, Mr. Valenzuela was entitled to an

immediate release. On that date, the one thousand two hundred and sixty (1260) day

sentence was in violation of, and in excess of, the one year statutory limit imposed by the

Indian Civil Rights Act. 25 U.S.C. §1302(7)(a). There has yet to be a resolution of the

case and Mr. Valenzuela is still without adequate relief. Only this Court may review the

unlawful Tribal Court proceeding and grant relief from the unlawful conviction and

sentence.


25

More prejudicial is the fact that Mr. Valenzuela continues to suffer while he has a

meritorious claim of illegal conviction and detention. Furthermore, Carafas also stood for

the proposition that a “petitioner should not be thwarted and required to bear the

consequences of an assuredly unlawful conviction simply because the path has been so

long that he has served his sentence.” Carafas, 391 U.S. at 240. Because the illegal

sentence has now expired, and the Tribe seeks to have a ruling that the Petition is moot,

Mr. Valenzuela will continue to bear the consequences of an unlawful conviction and

sentence. A failure to review the underlying claims has the effect of denying Mr.

Valenzuela‟s opportunity for a determination that his individual rights have been

violated. In deciding whether a case is moot, “[t]he crucial question is whether granting a

present determination of the issues offered…will have some effect in the real world.”

Green v. Haskell County Board Of Com‟rs, 568 F.3d 784, 794 (10th

Cir. 2009) (citing

Kan. Judicial Review v. Stout, 562 F.3d 1240, 1246 (10th

Cir. 2009)). (alteration in

original).

Granting relief on his meritorious claims will have an impact on Mr. Valenzuela.

Although the sentence has expired, Mr. Valenzuela seeks to have the illegal conviction

and sentence vacated and set aside, so as to prevent the illegal conviction and sentence

from being used against him in any subsequent proceedings. This Court must reach the

merits of the petition in this case and offer guidance on the issues, which requires that an

inquiry on the merits of the original petition be made. Postponement of the adjudication

of such issues for years can harm both the prisoner and the prosecuting jurisdiction and

lessens the probability that final disposition of the case will do substantial justice. Peyton


26

v. Rowe, 391 U.S. 54, 62 (1968). Mr. Valenzuela has no other avenue or forum to seek

vindication of the violation of his rights under the Indian Civil Rights Act. To deny him

relief renders habeas review of a Tribal Court conviction extremely limited and useless to

a tribal defendant with limited access to legal resources and legal redress. It undercuts the

purpose of habeas review under ICRA, and suggests that Tribes which violate member‟s

rights can escape review simply because the sentence has expired. It leaves individuals

whom suffer violations of their rights at the hands of a Tribe powerless in a system that in

many aspects is already foreign to Native peoples.

CONCLUSION

For the foregoing reasons, Mr. Valenzuela asks this Court to remand his Petition

to the district court to vacate the conviction or be heard on the merits.

Respectfully submitted, this 24th

Day of January 2012,

/s/ Christine Zuni Cruz

Christine Zuni Cruz

By:

/s/ Barbara Creel

Barbara Creel

Attorneys for Appellant

University of New Mexico Clinical Law Programs

MSC11 6070


Albuquerque, NM 87131-0001

Telephone: (505) 277-5265

Facsimile: (505) 277-2371

[email protected]


27

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

(1) All required privacy redactions have been made per 10th Cir. R.

25.5;

(2) All hard copies submitted to the clerk‟s office are exact copies of the

ECF submissions;

(3) The digital submissions have been scanned for viruses with the most

recent version of a commercial virus scanning program,

Symantec Endpoint Protection, and according to the program are free of

viruses.

Date: January 24, 2012


Attorney for Appellant Valenzuela

/s/ Barbara Creel

Barbara Creel


Southwest Indian Law Clinic

MSC11 6070


Albuquerque, NM, 87131-0001

Telephone: (505) 277-5265

Facsimile: (505) 277-2371

[email protected]


28

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because this brief contains 7,191 words, excluding the parts of the brief exempted

by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and

the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been

prepared in a proportionally spaced typeface using Microsoft Word 2007 in 13

point font, Times New Roman.




/s/ Barbara Creel

Barbara Creel



MSC11 6070



Telephone: (505) 277-5265

Facsimile: (505) 277-2371

[email protected]


29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that January 24, 2012, I electronically filed the foregoing using the

Court‟s CM/ECF system which will send notification of such filing to the following:

Laura Berglan, Attorney for Hecht,

Corrections, Administrator, Tohono O‟odham Nation

Email: [email protected]

Doreen N. McPaul, Attorney for Hecht,

Corrections, Administrator, Tohono O‟odham Nation


Desiree D. Gurule, Attorney for Silversmith,

Warden, McKinley Adult Detention Center


Kevin M. Brown, Attorney for Silversmith,

Warden, McKinley Adult Detention Center





/s/ Barbara Creel

Barbara Creel



MSC11 6070



Telephone: (505) 277-5265

Facsimile: (505) 277-2371

[email protected]


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