UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT · PDF fileUNITED STATES COURT OF APPEALS...

Case No. 11-2212

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ALVIN C. VALENZUELA, Petitioner – Appellant

vs.

STEVE SILVERSMITH Warden, McKinley County Adult Detention Center,

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 Case No. CV 10-1127 MCA-GBW

RESPONSE BRIEF OF RESPONDENT-APPELLEE HECHT

Laura Berglan Assistant Attorney General

Tohono O’odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 (520) 383-3410 laura.berglan@tonation- nsn.gov

Doreen N. McPaul Assistant Attorney General Tohono O’odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 (520) 383-3410 [email protected]

Oral argument not requested.

Appellate Case: 11-2212 Document: 01018800370 Date Filed: 02/27/2012 Page: 1

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

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

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 1

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 2

PROCEDURAL BACKGROUND ............................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 4

ARGUMENT ............................................................................................................. 4

I. THE DISTRICT COURT PROPERLY RULED THAT VALENZUELA

FAILED TO EXHAUST TRIBAL REMEDIES ............................................. 4

A. Standard Of Review And Approach To Exhaustion ..................................... 4

B. Habeas Petitioners Must Exhaust Tribal Remedies ...................................... 5

C. Tribal Remedies Were Available To Petitioner-Appellant ........................... 8

D. Petitioner-Appellant Does Not Qualify For An Exception To Exhaustion 10

II. THE DISTRICT COURT CORRECTLY RULED THAT VALENZUELA’S

PETITION IS MOOT .....................................................................................11

A. No Article III Live Case Or Controversy Exists .........................................12

B. Petitioner-Appellant Suffers No Collateral Consequences .........................13

C. Vacatur Of The Sentence Is The Only Remedy That Would Be Available

To Petitioner-Appellant ...............................................................................17

CONCLUSION ........................................................................................................22

STATEMENT REGARDING ORAL ARGUMENT .............................................22


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TABLE OF AUTHORITIES

CASES

Bank of Okla. v. Muscogee (Creek) Nation,

972 F.2d 1166 (10th Cir. 1992) .............................................................................. 6

Bishop v. Colorado,

12 Fed. Appx. 807 (10th Cir. 2001) ......................................................................10

Bradshaw v. Story,

86 F.3d 164 (10th Cir. 1996) .................................................................................. 4

Burrell v. Armijo,

456 F.3d 1159 (10th Cir. 2006) .............................................................................. 6

Carafas v. LaValle,

391 U.S. 234 (1968) ....................................................................................... 12, 13

Chapoose v. Hodel,

831 F.2d 931 (10th Cir. 1987) ..............................................................................18

Crowe v. Dunlevy, P.C. v. Stidham,

640 F.3d 1140 (10th Cir. 2011) .............................................................................. 6

Evans v. McKay,

869 F.2d 1341 (9th Cir. 1989) ..............................................................................21

Fratis v. Ortiz,

190 F. App’x 686 (10th Cir. 2006) .......................................................................13

Iowa Mutual Ins. Co. v. LaPlante,

480 U.S. 9 (1987) ........................................................................................... 4, 5, 7


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Jeffredo v. Macarro,

599 F.3d 913 (9th Cir. 2010) .................................................................................. 7

Lane v. Williams,

455 U.S. 624 (1982) ....................................................................................... 14, 17

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) ..............................................................................................12

McKinney v. State of Okla., Dept. of Human Servs.,

925 F.2d 363 (10th Cir. 1991) ..............................................................................21

Miranda v. Anchondo,

__ F.3d __, 2012 WL 360767 (9th Cir. February 6, 2012) ..................................20

Natn’l Farmers Union Ins. Co. v. Crow Tribe,

471 U.S. 845 (1985) ................................................................................. 4, 5, 7, 10

Nevada v. Hicks,

533 U.S. 353 (2001) ..............................................................................................18

New Mexico Env’t Dept. v. Foulston,

4 F.3d 887 (10th Cir. 1993) ..................................................................................12

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978); ...............................................................................................18

Shayesteh v. City of South Salt Lake,

217 F.3d 1281 (10th Cir. 2000) ............................................................................19

Sibron v. New York,

392 U.S. 40 (1968) ................................................................................................14


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Smith v. Moffett,

947 F. 2d 442 (10th Cir. 1991) ....................................................................... 5, 6, 7

Spencer v. Kemna,

523 U.S. 1 (1998) ..................................................................................... 14, 16, 17

Talton v. Mayes,

163 U.S. 376 (1896) ..............................................................................................18

Texaco, Inc. v. Zah,

5 F.3d 1374 (10th Cir. 1993) .................................................................................. 6

U.S. v. Meyers,

200 F.3d 715 (10th Cir. 2000) ..............................................................................14

United States v. Cockerham,

237 F.3d 1179 (10th Cir. 2001) .............................................................................. 9

White v. Pueblo of San Juan,

728 F.2d 1307 (10th Cir. 1984) ............................................................................11

Wilcox v. Aleman,

43 F. App’x 210 (10th Cir. 2002) .................................................................. 13, 14

STATUTES

Indian Civil Rights Act

25 U.S.C. § 1301 ...................................................................................................19

25 U.S.C. § 1302(6) ....................................................................................... 19, 20

25 U.S.C. § 1302(7) ..............................................................................................19

25 U.S.C. § 1302(e) ..............................................................................................20

25 U.S.C. § 1303 ............................................................................................ 1, 5, 7

28 U.S.C. § 2254 ........................................................................................................ 7

42 U.S.C. § 1983 ......................................................................................................21


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Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2281 ....... 16, 20

RULES

Ariz. R. Evid. 609 ....................................................................................................16

Fed. R. Civ. P. 58 ....................................................................................................... 1

Fed. R. Evid. 609(a) .................................................................................................16

N.M.R. Evid. 11-609 ................................................................................................16

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. III, § 2, cl. 1 ...................................................................................12

TOHONO O'ODHAM NATION AUTHORITY

6 TOHONO O’ODHAM CODE, Chapter 3, Art. 2, Rule 24 ............................................ 8

CONSTITUTION OF THE TOHONO O’ODHAM NATION, Art. VIII, Sec. 10(c) ................. 8

OTHER AUTHORITIES

Cohen, Handbook of Federal Indian Law (2005)..................................................7, 8

Michael Pinard, Offender Reentry and the Collateral Consequences of Criminal

Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change 585, 586 (2006)

........................................................................................................................ 13, 15


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STATEMENT OF RELATED CASES

There are no prior related appeals in this case.

JURISDICTIONAL STATEMENT

The district court had subject-matter jurisdiction under 25 U.S.C. § 1303

(2006). On September 30, 2011, pursuant to Federal Rule of Civil Procedure 58,

the district court certified the decision under review as a final judgment.

Appellant’s Appendix (“Aplt. App.”) at 237. Petitioner-Appellant timely filed his

notice of appeal on October 28, 2011. Aplt. App. at 238. This Court has

jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether Petitioner-Appellant must exhaust his tribal remedies before

filing a petition for a writ of habeas corpus with the federal district court?

2. Whether Petitioner-Appellant’s Petition has become moot as a result

of his release?

STATEMENT OF THE CASE

This case presents a relatively simple application of well-settled case law to

a petition for a writ of habeas corpus filed pursuant to the Indian Civil Rights Act

(“ICRA”). 25 U.S.C. § 1303 (2006). On November 23, 2010, Petitioner-Appellant

filed a petition for a writ of habeas corpus (“Petition”). Petitioner-Appellant’s

underlying conviction was in the Tohono O'odham Judicial Court. The Tohono


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O’odham Nation (“Nation”) is a federally recognized Indian tribe located in

southern Arizona. Petitioner-Appellant failed to exhaust his tribal remedies prior

to filing with the federal district court. While this action was pending in the

district court, Petitioner-Appellant served the entirety of his sentence and was

unconditionally released. As a result, his Petition is moot. The district court

dismissed Petitioner-Appellant’s Petition on the independent grounds of failure to

exhaust tribal remedies and alternatively, mootness.

STATEMENT OF FACTS

Petitioner-Appellant was arrested on July 27, 2007, within the boundaries of

the Nation. Aplt. App. at 14. Petitioner-Appellant was charged with eight separate

violations of the Nation’s Criminal Code in connection with the deaths of two

individuals. Aplt. App. at 20. On June 24, 2008, Petitioner-Appellant entered into

a plea agreement, wherein he pleaded guilty to one count of Conspiracy, two

counts of Aggravated Assault, and one count of Misuse of a Weapon. Aplt. App.

at 24. Petitioner-Appellant was sentenced to a total term of imprisonment of 1,260

days of incarceration. Aplt. App. at 28. The total term of imprisonment included

sentencing for the individual offenses as follows: (1) Conspiracy 180 days; (2)

Aggravated Assault 360 days; (3) Aggravated Assault 360 days; and (4) Misuse of

a Weapon 360 days. Aplt. App. at 24. Petitioner-Appellant waived his right to

appeal the judgment or sentence in the Tohono O’odham Judicial Court. Aplt.


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App. at 25. Petitioner-Appellant did not file any action in the Tohono O’odham

Judicial Court following his sentence.

PROCEDURAL BACKGROUND

On November 23, 2010, Petitioner-Appellant filed his Petition. Aplt. App.

at 13. On January 5, 2011, Respondents-Appellees Silversmith and Hecht joined

in filing a motion to dismiss the Petition for failure to exhaust tribal remedies.

Aplt. App. at 62. On February 16, 2010, the Magistrate Judge filed Proposed

Findings of Fact and Recommended Disposition (“PFRD”) concerning the

Petition. Aplt. App. at 72. The PFRD recommended that the Petition be dismissed

for failure to exhaust tribal remedies. Aplt. App. at 76. On March 3, 2011,

Petitioner-Appellant filed objections to the PFRD. Aplt. App. at 84. On March 11,

2011, Petitioner-Appellant was released from custody, after having served his full

sentence. Aplt. App. at 93. The Court directed the parties to file briefs regarding

whether the Petition had become moot as a result of Petitioner-Appellant’s release.

Aplt. App. at 97. On September 1, 2011, the Magistrate Judge filed Amended

Proposed Findings and Recommendation on Disposition (“APFRD”). Aplt. App.

at 151. The APFRD recommended dismissal based both on the failure to exhaust

tribal remedies and mootness of the Petition. Aplt. App. at 211. On September 30,

2011, the district court accepted the APFRD and issued an order dismissing the


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Petition. Aplt. App. at 227. On October 28, 2011, Petitioner-Appellant timely

appealed. Aplt. App. at 238.

SUMMARY OF THE ARGUMENT

The district court correctly ruled that Petitioner-Appellant failed to exhaust

his tribal remedies prior to bringing an action in the federal district court.

Dismissal was proper on the basis of comity. The district court also correctly ruled

on the alternative grounds that Petitioner-Appellant’s Petition was moot due to his

unconditional release from custody since Petitioner-Appellant suffered no

collateral consequences as a result of his conviction.

ARGUMENT

I. THE DISTRICT COURT PROPERLY RULED THAT

VALENZUELA FAILED TO EXHAUST TRIBAL REMEDIES

A. Standard Of Review And Approach To Exhaustion

This circuit applies de novo review to a district court’s dismissal of a habeas

petition. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The tribal

exhaustion rule is a judicially created rule, which follows the lead of Congress in

encouraging tribal self-government. Natn’l Farmers Union Ins. Co. v. Crow Tribe,

471 U.S. 845, 857 (1985). Congress has indicated a strong interest in promoting

tribal sovereignty, including the development of tribal courts. Iowa Mutual Ins.

Co. v. LaPlante, 480 U.S. 9, 14-15 (1987). As a result, federal courts have


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acknowledged the need to allow tribal courts to make an initial determination of

tribal jurisdiction over matters arising on Indian reservations. Smith v. Moffett, 947

F. 2d 442, 444 (10th Cir. 1991). “Tribal courts play a vital role in tribal self-

government… A federal court’s exercise of jurisdiction over matters relating to

reservation affairs can … impair the authority of tribal courts.” Iowa Mutual at 14-

15. In order for a party to have exhausted his tribal remedies, it is well settled that

a party must, at least, receive a ruling from the appellate level of the tribal court

system. Iowa Mutual at 16-17. “Until petitioners have exhausted the remedies

available to them in the Tribal Court system, it would be premature for a federal

court to consider any relief.” Natn’l Farmers Union Ins. Co. v. Crow Tribe, 471

U.S. 845, 857 (1985).

Petitioner-Appellant was sentenced by the Tohono O’odham Judicial Court

on June 25, 2008. On November 23, 2010, Petitioner-Appellant filed the instant

action. Petitioner-Appellant did not first file a petition for writ of habeas corpus or

seek to commute his sentence with the Tohono O’odham Court of Appeals and has

thus not exhausted his tribal remedies.

B. Habeas Petitioners Must Exhaust Tribal Remedies

The Indian Civil Rights Act (“ICRA”) authorizes the filing of petitions for a

writ of habeas corpus by any person detained to test the “legality of his detention

by order of an Indian tribe.” 25 U.S.C. § 1303 (2006). Petitioner-Appellant argues


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that the requirement of tribal exhaustion should only apply to non-habeas cases and

should not apply to habeas cases. Petitioner-Appellant ignores Supreme Court

case law, case law from this Circuit, and the purpose underlying the requirement of

tribal exhaustion.

Despite Petitioner-Appellant’s attempt to distinguish habeas corpus

proceedings from non-habeas cases for exhaustion purposes, no such distinction

exists. The Tenth Circuit requires exhaustion of tribal remedies, including in

habeas corpus actions under the ICRA. Smith v. Moffett, 947 F.2d 442, 443 (10th

Cir. 1991); see Texaco, Inc. v. Zah, 5 F.3d 1374, 1378 (10th Cir. 1993) (“[w]hen

the activity at issue arises on the reservation, [exhaustion] policies almost always

dictate that the parties exhaust their tribal remedies before resorting to a federal

forum”); Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). The tribal

exhaustion rule has been interpreted by the Tenth Circuit to provide that, “absent

exceptional circumstances, federal courts typically ‘should abstain from hearing

cases that challenge tribal court jurisdiction until tribal court remedies, including

tribal court review, are exhausted.’” Crowe v. Dunlevy, P.C. v. Stidham, 640 F.3d

1140, 1149 (10th Cir. 2011) (quoting Bank of Okla. v. Muscogee (Creek) Nation,

972 F.2d 1166, 1170 (10th Cir. 1992)) (emphasis added, additional citations

omitted). Even when a federal court has jurisdiction over a claim, if the claim

arises in Indian country, the court is required to “stay its hand” until the party has


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exhausted all available tribal remedies. Cohen, Handbook of Federal Indian Law

at § 7.04 (2005 ed.) (citing Iowa Mut. Ins Co. v. LaPlante, 480 U.S. 9, 16 (1987);

Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857 (1985)).

Therefore, “all federal courts addressing the issue mandate that two prerequisites

be satisfied before they will hear a habeas petition filed under the ICRA: [(1)] The

petitioner must be in custody, and [(2)] the petitioner must first exhaust tribal

remedies.” Id. at § 9.09; § 9.09 n. 280. A court should not hear a petition for writ

of habeas corpus, unless both of these conditions are met. Any expansion of this

jurisdiction must come from Congress. Jeffredo v. Macarro, 599 F.3d 913, 918

(9th Cir. 2010).

Petitioner-Appellant protests that since the requirement to exhaust state

remedies is specified in 28 U.S.C. § 2254, but no such analogous tribal exhaustion

requirement is stated in 25 U.S.C. § 1303, then this Court should not require

exhaustion. Again, this argument is belied by established Tenth Circuit

precedent. Exhaustion of tribal remedies was not established by Congress. Rather,

it is a rule that has been created by the federal judiciary to “promot[e] tribal

sovereignty.” Smith, 947 F.2d at 444.

Finally, the same comity concerns expressed in National Farmers and Iowa

Mutual are present in the instant case. The Nation, like any governmental entity,

has a significant interest in ensuring that criminals within its midst are adequately


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and fairly punished. Tribal exhaustion allows tribes the opportunity to fully

examine the conviction and sentence and to fully develop the record prior to

examination by the federal district court.1 This process not only protects tribes’

sovereignty, but also aids the federal district court in its review by ensuring a fully

developed record.

Petitioner-Appellant was required to exhaust his tribal remedies. Petitioner-

Appellant has failed to account for his failure to pursue the habeas corpus process

that is available in the Tohono O’odham Judicial Court. As discussed below,

Petitioner-Appellant does not meet any of the exceptions for exhaustion and his

Petition was correctly dismissed by the district court.

C. Tribal Remedies Were Available To Petitioner-Appellant

The Tohono O’odham Code specifically provides for the remedy of habeas

corpus. 6 TOHONO O’ODHAM CODE, Chapter 3, Art. 2, Rule 24; CONSTITUTION OF

THE TOHONO O’ODHAM NATION, Art. VIII, Sec. 10(c) (Judiciary shall have power

to issue writs of habeas corpus).2 Aplt. App. at 78-79; 81. Petitioner-Appellant

candidly acknowledges that this remedy was available to him, but that he “chose

1 Petitioner-Appellant raises a number of factual allegations in his Petition, including denial of counsel. Petitioner-Appellant’s Opening Brief at 16. As aptly pointed out by the Magistrate Judge, had Petitioner-Appellant exhausted his tribal remedies, the record with respect to the factual issues, including waiver of counsel, would be in his possession. This fact further supports the tribal exhaustion requirement. Aplt. App. at 186. 2 The Tohono O’odham Code and Constitution are found at www.tolc-nsn.org.


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not to exercise” it. Petitioner-Appellant’s Opening Brief at 18. Despite exercising

his choice not to take advantage of this remedy, Petitioner-Appellant argues that

due to lack of counsel, “a tribal petition for habeas relief was not an available

option.” Petitioner-Appellant’s Opening Brief at 16.

First, Petitioner-Appellant argues that he waived his right to seek habeas

relief via his plea agreement. However, the plea agreement provides only that,

“defendant … waives any right to appeal the judgment and sentence…” Aplt. App.

at 25. A writ of habeas corpus is not an appeal of the judgment or sentence. The

district court correctly found that Petitioner did not waive his right to pursue a

tribal habeas petition. Aplt.. App. at 231, n. 3. The plea agreement entered into

by Petitioner-Appellant did not waive his right to collaterally attack the conviction

or sentence. United States v. Cockerham, 237 F.3d 1179, 1181-83 (10th Cir.

2001).

Second, Petitioner-Appellant argues that due to lack of counsel he was

unaware of his ability to file a petition for writ of habeas corpus in the Tohono

O’odham Judicial Court. However, Petitioner-Appellant does have counsel now.

Yet, no reason is provided why counsel in the instant case could not have filed an

action in the Tohono O’odham Judicial Court prior to filing in the federal district

court. Additionally, as the district court aptly finds, “Petitioner does not have a

right to counsel to advise him on habeas matters and his lack of familiarity with the


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possibility of a tribal habeas petition does not mean that he did not have an

opportunity to challenge the tribal court’s jurisdiction.” Aplt. App. at 6 (emphasis

in original) citing Bishop v. Colorado, 12 Fed. Appx. 807, 809 (10th Cir. 2001).

Indeed, as noted above, Petitioner-Appellant has acknowledged that he had such an

opportunity, and merely chose not to take advantage of it.

Finally, Petitioner-Appellant argues that since habeas review is

discretionary, exhaustion should not be required. This argument ignores the

underpinnings of case law requiring exhaustion, as discussed above. Although the

filing of a petition for writ of habeas corpus in Tohono O’odham Judicial Court

may be discretionary under the Tohono O’odham Rules, because Petitioner-

Appellant chose to seek federal review under the ICRA, that filing became

compulsory as a result of the tribal exhaustion rule as discussed herein.

D. Petitioner-Appellant Does Not Qualify For An Exception To Exhaustion

The Supreme Court has held that exhaustion of tribal remedies is not

required when an “assertion of tribal jurisdiction is motivated by a desire to harass

or is conducted in bad faith, or where exhaustion would be futile because of the

lack of an adequate opportunity to challenge the court’s jurisdiction.” Natn’l

Farmers Union Ins., 471 U.S. at 857 n.21. Barring the presence of an exception to

the exhaustion requirement, Petitioner-Appellant must exhaust his tribal remedies


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before the federal district court may entertain his Petition. Petitioner-Appellant

does not meet any of the recognized exceptions to the tribal exhaustion doctrine.

Petitioner-Appellant argues that the futility exemption applies to his Petition.

Petitioner-Appellant concludes that, based on his circumstances, he has “exhausted

any and all tribal remedies available to him.” Petitioner-Appellant’s Opening Brief

at 18. Unfortunately for Petitioner-Appellant, case law does not support his

position. Petitioner-Appellant merely recites his previous arguments discussed

above as grounds for claiming futility. However, as held in White v. Pueblo of San

Juan, the belief that tribal remedies did not exist “is not really the equivalent of

pursuing the remedy.” 728 F.2d 1307, 1313 (10th Cir. 1984). “[S]peculative

futility is not enough to justify federal jurisdiction. The tribal remedy must be

shown to be nonexistent by an actual attempt before a federal court will have

jurisdiction.” Ibid. In this case, tribal law explicitly provides for a habeas remedy.

Petitioner-Appellant’s contention that a tribal remedy did not exist based on his

circumstances is thus without merit.

II. THE DISTRICT COURT CORRECTLY RULED THAT

VALENZUELA’S PETITION IS MOOT

Petitioner-Appellant’s unconditional release from the Nation’s custody on

March 11, 2011, caused his Petition to be moot because it no longer presented a

case or controversy under Article III of the United States Constitution. U.S.


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CONST. art. III, § 2, cl. 1. “This case-or-controversy requirement subsists through

all stages of federal judicial proceedings, trial and appellate … The parties must

continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v.

Continental Bank Corp., 494 U.S. 472, 477-78 (1990).

A. No Article III Live Case Or Controversy Exists

In order to satisfy the case-or-controversy requirement in the habeas context,

a prisoner “must be ‘in custody’ when the application for habeas corpus is filed.”

Carafas v. LaValle, 391 U.S. 234, 238 (1968). Once the prisoner’s sentence has

expired, however, a petitioner in a habeas case can only avoid mootness upon

unconditional release if he can prove that he suffers concrete collateral

consequences as a result of the conviction. Carafas at 238. Throughout the

litigation, the petitioner “must have suffered, or be threatened with, an actual injury

traceable to the defendant and likely to be redressed by a favorable judicial

decision.” Lewis v. Continental Bank Corp., 494 U.S. at 477. Mootness deprives a

court of jurisdiction. New Mexico Env’t Dept. v. Foulston, 4 F.3d 887, 888 (10th

Cir. 1993), cert. denied, 511 U.S. 1005 (1994). While Petitioner-Appellant was in

custody at the time the Petition was filed, upon unconditional release, he no longer

suffered an “actual injury” or concrete collateral consequences as a result of his

conviction, thus dismissal for mootness was proper.


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B. Petitioner-Appellant Suffers No Collateral Consequences

Collateral consequences “encompass a wide array of sanctions – termed civil

disabilities – that attach to, but are legally separate from the criminal sentence.”

Michael Pinard, Offender Reentry and the Collateral Consequences of Criminal

Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change 585, 586 (2006).

Collateral consequences include the inability to: engage in certain businesses, serve

as an official of a labor union for a specified period of time, vote in elections, or

serve as a juror. Carafas, 391 U.S. at 238.

Petitioner-Appellant argues that “[t]here is no showing that Mr. Valenzuela

has no possibility of any collateral legal consequences.” Petitioner-Appellant’s

Opening Brief at 22 (emphasis in original). In fact, it is Petitioner-Appellant’s

burden to make the showing that he suffers a collateral legal consequence as a

result of his conviction, not Respondents’ burden to prove that there is no

possibility of any collateral legal consequences. Wilcox v. Aleman, 43 F. App’x

210, 212 n.1 (10th Cir. 2002); Fratis v. Ortiz, 190 F. App’x 686, 688 (10th Cir.

2006). Petitioner-Appellant has failed to meet his burden. Petitioner-Appellant

has not and cannot allege that he has suffered any collateral consequences as

interpreted by Carafas.

As the Magistrate Judge correctly points out in the APFRD, Petitioner-

Appellant relies heavily on outdated case law that has been narrowed by


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subsequent Supreme Court decisions. Aplt. App. at 172. Petitioner-Appellant

cites Sibron, for the proposition that collateral consequences are presumed. Sibron

v. New York, 392 U.S. 40, 55 (1968). However, this position ignores the

development of law in this area since the late-1960s. In Lane, the Supreme Court

refused to extend the presumption of collateral consequences to the revocation of

parole. Lane v. Williams, 455 U.S. 624, 632 (1982). And in Spencer, the Court

directly addressed the uncomfortable nature of assuming collateral consequences

while finding a live case-or-controversy under Article III of the U.S. Constitution.

Spencer v. Kemna, 523 U.S. 1, 10-11 (1998). The Court in Spencer affirmed the

holding in Lane and refused to presume collateral consequences in the parole

revocation case. Id. at 14. Moreover, the Tenth Circuit has declared that, “Spencer

is the pivotal case because of the Supreme Court’s pronounced retreat from earlier

cases which had simply presumed the existence of collateral consequences.”

Wilcox v. Aleman, 43 F. App’x at 212 n. 1.

In Meyers, the Tenth Circuit declined to extend the presumption of collateral

consequences to supervised release. U.S. v. Meyers, 200 F.3d 715, 722 (10th Cir.

2000). Meyers also held that potential future impact of revocation of supervised

release on sentencing associated with crimes not yet committed was not sufficient

to overcome mootness. Id. at 722. The progression of cases since the late-1960s

prove that presumption of collateral consequences is no longer the rule.


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Petitioner-Appellant alleges three collateral consequences of his conviction

in an attempt to overcome mootness. First, Petitioner-Appellant alleges that he

suffered the injury of “the loss of 2 years and nearly 6 months of his liberty that

cannot be restored to him.” Petitioner-Appellant’s Opening Brief at 21. As an

initial matter, Petitioner-Appellant’s sentence is clearly a direct consequence of his

behavior, not a collateral consequence. Petitioner-Appellant cites no authority for

his position and no court has found that loss of liberty is a collateral consequence.

Direct consequences “include the length of the jail or prison sentence the defendant

receives [while] collateral consequences encompass a wide array of sanctions –

termed civil disabilities – that attach to, but are legally separate from the criminal

sentence.” Michael Pinard, Offender Reentry and the Collateral Consequences of

Criminal Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change at 586

(2006).

Second, Petitioner-Appellant alleges that this conviction could be used to

impeach his testimony in a speculative future proceeding. Again, Petitioner-

Appellant cites no authority for this argument. Tribal convictions are

misdemeanor convictions since sentences are limited to less than one year of


16

imprisonment per offense.3 Petitioner-Appellant was convicted of four

misdemeanor offenses. Aplt. App. at 24. These misdemeanor convictions do not

“involve dishonesty or false statement,” and so could not be used to impeach future

testimony. Fed. R. Evid. 609(a) (crime can be used to impeach witness, if

probative value outweighs prejudicial effect, if the crime was “punishable by death

or imprisonment in excess of one year under the law which the witness was

convicted.”). Both the New Mexico and Arizona Rules of Evidence provide the

same. N.M.R. Evid. 11-609; Ariz. R. Evid. 609.

Third, Petitioner-Appellant alleges that this conviction could be used to

enhance a future sentence, should he commit another crime in the future. Even if

Petitioner-Appellant’s tribal conviction could be used to enhance his sentence

should he commit another crime in the future, it would not overcome a finding of

mootness. Spencer, 523 U.S. at 15. The Court in Spencer found that the

possibility of sentence enhancement was “contingent upon [the defendants’]

violating the law, being caught and convicted,” and defendants themselves were

“able – and indeed required by law – to prevent such possibility from occurring.”

3 At the time of Petitioner-Appellant’s conviction, ICRA mandated that “[n]o Indian tribe in exercising powers of self-government shall … require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000.” 25 U.S.C. § 1302(7) amended by Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2281.


17

Id. (quoting Lane v. Williams, 455 U.S. at 632 n. 13). Although Petitioner-

Appellant argues that “prior tribal court convictions are routinely used against

Indian defendants in the federal sentencing scheme,” he provides no support for

this alleged fact. Petitioner-Appellant’s Opening Brief at 22. In fact, to the

contrary, Petitioner-Appellant notes in footnote 4, after reciting a percentage for

upward departures in sentencing due to criminal history, that “it is unknown how

many [upward sentencing departures due to criminal histories] relate to Indian

defendants.” Id. Petitioner-Appellant has not proved that he suffers collateral

consequences as a result of his conviction sufficient to avoid a finding of

mootness.

C. Vacatur Of The Sentence Is The Only Remedy That Would Be Available To Petitioner-Appellant

As the district court correctly points out, the maximum relief that Petitioner-

Appellant could hope to achieve even if his Petition was successful is vacatur of

the sentence. Aplt. App. at 234. The collateral consequences that Petitioner-

Appellant complains of, even if accepted as true, flow from the existence of

Petitioner-Appellant’s conviction, not the length of the sentence. Vacatur of the

sentence would not remove the conviction and thus would not impact any of the

claimed collateral consequences. As the district court was no longer able to grant


18

effectual relief on the Petition, it correctly found the Petition to be moot. Aplt.

App. at 235.

Petitioner-Appellant makes four claims in his Petition: (1) denial of counsel;

(2) sentencing in excess of statutory maximum as set out in ICRA; (3) failure to

follow tribal court procedures and appoint counsel under the United States

Constitution; and (4) incarceration at an off-reservation jail is violative of the

United States Constitution and ICRA. Aplt. App. at 15-17. Even if Petitioner-

Appellant were successful on any of these claims, the maximum relief he is

entitled to is vacatur of his sentence, which would not change his alleged collateral

consequences.

As an initial matter, it appears that Petitioner-Appellant does not understand

that Indian nations exercising governmental powers are not bound by federal

constitutional limitations protecting individual rights against state or federal

infringement, except to the extent that Congress legislatively imposes those

standards. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-58 (1978); Talton v.

Mayes, 163 U.S. 376 (1896). “[I]t has been understood for more than a century

that the Bill of Rights and the Fourteenth Amendment do not of their own force

apply to Indian tribes.” Nevada v. Hicks, 533 U.S. 353, 383 (2001) (citation

omitted); see also, Chapoose v. Hodel, 831 F.2d 931, 934 (10th Cir. 1987).

Individual rights for persons subject to tribal authority derive from two sources:


19

tribal bills of rights found in tribal constitutions and codes and federal statutes,

such as the ICRA. 25 U.S.C. § 1301, et seq. Petitioner-Appellant cannot sustain

claims that are based in the U.S Constitution against the Nation.

ICRA provides that a tribal defendant is entitled to counsel “at his own

expense.” 25 U.S.C. § 1302(6) (2006). Petitioner-Appellant has not alleged that

he attempted to retain counsel at his own expense and the Nation prevented him

from doing so. In fact, Petitioner-Appellant only posits that, “there is no record

that [Petitioner] waived his right to counsel.” Aplt. App. at 16. As discussed

above, Petitioner-Appellant can make no claim to counsel based in the U.S.

Constitution. The district court correctly found that this argument has no merit.

Aplt. App. at 182-184. However, even if Petitioner-Appellant could sustain a

claim based on denial of counsel, the maximum relief for such a claim is vacatur of

his sentence. Shayesteh v. City of South Salt Lake, 217 F.3d 1281 (10th Cir. 2000).

Next, Petitioner-Appellant claims that his sentence was in excess of the

statutory minimums in ICRA. The ICRA, at the time of Petitioner-Appellant’s

sentencing, provided that, “[n]o Indian tribe in exercising powers of self-

government shall … require excessive bail, impose excessive fines, inflict cruel

and unusual punishments, and in no event impose for conviction of any one

offense any penalty or punishment greater than imprisonment for a term of one

year and a fine of $5,000.” 25 U.S.C. § 1302(7)(2006) (emphasis added), amended


20

by Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2281. At the

time of Petitioner-Appellant’s sentencing, the phrase “any one offense” was not

defined. However, developments since Petitioner-Appellant’s sentencing have

defined the phrase “any one offense” and clarified that the Nation was acting

within its authority when Petitioner-Appellant was sentenced to 1,260 days. The

Ninth Circuit defined “any one offense” in Miranda as discrete criminal violations.

Miranda v. Anchondo, __ F.3d __, 2012 WL 360767*6 (9th Cir. February 6,

2012). Additionally, Congress has defined “offense” in its amendment to the

ICRA via the Tribal Law and Order Act as “a violation of a criminal law.” 25

U.S.C. § 1302(e) (2011). Petitioner-Appellant was convicted of four distinct

violations of the Nation’s Criminal Code. His resulting sentence is lawful. Again,

however, as the district court correctly finds, even if Petitioner-Appellant was

successful in this claim, the maximum relief that the court could grant would be

vacatur of that portion of his sentence that exceeded one year. Aplt. App. at 200.

Petitioner-Appellant next argues that the Nation failed to follow its own

procedures and failed to appoint counsel, citing the U.S. Constitution. As

discussed above, Petitioner-Appellant is only entitled to counsel at his own

expense, in accordance with ICRA. 25 U.S.C. § 1302(6) (2006). Petitioner-

Appellant alleges no facts which indicate that the Nation failed to follow its own

procedures. With regard to this claim, the district court correctly found that


21

Petitioner-Appellant “has failed to state a claim to relief that is plausible on its

face…” Aplt. App. at 186.

Finally, Petitioner-Appellant claims that his incarceration in an off-

reservation facility violated the ICRA and the U.S. Constitution. As discussed

above, Petitioner-Appellant cannot sustain a claim against the Nation based on the

U.S. Constitution. Additionally, as Respondent Silversmith was acting under color

of tribal law, not state law, an action sounding under 42 U.S.C. § 1983 is also

without merit. McKinney v. State of Okla., Dept. of Human Servs., 925 F.2d 363,

365-66 (10th Cir. 1991) (citing Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir.

1989). The district court correctly found that this claim is meritless. Aplt. App. at

189.

The district court correctly adopted the Magistrate Judge’s APFRD

regarding mootness of the Petition. Even if Petitioner-Appellant was successful on

his claims, the maximum relief the district court could have granted Petitioner-

Appellant is vacatur of his sentence, not his conviction. Vacatur of Petitioner-

Appellant’s sentence would not change the collateral consequences Petitioner-

Appellant would face. For that reason, dismissal of the Petition for mootness

grounds is correct.


22

CONCLUSION

Dismissal of Petitioner-Appellant’s Petition by the district court was correct

and should be upheld by this Court. Two independent and alternative grounds for

dismissal exist. First, dismissal is appropriate for Petitioner-Appellant’s failure to

exhaust tribal remedies. Second, dismissal is appropriate as the Petition is moot.

Respondent-Appellee Hecht asks this Court to uphold the district court’s dismissal

of the Petition.

STATEMENT REGARDING ORAL ARGUMENT

Counsel does not request oral argument. Counsel does not believe that this

Court’s disposition of this case would be aided by oral presentation to this Court.

Respectfully submitted this 27th day of February, 2012.

TOHONO O’ODHAM NATION OFFICE OF ATTORNEY GENERAL

By: s/ Laura Berglan

Laura Berglan Doreen N. McPaul Assistant Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Attorneys for Respondent-Appellee Frank Hecht


CERTIFICATION OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPE FACE REQUIREMENTS, AND TYPE STYLE

REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(b) because this brief contains 4,819 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 the brief has been prepared in a proportionately spaced typeface using a 14-point Times New Roman font.

s/ Laura Berglan

Laura Berglan Tohono O'odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Dated: February 27, 2012


CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that:

1. All required privacy redactions have been made per 10th Cir. R. 25.5;

2. The CM/ECF submission is an exact copy of the hard copy submissions; and

3. The digital submissions have been scanned for viruses with the most recent version of Sophos Security, Version 9.5 and, according to the program are free of viruses as of February 27, 2012.

s/ Laura Berglan

Laura Berglan Tohono O'odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Dated: February 27, 2012


CERTIFICATE OF SERVICE

I hereby certify that on this 27th day February, 2012, I electronically filed the foregoing Response Brief of Respondent-Appellee Hecht with the Clerk of the Court using the CM/ECF system and served seven copies of the Respondent-Appellee’s Brief via Federal Express addressed to: Elizabeth A. Shumaker Clerk of the Court U.S. Court of Appeals, 10th Circuit The Byron White U.S. Courthouse 1832 Stout Street Denver, CO 80257 I further certify that notification of such filing will be sent via the CM/ECF system to the following: Barbara Creel [email protected] Christine Zuni Cruz [email protected] Attorneys for Petitioner-Appellant

Desiree D. Gurule [email protected] Kevin M. Brown [email protected] Attorneys for Respondent-Appellee Silversmith


s/ Laura Berglan

Laura Berglan Tohono O’odham Nation Office of Attorney General P.O. Box 830 Sells, Arizona 85634 Telephone: 520-383-3410 Fax: 520-383-2689 [email protected] Dated: February 27, 2012


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