Alvarez v. Tracey

Filing 107

ORDER ACCEPTING REPORT AND RECOMMENDATIONS 105 . Alvarez's petition for writ of habeas corpus (Doc. 1) is denied. The Clerk of the Court shall terminate this action. (See document for further details). Signed by Judge David G Campbell on 3/28/12. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,

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No. CV-08-02226-PHX-DGC

Fortino Alvarez,

ORDER

vs.
Randy Tracey, Acting Chief Administrator
for the Gila River Indian Community
Department of Rehabilitation and
Supervision,

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Respondent.

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Petitioner Fortino Alvarez filed a petition for writ of habeas corpus pursuant to the

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Indian Civil Rights Act, 25 U.S.C. ' 1303, and 28 U.S.C. ' 2241. Doc. 1. The Petition

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challenges convictions and sentences that the Gila River Indian Community court

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imposed in four separate criminal cases regarding incidents that took place in 2003.

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Magistrate Judge David K. Duncan filed a Report and Recommendation (“R&R”),

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recommending that the Court deny the petition. Doc. 105 at 12. Alvarez filed objections

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to the R&R. Doc. 106. Alvarez has not requested oral argument. For the reasons that

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follow, the Court will accept the R&R and deny the petition.

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I.

Standard of Review.

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A party may file specific, written objections to an R&R within ten days after being

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served with a copy the R&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. ' 636(b)(1)(C).

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The Court must undertake a de novo review of those portions of the R&R to which

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specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge. See 28 U.S.C. ' 636(b)(1).

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II.

Discussion.

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Alvarez filed nine claims for relief in his original petition. Doc. 1 at 6-11. The

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Court previously dismissed Claim 1. Doc. 95. Alvarez has withdrawn Claims 5 and 9.

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Doc. 106 at 1. Alvarez’s remaining claims are that he was improperly denied his right to

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counsel in violation of §§ 1301(6) and § 1302(8) of the Indian Civil Rights Act (ICRA)

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(Claim 2); that the conviction in one of the criminal cases (CR 543) was entered in

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violation of his confrontation rights under § 1302(6) of ICRA because the court admitted

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the out-of-court testimony of a non-witness (Claim 3); that the Community failed to

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provide him with written witness statements prior to trial, which violated his rights under

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§ 1302(8) of ICRA (Claim 4); that the convictions were entered in violation of his right

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to counsel under § 1302(6) because he did not make a knowing and voluntary waiver of

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his right (Claim 6); that the convictions were entered in violation of his right to

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compulsory process under § 1302(6) of ICRA because he did not make a knowing and

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voluntary waiver of his right (Claim 7); and that the convictions were entered in violation

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of his right to a jury trial under § 1302(10) of ICRA because he did not make a knowing

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and voluntary waiver of his right (Claim 8).

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A.

Claims 2 and 6: Right to Counsel.

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ICRA provides that no Indian tribe exercising powers of self-government shall

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“deny to any person in a criminal proceeding the right . . . at his own expense to have the

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assistance of counsel for his defense.” 25 U.S.C. § 1302(6). Unlike the broader right

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recognized under the Sixth Amendment, there is no federal right to appointed counsel in

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tribal courts. Tom v. Sutton, 533 F.2d 1101 (9th Cir. 1976).

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Alvarez objects to the dismissal of his right to counsel claims because, he argues,

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Judge Duncan based this recommendation solely on the fact that Alvarez was informed of

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and understood his right to counsel at all proceedings. Doc. 105 at 10. Alvarez argues on
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the basis of Chandler v. Fretag, 348 U.S. 3 (1954), that the right to counsel guarantees

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more than the right of a criminal defendant to be informed of his right to counsel, but that

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he must also have “a reasonable opportunity to employ and consult with counsel.”

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Doc. 106 at 6. Alvarez argues that he was not given “a reasonable opportunity to employ

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and consult with counsel” when he expressed a desire to do so at his arraignments, and

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that the court failed to take reasonable steps to give him an opportunity to secure

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representation when he exhibited confusion and a failure to understand the nature of

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subsequent pretrial, trial, and sentencing proceedings. Doc. 104 at 3-6. Alvarez also

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objects that he did not make a knowing and voluntary waiver of his right. Id. at 10.

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The record shows that at Alvarez’s arraignment on the first two charges, the

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Community court judge verified that Alvarez had been informed of his rights and that he

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had no questions about them. Doc. 104-1 at 4:9-12. The judge also asked Alvarez if he

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wanted counsel, to which Alvarez said he was “not sure at this time.” Id. at 4:18-21. The

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judge further informed him that he “may be eligible for counsel through the Four Rivers

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Indian Legal Services,” but that he would otherwise be responsible for obtaining counsel

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at his own expense. Id. at 5:1-23. When the judge asked if Alvarez was ready to enter a

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plea, Alvarez answered “Yes.” Id. at 5:24-6:1. The judge also advised Alvarez that if he

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entered a guilty plea he would waive his rights to counsel and a trial and advised Alvarez

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to enter a not-guilty plea “if you’re not sure what to do today.” Id. at 6:2-24. After

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stating that he wanted to enter a guilty plea and being cautioned by the judge that it

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would be important to receive additional information such as the police report before

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pleading guilty, Alvarez changed his plea to “not guilty.” Id. at 6:14-7:8.

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At Alvarez’s arraignment on the next two charges, the Community court judge

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verified that Alvarez had received copies of the complaint, that he had no questions, and

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that he understood his rights. Doc. 104-2 at 4-5. Alvarez then entered not-guilty pleas on

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the remaining charges. Id. at 6:2-3. When the judge asked,“Do you seek counsel in this

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matter?” Alvarez answered “Nope.” Doc. 104-2 at 6:1-15. The judge further clarified:

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“What I am asking you is if you’re seeking an attorney advocate or counsel to represent
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you. Are you seeking that or will you be seeking that?” Id. at 6:16-18. Alvarez then

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answered, “Yeah, probably counsel.” Id. at 6:19-23. Later, when Alvarez asked about

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the possibility of probation, the judge told him that he could address that at pretrial and

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further advised him “if you seek legal counsel, like, possibly Four Rivers or private

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advocate, they can work on those things for you.” Id. at 9:5-9.

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Based on this record, the Court finds that Judge Duncan’s recommendation to

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dismiss Alvarez’s right to counsel claims was not in error. Alvarez cites no cases

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showing that ICRA requires a tribal court judge to stop the proceedings when, as here, a

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criminal defendant is informed of his right to seek counsel and states that he is “not sure”

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if he will do so or that he will “probably” do so, but otherwise states that he is ready to

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proceed. Neither are the facts in this case similar to those in Chandler, where the

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Supreme Court found that the trial court had not given the defendant adequate

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opportunity to employ and consult with counsel after he made an affirmative request to

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do so. In Chandler, a criminal defendant waived his right to counsel on charges of

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housebreaking and larceny that carried a 3 to 10 year sentence, saying that “an attorney

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could do him no good.” 348 U.S. at 4. When defendant appeared for trial two months

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later, the judge informed him of an additional, habitual criminal accusation that carried a

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mandatory life sentence with no possibility of parole. Id. at 4-5. Defendant promptly

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asked for an extension of time to secure counsel; the court denied the request and

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proceeded with trial. Id. at 5. The Supreme Court held that the defendant had “at the

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earliest possible moment affirmatively sought an opportunity to obtain counsel on the

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habitual criminal accusation,” and concluded that “[b]y denying petitioner any

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opportunity whatever to obtain counsel on the habitual criminal accusation, the trial court

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deprived him of due process of law.” Id. at 10.

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Unlike Chandler, Alvarez did not at any time affirmatively request an opportunity

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to obtain counsel, nor did he ask for an extension or otherwise indicate that he was

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unready to proceed. The judge repeatedly reminded Alvarez of his right to seek counsel

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and the possibility of doing so at no cost through the Four Rivers Indian Legal Services.
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There is no evidence in the record that Alvarez was denied an opportunity to employ or

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consult with counsel after repeatedly being informed that he had the right to do so and

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even being advised of possible services available to him. Neither does the fact that

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Alvarez may have been confused during later proceedings mean that the Community

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court violated his rights to representation where Alvarez appeared unrepresented despite

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being told that he had the right to seek counsel and despite being advised that counsel

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could work with him on issues he could take up at pretrial, such as possible probation.

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The tribal judge even intervened when Alvarez first attempted to plead guilty, stating that

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doing so would cut off his right to counsel and a trial, and cautioning him not to do so if

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he was “not sure.” The fact that Alvarez did not act on his right to seek counsel is not

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cause for finding that the Community court failed to give him a reasonable opportunity to

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secure counsel.

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In United States v. Ant, 882 F.2d 1389, 1394 (9th Cir. 1989), the Ninth Circuit

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discussed the standard for a knowing and voluntary waiver of the Sixth Amendment right

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to counsel, but declined to apply the standard to Ant’s conviction in tribal court because

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there is no corresponding federal right to appointed counsel in tribal court. Id. at 1392.

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The court determined that where Ant indicated in tribal court that he understood his right

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to counsel, the district court’s finding that his guilty plea was valid under ICRA was not

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clearly erroneous, even where Ant claimed that the tribal court judge did not ask him if

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he had an attorney or wished to have one. Id. at 1392. Here, Judge Duncan correctly

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found, and Alvarez does not dispute, that Alvarez was fully informed of his right to

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counsel at all stages, and that he understood his right to counsel under ICRA. The Court

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finds this a sufficient basis to deny Alvarez’s right to counsel claims.

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B.

Claim 3: Confrontation Clause Violation.

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ICRA makes it unlawful for a tribal court to deny criminal defendants the right “to

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be confronted with the witnesses against him.” 25 U.S.C. § 1302. Alvarez claimed that

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the Community court deprived him of this right because one of the minor victims, E.C.,

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did not testify at trial, but the court allowed Community Police Officer Stanford W.
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Benally to testify to E.C.’s out-of-court statements. Doc. 1 at 7-8.

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Alvarez objects to Judge Duncan’s finding that the Community court did not

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violate his rights because it made a good faith effort to secure E.C.’s presence and

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Alvarez waived his right to object. Doc. 106 at 8. Alvarez argues that simply issuing a

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subpoena is not a “good faith effort” and that a waiver, if it occurred, was due to the

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Community court’s infringement of his right to counsel. Id.

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Alvarez’s trial took place in 2003, prior to the Supreme Court’s ruling in Crawford

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v. Washington, 541 U.S. 36 (2004). Ohio v. Roberts, 448 U.S. 56 (1980), overruled by

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Crawford v. Washington, 541 U.S. 36 (2004), therefore sets the proper standard in this

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case. Doc. 106 at 7. Roberts stated that “[i]n the usual case . . . the prosecution must

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either produce, or demonstrate the unavailability of the declarant whose statement it

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wishes to use against the defendant.” 448 U.S. at 65. Roberts stated as a general

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proposition that “‘[t]he lengths to which the prosecution must go to produce a witness . . .

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is a question of reasonableness.’” Id. (quoting California v. Green, 399 U.S. 149, 189,

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n. 22 (1970)). Roberts concluded that “[t]he ultimate question is whether the witness is

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unavailable despite good-faith efforts undertaken prior to trial to locate and present that

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witness.” 448 U.S. at 74.

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Alvarez claims that the prosecution issued a subpoena but never actually served

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E.C., and made no other efforts to secure her presence at trial. Doc. 106 at 7. Alvarez

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argues on the basis of United States v. Williams, 45 F.App. 775, 777 (9th Cir. 2002), that

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simply issuing a subpoena does not constitute a good faith effort to secure a witness’s

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presence. Doc. 106 at 8. See Williams, 45 F. App. at 777 (finding where the prosecution

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served a subpoena to a detained witness prior to release, but did not attempt to notify her

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of changed trial dates or to locate her whereabouts, that the prosecution’s “limited effort”

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was insufficient to establish unavailability at trial.).

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It is not clear from the record that the prosecution made a reasonable effort to

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secure E.C.’s presence at trial. The affidavit of prosecutor Carleton J. Giff states that

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E.C. was subpoenaed to testify but was not personally served, and that she did not appear.
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Doc. 98-2, ¶ 10. Judge Duncan stated that the Presentence Investigation Report indicated

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that both E.C.’s parents said she did not want to testify for fear of getting beat up and that

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the family had been threatened with violence by the Alvarez family. Doc. 9 at 12. It is

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not clear, however, that the prosecution was aware of E.C.’s fears at the time she failed to

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appear for trial. Nor is it clear that a minor’s refusal to testify or fear of doing so is

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grounds for a finding of unavailability where the minor’s whereabouts is known. See,

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e.g., Dres v. Campoy, 784 F.2d 996 (9th Cir. 1986) (showing of unavailability of minor

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witness adequate where reluctant witness fled prior to trial and prosecutor made every

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reasonable effort to locate her); Burns v. Clusen, 798 F.2d 931, 937-43 (7th Cir. 1986)

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(showing of unavailability inadequate where prosecution produced no up-to-date

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evidence that minor witness’s psychological condition could resurge were she forced to

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testify).

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Even if the prosecution failed to meet its burden of showing that E.C. was

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unavailable, however, Alvarez cannot argue that his rights were violated by his inability

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to confront E.C. as a witness. Alvarez does not dispute that when given the opportunity

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to cross-examine Officer Benally about the statements E.C. had made, he affirmed that

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everything Officer Benally testified to was true. Following Officer Benally’s testimony,

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the trial judge informed Alvarez that he had a right to cross-examine Officer Benally and

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even explained to him how to do so. Alvarez responded: “Well, I’m gonna have to say

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that, you know, everything he says is true.” Doc. 105 at 4. The judge asked, “Everything

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he said is true?” Alvarez replied “Yeah.” Id. When the judge then asked whether there

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was anything Alvarez could ask that could “make it better” for him, Alvarez answered

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that there was not and declined to cross-examine the witness. Id. In light of the fact that

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Alvarez admitted the allegations against him regarding E.C., his inability to confront E.C.

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did not prejudice his defense.

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To the extent that Alvarez argues that his failure to object to the use of out-of-

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court statements or to confront any witnesses is a result of the Community court’s

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infringement of his right to counsel, the Court is not persuaded, for the reasons stated
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above, that the tribal court deprived Alvarez of his right to seek counsel under ICRA.

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C.

Claim 4: Due Process Violation.

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Alvarez claimed that the Community violated his due process rights under 25

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U.S.C. § 1302(8) by failing to provide him with written witness statements before trial as

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required by the Gila River Indian Code. Doc. 1 at 8. Judge Duncan recommended

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dismissal of this claim on the ground that compliance with a discovery provision of the

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Community code is not an appropriate basis for federal habeas review and Alvarez’s

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claim does not constitute a Brady violation because it does not involve the production of

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exculpatory evidence. Doc. 106 at 10-11. Alvarez objects that his claim was not based

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on breach of the Community code or Brady, but on infringement of his due process rights

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under 25 U.S.C. § 1302(8). Doc. 106 at 9; see Doc. 104 at 11.

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The Court does not agree that Alvarez has made a valid federal claim under ICRA.

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The Ninth Circuit ruled in Landford v. Day, 110 F.3d 1380 (9th Cir. 1996), that alleged

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errors in the interpretation and application of state law are not grounds for federal habeas

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relief and that a petitioner may not “transform a state-law issue into a federal one merely

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by asserting a violation of due process.” Id. at 1389; see also Middleton v. Cupp, 768

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F.2d 1083, 1085 (9th Cir. 1985) (“[Habeas relief] is not available when a petitioner

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merely alleges that something in the state proceedings was contrary to general notions of

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fairness or violated some federal procedural right unless the Constitution or other federal

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law specifically protects against the alleged unfairness or guarantees the procedural right

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in state courts.”). This principle also applies to habeas actions concerning tribal court

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procedures. See Smith v. Confederated Tribes of the Warm Springs Reservation of

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Oregon, 783 F.2d 1409, 1413 (9th Cir.), cert. denied, 479 U.S. 964, (1986) (finding that

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the district court erred in granting habeas relief where it found the tribal court was not

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proceeding expeditiously). The Ninth Circuit has stated that “[f]ederal courts must avoid

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undue or intrusive interference in reviewing Tribal Court procedures.” Id. at 1412.

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Because the substance of Alvarez’s due process claim relates solely to the alleged breach

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of a procedural requirement under the Gila River Indian Code, the Court agrees with
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Judge Duncan’s recommendation that this claim should be dismissed.

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Claims 7: Right to Compulsory Process.

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Alvarez claimed that he was denied his right to compulsory process for obtaining

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witnesses in his favor under 25 U.S.C. § 1302(6). Doc. 1 at 10. Judge Duncan found that

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Alvarez was informed of his rights in all four cases, including his right to call witnesses,

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but failed to exercise that right, and that such a failure on his part does not constitute a

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violation of his right to compulsory process. Doc. 105 at 2, 11 (citing Osborne v. United

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States, 371 F.2d 913, 926-27, n. 15 (9th Cir. 1967)). Alvarez does not argue that he was

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not informed of his rights. Instead, he argues that the “group arraignment” procedure

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informing him of his rights was “inadequate to ensure that Mr. Alvarez’s waiver of his

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rights was knowing and voluntary.” Doc. 106 at 10.

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Alvarez cites to Braswell v. Wainright, 463 F.2d 1148, 1155 (5th Cir. 1972), as

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showing that a criminal defendant must make a knowing and intelligent waiver of his

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right to compulsory process. Docs. 104 at 13; 106 at 9. But Braswell dealt with a state

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court’s exclusion of a defense witness who had violated the court’s sequestration rule.

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463 F.2d at 1155. The Fifth Circuit held that exclusion of a witness must be balanced

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against a defendant’s right to call witnesses on his own behalf and would be permissible

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only where a defendant had made a knowing and intelligent waiver of that right. Id.

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Braswell does not apply in this case because Alvarez made no attempt to call witnesses in

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his own defense.

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Judge Duncan also found that Alvarez had not alleged that testimony of any absent

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witnesses would have been material and beneficial to his defense, as required for securing

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the right to compulsory process. Doc. 105 at 11. See Cacoperdo v. Demosthenes, 37

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F.3d 504, 509 (9th Cir. 1994) (“There is no showing by Cacoperdo that he was deprived

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of testimony that would have been “ relevant and material [and] vital ” to his defense. . . .

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Because Cacoperdo did not make such a showing, his Sixth Amendment compulsory

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process claim fails.”) (emphasis in original) (internal citation omitted). The Court finds

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that Alvarez’s ICRA compulsory process claim also fails.
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Claim 8: Right to Jury Trial.

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Alvarez claimed that the Community court convicted him in violation of his right

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to a jury trial. Doc. 1 at 10. Alvarez makes the same argument he made with respect to

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his compulsory process claim: that the “group arraignment” procedure informing him of

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his rights was inadequate for purposes of waiver. Id. Alvarez relies on United States v.

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Gonzales-Florez, 418 F.3d 1093 (9th Cir. 2005), in which the Ninth Circuit set forth the

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requirements for informing a defendant of his or her rights to a jury trial in federal district

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court, including that the district court “question the defendant to ascertain whether the

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defendant understands the benefits and burdens of a jury trial and freely chooses to waive

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a jury.” Id. at 1103.

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Alvarez fails to show that the requirements for waiver in federal district court

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apply to tribal court proceedings. ICRA guarantees to “any person accused of an offense

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punishable by imprisonment the right, upon request, to a trial by jury of not less than six

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persons.” 25 U.S.C. § 1302(10). Judge Duncan found that Alvarez was advised of this

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right at each group arraignment, and that “[a]t each individual arraignment, he

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acknowledged that he understood the rights that had been read to him.” Doc. 105 at 11.

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Alvarez does not dispute this finding. Because the record is clear that Alvarez was

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advised of his right to a jury trial, and he has cited no authority to show that a waiver of

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the right in tribal court requires the same formalities as the waiver of the right in federal

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court, the Court will accept Judge Duncan’s rejection of this claim

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IT IS ORDERED:

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1.

Magistrate Judge David K. Duncan’s R&R (Doc. 105) is accepted.

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2.

Alvarez’s petition for writ of habeas corpus (Doc. 1) is denied.

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3.

The Clerk of the Court shall terminate this action.

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Dated this 28th day of March, 2012.

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