Toya v. Casamento et al
REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 9/25/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CIV 17-0258 JCH/KBM
ALAN TOLEDO, Pueblo of Jemez Tribal Court Judge,
JOSEPH A. TOYA, Pueblo of Jemez Governor,
WILLIAM WAQUIE, Pueblo of Jemez 1st Lt. Governor, and
JONATHAN ROMERO, Pueblo of Jemez 2nd Lt. Governor,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Petitioner Milton Toya’s First
Amended Petition for Writ of Habeas Corpus for Relief from a Tribal Court Conviction
Pursuant to 25 U.S.C. § 1303 (Doc. 10), filed June 9, 2017. Petitioner asserts that he
was denied the right to counsel and the right to request a trial by jury during the course
of his tribal-court prosecution. Id. at 2. Respondents, on the other hand, contend that
Petitioner has failed to exhaust his tribal remedies, leaving this Court without jurisdiction
to resolve the Petition. Doc. 13.
The Honorable Judith C. Herrera referred this matter to me on August 18, 2017, to
“conduct hearings, if warranted, including evidentiary hearings, and to perform any legal
analysis required to recommend to the Court an ultimate disposition of the case.” Doc.
17. Having reviewed the submissions of the parties and the relevant law, the Court finds
that Petitioner has exhausted his tribal remedies or that resort to them would be futile.
The Court furthermore concludes that there is merit to Petitioner’s contentions, and
therefore recommends that the Petition be granted.
Petitioner is an enrolled member of the Pueblo of Jemez, a federally-recognized
Indian Tribe. Doc. 10 at 1. On January 25, 2017, Officer Jordan Shendo of the Jemez
Pueblo Police Department allegedly discovered Petitioner passed out in the driver’s
seat of a pick-up truck within the exterior boundaries of the Jemez Indian Reservation.
Doc. 13-1 at 2. The truck was running. Id. Based on these events Petitioner was
charged with four crimes: aggravated driving under the influence, liquor violation, driving
on a revoked or suspended license, and open container. Doc. 13-1 at 1.
Petitioner was arraigned on January 27, 2017, before the Governor and
Lieutenant Governors of the Pueblo. See Doc. 13-1 at 3; Doc. 14 (Notice of Lodging –
Exhibit 3). At the conclusion of his arraignment, Petitioner pled guilty to all of the
charges and signed a document so stating. Doc. 13-1 at 4. This document
acknowledged that Petitioner was advised of the rights “as afforded to all defendants
appearing before [Tribal] Court.” Id. These rights are stated under Rule 3 of the “Pueblo
of Jemez Rules of Criminal Procedure.” As written, there is no mention of the right to a
jury trial or an attorney in Rule 3. However, Petitioner was informed that he had a right
to counsel at the arraignment. Doc. 14 (Exhibit 3).1
Petitioner appeared for sentencing before the Honorable Alan Toledo, Tribal
Court Judge, on February 8, 2017. Doc. 13-1 at 6. Second Lieutenant Governor
Jonathan Romero was present at the hearing. Id. Judge Toledo explained to Petitioner
the fines and jail sentences he had the authority to impose, and asked if there were any
It should be noted that Jemez Rule of Criminal Procedure 3.8 purports to confer upon
defendants “[a]ll other rights and protections which have been conferred upon the defendant by
the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et. seq.” However, the rights conferred by
ICRA were not read to Petitioner at his arraignment.
recommendations made as to sentencing at the arraignment. Doc. 14 (Exhibit 5).
Petitioner then asked to change his plea to not guilty and proceed to a jury trial. Id.
Petitioner also asked for an attorney. Id. Judge Toledo advised Petitioner that he should
have asked for an attorney and a trial before he pled guilty, and he denied Petitioner’s
request to change his plea. Id.
Judge Toledo told Petitioner that if he was unhappy with the decision, he could
appeal to the Governor’s office. Id. Judge Toledo explained that “because [Petitioner
had] already entered a guilty plea, all [he] can do is ask for reconsideration” or appeal
the denial of his oral request to change his plea. Id. Judge Toledo explained that when
there is an appeal, he “sends it to the governor’s office, and if they want to hear it, or
they can deny it; if it’s denied then my decision stands.” Id. Judge Toledo went on, “but
if they want to consider his appeal, then he can send it to the council.” Id. The Second
Lieutenant Governor then explained this process to Petitioner in Towa.2 Id.
Judge Toledo sentenced Petitioner to 180 days incarceration for the DUI and 90
days incarceration for the liquor violation, for a total of 270 days confinement. Id. Judge
Toledo added, “But you can appeal my decision.” Id.
Petitioner inquired about treatment in lieu of jail time. Id. Judge Toledo told him
that it would be up to Behavioral Health and the probation office, which would give
Petitioner an assessment. Id. Judge Toledo admitted that he did not know how this
process worked. Id. Judge Toledo then remanded Petitioner back to custody to serve
his sentence. Id. Judge Toledo also imposed fines in the amount of $500 for the DUI,
and $100 each for the liquor violation, revoked license and open container charges, for
Towa is the traditional, unwritten, language of the Pueblo. See Jemez Towa Language
Program, A Community Effort, .
a total of $800. Id. Judge Toledo reminded Petitioner that some of his jail time could be
suspended for treatment, but indicated that Petitioner would remain incarcerated during
the pendency of any appeal. Id. Petitioner stated, “my decision is treatment.” Id.
On May 2, 2017, Petitioner filed a pro se Motion to Reconsider Sentence
wherein he apologized and asked to be placed on probation. Doc. 13-1 at 7. Judge
Toledo held a hearing on Petitioner’s motion on May 18, 2017. Doc. 13-1 at 8; Doc. 14
(Exhibit 8). At the hearing Judge Toledo suspended the remainder of Petitioner’s
sentence and placed him on supervised probation. Id.; see Doc. 13-1 at 9 (Release
Meanwhile, Petitioner filed this Petition under 25 U.S.C. § 1303 of the Indian Civil
Rights Act (“ICRA”) on February 23, 2017. Doc. 1. His Amended Petition was filed on
June 9, 2017, Doc. 10, and this Court ordered Respondents to answer on June 22,
2017. See Doc. 11. The Court’s Order stated that “Respondents’ answer shall advise,
but is not limited to, whether the Petition[er] has exhausted his tribal court remedies as
to the issues raised in the federal petition.” Id. at 2. Respondents explain that their
Answer is “limited to the Court’s request” insofar as it only addresses exhaustion. Doc.
13 at 5, n.1. However, the Court finds that it can resolve the Petition on the merits, and
so addresses them. To the extent that Respondents may seek to supplement their
argument as to the merits of Petitioner’s claims they may do so by objecting to these
findings, as set forth below.
Pursuant to 25 U.S.C. § 1303, “[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.” Id.; see Santa Clara Pueblo v. Martinez, 436 U.S.
49, 71 (1978). “Proceedings in compliance with ICRA, Congress determined, and we
agree, sufficiently ensure the reliability of tribal-court convictions.” United States v.
Bryant, 136 S. Ct. 1954, 1966 (2016). Petitioner contends that his rights to counsel and
a jury trial under ICRA were violated in this case. See Doc. 10 at 2. The Court agrees.
Before turning to the merits of Petitioner’s claims, the Court must first address
exhaustion, as “[w]hen presented with a petition for habeas relief pursuant to § 1303,
the federal court must, in the first instance, determine whether the petitioner has
exhausted his tribal remedies.” Steward v. Mescalero Apache Tribal Court, CIV 15-1178
JB/SCY, 2016 WL 546840 at *2 (D.N.M. 2016) (citing Dry v. CFR Court of Indian
Offenses for the Choctaw Nation, 168 F.3d 1207, 1209 (10th Cir. 1999)). “Under the
tribal exhaustion rule, until petitioners have exhausted the remedies available to them in
the tribal court system, it is premature for a federal court to consider any relief.”
Valenzuela v. Silversmith, 699 F.3d 1199, 1207 (10th Cir. 2012) (alterations and quoted
authority omitted). “In order to satisfy the exhaustion requirement, a criminal defendant
must pursue a direct appeal or show that such an appeal would have been futile.”
Alvarez v. Lopez, 835 F.3d 1024, 1027 (9th Cir. 2016). “[T]he aggrieved party must
have actually sought a tribal remedy, not merely have alleged its futility.” White v.
Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984).
However, “exhaustion of tribal court claims is not an inflexible requirement.”
Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 953 (9th Cir. 1998).
[a] balancing process is evident; that is weighing the need to preserve the
cultural identity of the tribe by strengthening the authority of the tribal
courts, against the need to immediately adjudicate alleged deprivations of
Necklace v. Tribal Court of Three Affiliated Tribes of Fort Berthold Reservation, 554
F.2d 845, 846 (8th Cir. 1977) (quoted authority omitted); accord Selam, 134 F.3d at
953. Accordingly, the tribal exhaustion doctrine is subject to a narrow set of exceptions,
one of which is showing that requiring resort to tribal remedies would be futile. Steward,
2016 WL 546840 at *2 (citing Nat'l Farmers Union Ins. Companies v. Crow Tribe of
Indians, 471 U.S. 845, 857 n.21 (1985)); see also Valenzuela, 699 F.3d at 1207. Courts
have held that where there are informal remedies available to a petitioner, but none that
are formal, the petitioner is not required to exhaust his tribal remedies. See Necklace,
554 F.2d at 846 (holding that in the absence of formal habeas procedures, the petitioner
was not required to exhaust informal tribal remedies); see also Wounded Knee v.
Andera, 416 F. Supp. 1236, 1239 (D.S.D. 1976) (“[i]f a tribal remedy in theory is nonexistent in fact or at best inadequate, it might not need to be exhausted.”) (citing
Schantz v. White Lightning, 502 F.2d 67, 70 n.6 (8th Cir. 1974)).
Petitioner argues that he has exhausted his tribal remedies because “neither the
Jemez Tribal court nor the Jemez Tribal Code actually provide for an appellate process
or remedy or an appellate court. Thus, a trial before the Jemez Tribal Court is the final
remedy.” See Doc. 10 at 2. Respondents counter that there were several tribal
remedies available to Petitioner that he failed to invoke; specifically, Respondents point
to the appeal and motion for reconsideration processes explained to Petitioner by Judge
Toledo at sentencing. See Doc. 13 at 5-8. Respondents further proffer the affidavit of
Judge Toledo, wherein he avers that “[i]f a post-trial motion or a habeas corpus petition
is filed with the Jemez Tribal court seeking relief based on alleged violations of the
ICRA, I would hear and decide any such motion as the presiding judge.” Doc. 13-1 at
The problem for Respondents is that the remedies they speak of “are available in
theory, but not in fact.” See Wounded Knee, 416 F. Supp. at 1239. Respondents point
to “custom and tradition” and contend that Petitioner’s avenue for direct appeal was
clear, as “it is the Governor and Tribal Council that make the final decisions.” Doc. 13 at
7. Respondents then point to Title I, Section 1-2-2, ¶ 2 of the Tribal Code and quote it
for the proposition that “the Tribal Council, ‘has jurisdiction to hear controversies
between members, if a Tribal Council Court hearing is requested in accordance with
traditional and customary practice or procedure.’” Id. (quoting Doc. 13-1 at 13).
However, Respondents misquote this portion of the Code, which in fact states that the
Tribal Council Court “may have jurisdiction to hear controversies between members.”
Doc. 13-1 at 13 (emphasis added).
Moreover, Respondents ignore Title I, Section 1-2-1 of the Code which explains
that the Tribal Court is “responsible to hear all cases, civil and criminal, that occur or
arise within the jurisdiction of the Pueblo of Jemez,” and which took Petitioner’s Plea
and sentenced him. See id.; see also Doc. 13-1 at 14 (Affidavit of Judge Toledo). Most
importantly, Respondents ignore the provision of the Code that states: “[t]he decisions
of the Tribal Court are final and shall not be appealed to the Tribal Council Court.”
Doc. 13-1 at 13. (emphasis added). In other words, the appellate process described by
Respondents appears to be illusory at best, as it is unsupported by the Code itself.
It is made even more clear that Petitioner has no recourse in appealing to the
Tribal Council or in requesting post-judgment relief from his criminal proceedings when
examining Title II of the Code, the Pueblo of Jemez Rules of Criminal Procedure. The
Rules provide, in pertinent part:
NEW TRIAL (RESERVED)
RIGHT OF APPEAL; HOW TAKEN (RESERVED)
STAY OF JUDGMENT AND RELIEF PENDING REVIEW
As other Judges in this District have observed, “[t]he Jemez Tribal Code contains no
additional provisions, of any kind, for post-conviction relief.” Fragua v. Elwell, 16cv1404
RB/WPL, Doc. 12 (D.N.M. May 8, 2017) (Lynch, M.J.); Fragua v. Casamento, 16cv1405
RB/LF, Doc. 18 (D.N.M. May 12, 2017) (Fashing, M.J.). The Court has independently
examined Titles I (General Provisions), II (Rules of Criminal Procedure), III (Criminal
Code) and XV (Rules of Civil Procedure) of the Tribal Code, and nowhere is there
described the appellate process or habeas proceedings of which Respondents contend
Petitioner should have availed himself. Thus, Respondents’ reliance on Valenzuela is
unavailing. Compare 699 F.3d at 1207 (cited by Respondents for the proposition that
“ignorance of the law is not a valid excuse for failing to satisfy procedural
requirements.”). Therefore, as have other judges in this district, I recommend that the
presiding judge determine that “[b]ecause the Jemez Tribal Code does not provide any
avenue for seeking post-conviction relief, any attempt at pursuing post-conviction relief
would have been futile.” See Casamento, 16cv1405 RB/LF, Doc. 18 at 4 (citing Johnson
v. Gila River Indian Community, 174 F.3d 1032, 1036 (9th Cir. 1999); Krempel v. Prairie
Island Indian Community, 125 F.3d 621, 623 (8th Cir. 1997)).
B) Right to Counsel
Under the ICRA, “[n]o Indian tribe in exercising powers of self-government shall
. . . deny to any person in a criminal proceeding the right . . . at his own expense to have
the assistance of counsel for his defense.” 25 U.S.C. § 1302(a)(6). “The right to counsel
under ICRA is not coextensive with the Sixth Amendment right.” Bryant, 136 S. Ct. at
1962. Namely, “[i]f the sentence imposed is no greater than one year . . . the tribal court
must allow a defendant only the opportunity to obtain counsel ‘at his own expense.’” Id.
(quoting Section 1302(a)(6)). As noted above, Petitioner was informed of this right at his
arraignment. See Doc. 14 (Exhibit 3). However, Petitioner contends that “neither the
Jemez Tribal Court nor the Jemez Tribal Code actually allow or provide for State
licensed attorneys to represent defendants before it. . . .” Doc. 10 at 2.
It appears that Petitioner is correct. Title I, Section 1-4-2 of the Jemez Tribal
Code states that “Professional Attorneys shall not represent parties before the Tribal
Court unless otherwise permitted by the Tribal Council.” Thus, while Petitioner was
informed of his “right” to counsel, that right was merely illusory.
As the Supreme Court recently discussed in Weaver v. Massachusetts, 137 S.
Ct. 1899, 1908 (2017), both the right to select one’s own attorney and the denial of an
attorney to an indigent defendant are errors that are structural in nature, meaning that
“the effects of the error are simply too hard to measure” or “the error always results in
fundamental unfairness.” Id. (citing United States v. Gonzalez–Lopez, 548 U.S. 140,
149 (2006); Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963)). The Court finds that a
similar rationale applies in this case, where Petitioner was denied the opportunity to
obtain counsel at his own expense as required by ICRA. Therefore, I recommend that
Petitioner’s convictions be reversed on this ground.
C) Right to a Jury Trial
Under the ICRA, “[n]o Indian tribe in exercising powers of self-government shall
. . . deny to any person accused of an offense punishable by imprisonment the right,
upon request, to a trial by jury.” 25 U.S.C. § 1302(a)(10). Petitioner asserts that
“[n]either the Jemez Tribal Court nor the Jemez Tribal Code actually allow or provide for
a right to a trial by jury. The right is in the books but it is reserved. It is not a present,
existing right.” Doc. 10 at 4. Moreover, Petitioner avers that he “was never advised of
his right to trial by jury or his right to request one by the governors at his arraignment.”
Id. at 5. Pointing to Alvarez, Petitioner correctly asserts that under this set of facts his
Petition must be granted. Id.
In Alvarez, the Ninth Circuit stated that a tribal defendant’s “right to ‘fair
treatment’ includes the right to know that he would forfeit his right to a jury unless he
affirmatively requested one,” Alvarez, 835 F.3d at 1029, and that a Tribe “must inform
defendants of the nature of their rights, including what must be done to invoke them.” Id.
Concluding that the Tribe had failed to do so by providing the defendant a “Defendant’s
Rights” form which said only “you have the right to a jury trial” but “didn’t explain what
Alvarez needed to do in order to invoke that right,” id. at 1026, the court held “that the
Tribe denied Alvarez his right under ICRA to be tried by a jury.” Id. at 1030. And,
“[b]ecause denial of the right to a jury trial is a structural error,” the court reversed his
Here, the Tribe failed to inform Petitioner of his right to a trial by jury at his
request at his arraignment. And, when he requested one, the same was denied by
Judge Toledo, who explained that Petitioner’s only recourse was an uncertain and
unestablished appellate process. Petitioner, as an unrepresented defendant, cannot be
“expected to understand more about his rights than [the Tribal Court tells him].” Id. at
1029. Thus, because Petitioner was not informed of his right to trial by a jury, he could
not be expected to request one. Moreover, even if Petitioner had requested a trial by
jury, the Jemez Tribal Code has no mechanism for providing a jury trial. See Rule 16 of
Pueblo of Jemez Rules of Criminal Procedure (“TRIAL BY JURY (RESERVED)”). Thus,
I recommend that the Court conclude that the Pueblo of Jemez denied Petitioner his
right under ICRA to request a trial by jury and to reverse his conviction on this
alternative ground. See Alvarez, 835 F.3d at 1030 (citing Sullivan v. Louisiana, 508 U.S.
275, 281–82 (1993)); see also Weaver, 137 S. Ct. at 1907 (discussing structural error).
The Court finds that Petitioner either exhausted his available Tribal remedies or
that resort to them would be futile. The Court furthermore finds that Petitioner was
denied his rights to obtain counsel at his expense and to a jury trial as required by
IT IS HEREBY RECOMMENDED that the Court grant Petitioner’s First Amended
Petition for Writ of Habeas Corpus for Relief from a Tribal Court Conviction Pursuant to
25 U.S.C. § 1303, and reverse Petitioner’s conviction.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.
UNITED STATES CHIEF MAGISTRATE JUDGE
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