Cheykaychi v. Geisen et al
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales transferring case to the United States District Court for the District of Colorado. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TODD GEISEN, Warden/Captain, Chief
Ignacio Justice Center Adult Detention, and
KEWA PUEBLO, formerly known as Santa
MEMORANDUM OPINION AND ORDER OF TRANSFER
This matter is before the Court on Petitioner Harrison Cheykaychi’s response to the
Court’s May 9, 2017 Order Dismissing Kewa Pueblo and Directing Petitioner to Show Cause.
[Doc. 9] In it its order, the Court dismissed the Kewa Pueblo as a respondent in this habeas
corpus action, because “[a]n application for a writ of habeas corpus is never viewed as a suit
against the sovereign,” and “§ 1303 does not signal congressional abrogation of tribal sovereign
immunity, even in habeas cases.” [Doc. 4, quoting Poodry v. Tonawanda Band of Seneca
Indians, 85 F.3d 874, 899 (2d Cir. 1996)). The Court ordered Petitioner to show cause why this
case should not be transferred to the United States District Court for the District of Colorado
pursuant to Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), since Petitioner’s habeas petition
challenges his present physical confinement in Colorado. In response, Petitioner contends that
Rumsfeld is distinguishable because “Indian habeas petitioners under 25 U.S.C. § 1303 are not the
core habeas petitioners referred to in Rumsfeld.” [Doc. 9 at 3] The Court disagrees and,
therefore, this case will be transferred to the United States District Court for the District of
The Indian Civil Rights Act (ICRA), 25 U.S.C. § 1303, provides that “[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.” 25 U.S.C. § 1303. Section 1303 was not
intended “to enact a unique variety of habeas review,” rather it “merely identifies tribal
authority—as opposed to state or federal authority—as the source of the conduct allegedly taken
in violation of federal law or the Constitution.” Poodry v. Tonawanda Band of Seneca Indians,
85 F.3d 874, 899 (2d Cir. 1996). The United States Court of Appeals for the Tenth Circuit has
construed § 1303 consistently with other federal habeas statutes, holding that “the ‘detention’
language” in § 1303 is “analogous to the ‘in custody’ requirement contained in 28 U.S.C. § 2241,”
Dry v. CFR Court of Indian Offenses for Choctaw Nation, 168 F.3d 1207, 1208 n.1 (10th Cir.
1999), and that “§ 1303 petitioner must exhaust tribal court remedies,” “[d]espite § 1303’s lack of
an express exhaustion requirement,” Valenzuela v. Silversmith, 699 F.3d 1199, 1206 (10th Cir.
2012). Thus, the Court concludes that § 1303 has no “broader reach than cognate statutory
provisions governing collateral review of state and federal action.” Poodry, 85 F.3d at 879-80.
Nothing in section 1303 identifies the proper respondent or respondents in a habeas corpus
action challenging a petitioner’s detention by order of an Indian tribe. However, this Court is not
writing on a blank slate. The Rules Governing Section 2254 Cases In The United States District
Courts, which are applicable to habeas petitions filed under 25 U.S.C. § 1303, provide that if a
petitioner currently is in custody pursuant to a court judgment, then the proper respondent is the
officer who has custody of the petitioner. See Rule 1(b) (“The district courts may apply any or all
of these rules to a habeas corpus petition not covered by Rule 1(a).”); Rule 2(a) (“If the petitioner
is currently in custody under a state-court judgment, the petition must name as a respondent the
state officer who has custody”). This is consistent with the “long standing practice . . . in habeas
challenges to present physical confinement—‘core challenges’—[that] the default rule is that the
proper respondent is the warden of the facility where the prisoner is being held, . . . [rather] than
some other remote supervisory official.” Rumsfeld, 542 U.S. at 435 (2004). Although Petitioner
is in tribal custody, rather than federal or state custody, his challenge to his present physical
confinement is “not unique in any way that would provide arguable basis for a departure from the
immediate custodian rule.” Id. at 442.
To support his claim to the contrary, Petitioner relies on Poodry, in which the United States
Court of Appeals for the Second Circuit held that “petitions for writs of habeas corpus are properly
viewed as proceeding against tribal officials allegedly acting in violation of federal law.”
Poodry, 85 F.3d at 880 (emphasis in original); see also id. at 899 (holding that the tribal officials
properly had been named as respondents). Poodry is distinguishable from the present case
because in Poodry the petitioners did not challenge their present physical confinement, but rather
permanent orders of banishment entered by tribal officials. As the United States Supreme Court
held in Rumsfeld, the fact that “our understanding of custody has broadened to include restraints
short of physical confinement does nothing to undermine the rationale or statutory foundation of .
. . [the] immediate custodian rule where physical custody is at issue.” Rumsfeld, 542 U.S. at 437
(emphasis in original). When a petitioner challenges his present physical custody, the immediate
custodian rule “has consistently been applied in this core habeas context within the United States.”
Id. Therefore, the Court concludes that the proper respondent in the present case is Petitioner’s
immediate physical custodian, Respondent Geisen. See Santa Clara Pueblo v. Martinez, 436
U.S. 49, 59 (1978) (noting that the respondent in a habeas corpus action under § 1303 “is the
individual custodian of the prisoner”); Chipps v. Ogala Sioux Tribal Court, No. CIV
10-5028-JLV, 2010 WL 1999458, at* 8 n.5 (S.D. May 18, 2010) (noting that “the proper
respondent in a § 1303 action is the individual custodian of the prisoner”) (unpublished).
Petitioner contends that Respondent Geisen is not the proper respondent because he “lacks
the authority to afford all the relief requested by the Petitioner, who is being held upon the order of
a separate sovereign—the Indian Tribe.” [Doc. 9 at 2] In his habeas petition, Petitioner seeks
the following relief:
1) Finding that the Conviction dated September 19, 2016, is
invalid and in violation of the Indian Civil Rights Act;
2) Issue the Writ of Habeas Corpus commanding Respondents to
release Mr. Cheykaychi from their custody immediately;
3) In the alternative, Order an expedited evidentiary hearing to
inquire as to the legality of the detention and;
4) Grant any other further relief that this Court deems just and
[Doc. 1 at 14] Respondent is the Petitioner’s immediate physical custodian and, therefore, he has
the authority to release Petitioner from custody immediately if the Court finds that Petitioner’s
tribal court conviction violates the ICRA and that issuance of the writ is warranted. See Rumsfeld,
542 U.S. at 435 (noting that the immediate custodian rule “contemplate[s] a proceeding against
some person who has the immediate custody of the party detained, with the power to produce the
body of such party before the court or judge, that he may be liberated if no sufficient reason is
shown to the contrary”) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885). Therefore, the
Court concludes that Respondent Geisen is able to afford Petitioner all of the relief that he seeks.
The Court recognizes that United States District Court Judge Herrera recently arrived at the
opposite conclusion in Toya v. Casamento, 17-CV-00258-JCH-KBM, relying on Poodry to hold
that “where the petition collaterally attacks the petitioner’s tribal conviction and sentence, rather
than the manner in which the detention is being carried out . . . the proper respondent is not
necessarily the person with immediate physical custody but, instead, the official with authority to
modify the tribal conviction or sentence.” Toya v. Casamento, 17-CV-00258-JCH-KBM, Doc. 9
at 3 (D.N.M. May 25, 2017) (citing Poodry, 85 F.3d at 899-900). However, for the reasons
explained above, the Court concludes that Poodry is inapplicable to challenges to present physical
confinement, core habeas challenges, which are governed by the long standing immediate
custodian rule outlined in Rumsfeld. Therefore, the Court declines to follow Toya.
Because Petitioner’s habeas petition challenges his present physical confinement,
“jurisdiction lies in only one district: the district of confinement.” Rumsfeld, 542 U.S. at 443.
Petitioner currently is confined at the Chief Ignacio Justice Center Adult Detention Center in
Towaoc, Colorado and, therefore, the Court will transfer this case to the United States District
Court for the District of Colorado in the interest of justice. See 28 U.S.C. § 1631.
IT IS THEREFORE ORDERED that the Clerk of the Court is directed to transfer this case
to the United States District Court for the District of Colorado.
UNITED STATES DISTRICT JUDGE
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