Pacheco v. Geisen et al

Filing 47

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 1 Petition for 2254 Relief. Objections to R&R due by March 20, 2019. 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).) (sls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WAYLON PACHECO,
Petitioner,
v.

No. 1:17-cv-749-WJ-KRS

TODD GEISEN Captain/Warden, Bureau
of Indian Affairs, Office of Justice Services,
Division of Corrections, TIMOTHY
BAILON, Tribal Official, Kewa Pueblo, ROGER
CALABAZA, Tribal Official, Kewa Pueblo, in their
Individual and Official Capacities,
Respondents.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court upon Petitioner’s Petition for Writ of Habeas
Corpus for Relief from a Tribal Court Conviction Pursuant to 25 U.S.C. § 13031 (“Petition”),
filed July 19, 2017 (Doc. 1).2 On July 25, 2017, in accordance with 28 U.S.C. § 636(b)(1)(B),
this Petition was referred to United States Magistrate Judge Kevin R. Sweazea to conduct any
necessary hearings and to recommend an ultimate disposition. See Order of Reference, ECF No.
3. Through a series of briefings and hearings, Respondents Geisen, Bailon and Calabaza
expressed that they did not oppose Petitioner’s Petition.
Having reviewed the record and the parties’ briefing, the undersigned recommends that
the Court GRANT Petitioner’s Petition and VACATE Petitioner’s underlying sentence and
conviction.

1

The Court has determined that the rules governing 28 U.S.C. § 2254 apply to actions under 25 U.S.C. § 1303. See
28 U.S.C. § 2254, Rule 1(b) (“Other Cases. The district court may apply any or all of these rules to a habeas corpus
petition [not brought by a person in custody under a state-court judgment].”).
2
Petitioner filed an Amended Petition (Doc. 15) on December 6, 2017, to correct the names of two respondents.

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Introduction and Background
On August 18, 2016, Petitioner was convicted on two counts of domestic violence; false
imprisonment; assault with a deadly weapon; failure to comply with a court order; and terroristic
threats. (Doc. 1, Ex. 1-2). He was sentenced to 1,455 days in jail, with a release date of July 9,
2020. (Id.). On July 19, 2017, Petitioner filed the instant Petition for Writ of habeas Corpus,
alleging violations of the Indian Civil Rights Act of 1968 (“ICRA”) 25 U.S.C. §§ 1301-1303.
Specifically, Petitioner argues that he was (1) denied the right to assistance of counsel, in
violation of 25 U.S.C. § 1302(a)(6), (c)(1); (2) denied the right to a trial by jury, in violation of
25 U.S.C. § 1302(a)(10); and (3) subjected to cruel and unusual punishment, in violation of 25
U.S.C. § 1302(a)(7)(A), (c).
On December 6, 2017, Petitioner was indicted on federal charges stemming from his two
counts of domestic violence. (Doc. 20-1). He is currently in federal custody awaiting trial.
(Doc. 20-3). It should be mentioned that, in his Answer (Doc. 20), Respondent Geisen
informally argued that Petitioner’s request for relief should be deemed moot because Petitioner is
currently detained under federal order, not tribal order (Doc. 20, p. 5). However, as the Court
explained in its Order on Request to Dismiss (Doc. 30), regardless of Petitioner’s current order
of detention, it appears that Petitioner may be subject to future custody under the tribal court
judgment and future custody may be challenged via a petition for writ of habeas corpus. See 28
U.S.C. § 2254 Rule 1(a)(2). Respondent Geisen declined the opportunity to challenge the
Court’s findings in this regard and, instead, maintained that he did not oppose Petitioner’s
Petition.
Analysis

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The Court first notes that as there is no opposition to Petitioner’s Petition, there are no
factual disputes to resolve. Accordingly, the Court need only consider the relief to which
Petitioner is entitled upon the granting of his Petition. The confines of habeas corpus, and ICRA
by extension, provide the Court with a clear direction in this regard.
Indian tribes are inherently sovereign. “Although physically within the territory of the
United States and subject to ultimate federal control, they nonetheless remain a separate people,
with the power of regulating their internal and social relations.” United States v. Wheeler, 435
U.S. 313, 322 (1978) (quotation omitted) superseded by statute as recognized in U.S. v. Lara,
541 U.S. 193 (2004). As a result, the United States Constitution’s Bill of Rights does not operate
as a restriction on tribal governments. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56
(1978); United States Commission on Civil Rights, The Indian Civil Rights Act: A Report of the
United States Commission on Civil Rights, at 4 (1991) [hereinafter ICRA Report]. Concerned
that the rights of individual tribal members were not adequately protected in tribal courts,
Congress enacted ICRA, a “modified version of the bill of rights,” ICRA Report at 5, which was
intended to strike a balance between tribal sovereignty and what Congress perceived as a need to
“secur[e] for the American Indian the broad constitutional rights afforded to other Americans.”
Santa Clara Pueblo, 436 U.S. 49, 61 (1978) (quotation omitted).3

3

The value and sophistication of tribal court systems should be noted at this juncture. In the words of Navajo Chief
Justice Tom Tso:
I regret that the outside world has never recognized that Navajos were functioning with sophisticated
and workable legal and political concepts before the American Revolution. I regret even more that
the ways in which we are different are neither known nor valued by the dominant society. Because
we are viewed as having nothing to contribute, much time has been wasted. Let me be more specific.
Anglo judicial systems now pay a great deal of attention to alternative forms of dispute resolution.
Before 1868 the Navajos settled disputes by mediation. Today our Peacemaker Courts are studied
by many people and governments. Anglo justice systems are now interested in compensating victims
of crime and searching for ways to deal with criminal offenders other than imprisonment. Before
1868 the Navajos did this. Now Anglo courts recognize the concept of joint custody of children and
the role of the extended family in the rearing of children. Navajos have always understood these
concepts. We could have taught the Anglos these things one hundred and fifty years ago.

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The codification of ICRA was years in the making and the subject of remedies was
thoroughly vetted prior to the Statute’s enactment. Id. at 62. Legislative history makes clear that
when determining how to address alleged ICRA violations, Congress specifically rejected a
proposal which would have allowed federal courts to conduct de novo reviews of all tribal
convictions. Santa Clara Pueblo, 436 U.S. 49, 67 (1978). Ultimately, Congress determined that
the sole remedy for violations of the Act would be review by way of habeas corpus. See Nero v.
Cherokee Nation of Oklahoma, 892 F.2d 1457, 1461 (10th Cir. 1989) (“The Supreme Court in
Santa Clara Pueblo, expressly invoking concerns about preserving tribal autonomy and selfgovernment, reasoned that the statutory scheme and the legislative history of Title I of the ICRA
indicate Congress deliberately decided not to provide federal remedies other than habeas corpus
in order to limit the Act's intrusion into tribal sovereignty.”).
From its inception, the writ of habeas corpus was designed to be a mechanism through
which one could challenge the legality of his or her confinement. At common law, the writ was
used solely to challenge a court’s jurisdiction to commit an individual to prison. See, e.g., Ex
parte Watkins, 28 U.S. 193, 197 (1830). However, the writ has long since been codified and its
scope has expanded to address a multitude of post-conviction challenges from questions of
jurisdiction to collateral attacks on constitutional violations. See Withrow v. Williams, 507 U.S.
680 (1993) (finding that habeas jurisdiction extends to Miranda violations); Stone v. Powell, 428
U.S. 465 (1976) (discussing the expansion of the writ of habeas corpus). As with most principles
of law that withstand the test of time, habeas corpus jurisprudence has evolved, resulting in
debates over federalism, finality, and the safeguarding of rights. See, e.g., Withrow, 507 U.S.
680 (1993); Wainwright v. Sykes, 433 U.S. 72 (1977).

ICRA Report at 11, n. 35, quoting Tso, The Process of Decision Making in Tribal Courts, 31 Ariz. L. Rev. 225, 227
(1989).

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While the breadth and reach of the writ of habeas corpus may be argued amongst scholars
and jurists alike, the significance of the writ, both historically and practically, is rarely called into
question. This is likely why Congress determined that the writ should be available under ICRA.
Importantly, though, whether considering habeas corpus under 28 U.S.C. §§ 2241-2255, or as it
applies to ICRA pursuant to 25 U.S.C. § 1303, the Court may not treat a habeas petition as an
appeal and substitute a final judgment of its own making for that of the convicting court. What
the Court may do upon granting a petition for habeas corpus is order the petitioner to be released,
vacate the petitioner’s sentence, and/or fashion an equitable remedy that is within the purview of
the Court’s habeas jurisdiction. 28 U.S.C. § 2255(a) (providing that, in a habeas action, a
federal prisoner may move the court to vacate, set aside, or correct his or her sentence). See also
Davis v. United States, 417 U.S. 333, 343–44 (1974) (explaining that 28 U.S.C. § 2255 was
designed to afford to federal prisoners “a remedy identical in scope to federal habeas corpus
[under 28 U.S.C. § 2254].”).
Recommended Disposition
For the reasons set forth above, it is hereby RECOMMENDED that the Court GRANT
Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) and VACATE Petitioner’s underlying
sentence and conviction.
___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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)(c). Any
request for an extension of time must be filed in writing no later than seven days from the
date of this filing. A party must file any objections with the Clerk of the District Court within
the fourteen-day period, together with any period for which an order is entered granting an
extension of time, 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.
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