Coriz v. Rodriguez et al

Filing 27

REPORT AND RECOMMENDATIONS re 14 MOTION for Immediate Release Pending Review filed by Daniel E. Coriz by Magistrate Judge Karen B. Molzen. Objections to R&R due by 5/29/2018. 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).) (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DANIEL E. CORIZ,
Petitioner,
v.

CIV 17-1258 JB/KBM

VICTOR RODRIGUEZ, ACTING WARDEN
Sandoval County Detention Center,
Sandoval County New Mexico,
ROBERT B. CORIZ, TRIBAL COURT JUDGE
and Governor for the Pueblo of Kewa, and
KEWA PUEBLO
(Also known as Santo Domingo Pueblo),
Respondents.

PROPOSED FINDINGS OF FACT AND
RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Petitioner Daniel E. Coriz’s Motion for
Immediate Release Pending Review of the Merits of his Petition (Doc. 14), filed on
March 30, 2018. The Honorable James O. Browning referred this case to me 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. 16. The
Court has reviewed the submissions of the parties and the relevant law, and further
conducted oral arguments on the issues thus presented. Although the Court
recommends that Petitioner’s Motion for Immediate Release be denied, it further
recommends that an expedited evidentiary hearing be held as soon as possible to
address the issues of exhaustion of remedies and waiver of rights.

I.

Background
On December 6, 2017, Daniel Coriz (“Petitioner”) was sentenced to 2,520 days

of imprisonment by the Pueblo of Santo Domingo Tribal Court (“Tribal Court”). Doc. 7-1
at 22. Petitioner then brought a Petition for Writ of Habeas Corpus under the Indian Civil
Rights Act (“ICRA”), 25 U.S.C. § 1303. Doc. 1. Petitioner now requests that the Court
grant him immediate release pending review of the merits of his Petition.
II.

Legal Standard
Citing Hilton v. Braunskill, 481 U.S. 770 (1987), Petitioner contends that there are

four factors for the Court to consider when determining release:
(1) a strong showing that the movant is likely to succeed on the merits
regarding the subject of the requested relief; (2) the movant is likely to
suffer irreparable injury in the absence of relief; (3) the requested relief will
not substantially injure the other parties interested in the proceeding; and
(4) the relief serves the public interest.
Doc. 14 at 3. But, the Hilton factors are not applicable here. Hilton deals with Federal
Rule of Appellant Procedure 23 and the standard for release of a successful habeas
petitioner after the district court has granted his or her petition, and the government is
seeking appeal. Hilton, 481 U.S. at 776-77 (“In this case, we are asked to decide what
factors these provisions [of Fed. R. App. P. 23] allow a court to consider in determining
whether to release a state prisoner pending appeal of a district court order granting
habeas relief.”). As a New Hampshire District Court correctly pointed out, Rule 23 “does
not specifically address the possibility of release on bail pending a district court’s
decision on the petition. Bader v. Coplan, No. CIV 02-508-JD, 2003 WL 163171, at *3
(D.N.H. Jan. 23, 2003).

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Rather, the appropriate standard is defined in Pfaff v. Wells, 648 F.2d 689, 693
(10th Cir. 1981). “An inmate seeking federal habeas relief must, in order to obtain
release pending a determination on the merits of his petition, make a showing of
exceptional circumstances or demonstrate a clear case on the merits of his habeas
petition.” United States v. Palermo, 191 F. App’x 812, 813 (10th Cir. 2006) (citing Pfaff,
648 F.2d at 693). While this standard has not yet been applied in an ICRA Section 1303
case, it has been applied in analogous cases where “[a]n inmate seek[s] federal habeas
relief.” Id. The Tenth Circuit has applied the Pfaff standard to cases involving habeas
petitions under Section 2255 (Palermo, 191 F. App’x at 813), Section 2254 (Pfaff, 648
F.2d at 690, 693), and Section 2241 (Stow v. Perrill, 30 F.3d 142 (10th Cir. 1994) (table
decision)). The Court therefore finds this standard persuasive, if not binding.
Most Tenth Circuit case law treats the two Pfaff requirements as alternatives (a
showing of exceptional circumstances or a clear case on the merits). See, e.g., United
States v. Zander, 669 F. App’x 955, 956 (10th Cir. 2016); Barnett v. Hargett, 166 F.3d
1220, at *1 (10th Cir. 1999) (table decision). However, in Vreeland v. Zupan, 644 F.
App’x 812 (10th Cir. 2016) the Tenth Circuit treated the standard with an “and” instead
of an “or,” noting that “a motion for release at this late stage required [petitioner] to show
not only a clear case on the merits of the habeas petition, but also exceptional
circumstances.” Id. at 813 (citation omitted). The Court distinguishes Vreeland from the
instant case because there the petition for habeas corpus was filed “nearly eight years
into a state prison term . . . .” Id. Here, the case is in its early stages, as Petitioner filed
his habeas petition within weeks of his conviction and sentencing. See Docs. 1; 7-1 at
22. The Court therefore treats the Pfaff requirements as alternative grounds for release.

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III.

Analysis
A. Exceptional Circumstances
The Tenth Circuit has held that exceptional or “special circumstances include the

raising of substantial claims upon which appellant has a high probably of success, a
serious deterioration of health while incarcerated, and unusual delay in the appeal
process.” Barnett, 166 F.3d at *1 (citations omitted). That said, in Palermo, the Tenth
Circuit found that “[a]lthough [petitioner] asserts he is suffering from various health
problems, has endured significant delay in the district court’s processing of his § 2255
motion, and is on the verge of being transferred from prison to a halfway house, none of
these assertions constitute exceptional circumstances.” Palermo, 191 F. App’x at 813.
Here, Petitioner has not shown that exceptional circumstances exist in this case.
Petitioner does argue that he has suffered irreparable harm by being unlawfully
detained. Doc. 14 at 8. He asserts that he cannot provide for his family, including a
young daughter, or care for his elderly parents, whose health has declined because of
their son’s incarceration. Doc. 14 at 9-10, 11. However, as Respondent observes,
Petitioner and his family are suffering the same stressors accompanying any conviction
and incarceration. Simply put, Petitioner fails to demonstrate a serious deterioration of
health or any other exceptional circumstances that would warrant immediate release.
B. Clear Case on the Merits
Under the alternative Pfaff requirement, Petitioner argues that he has established
a “clear case on the merits” based upon the Tribal Court’s violation of multiple sections
of 25 U.S.C. § 1302, including violations of Section 1302(c).

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According to Section 1302(c), a tribal court must comply with certain listed
requirements “[i]n a criminal proceeding in which an Indian tribe, in exercising powers of
self-government, imposes a total term of imprisonment of more than 1 year on a
defendant.” In this case, the Tribal Court charged Petitioner with thirteen counts in a
single criminal complaint. Doc. 7-1 at 9-12. At a single trial, Petitioner was found guilty
of seven of those counts. Doc. 7-1 at 22, 23. The Tribal Court sentenced him to 360
days for each offense, for a total term of imprisonment of 2,520 days. Doc. 7-1 at 22,
23. Petitioner maintains that by its plain, unambiguous language, Section 1302(c)
applies here because a tribal court imposed a total sentence, for all offenses brought in
one criminal proceeding, of more than one year. Indeed, Section 1302(c) specifically
uses the phrase “total term of imprisonment” for “a criminal proceeding.”
In contrast, Respondent Coriz relies on the limitation set forth in Section
1302(a)(7)(B); a tribal court cannot “impose for conviction of any 1 offense any penalty
or punishment greater than imprisonment for a term of 1 year . . . .” (emphasis added).
Respondent argues that because the tribal court imposed a term of imprisonment less
than one year on each charge of conviction, Section 1302(c) never comes into play.
Petitioner counters that Section 1302(c) is unambiguous – it is meant to apply when a
defendant is sentenced to a “total term of imprisonment” in a single proceeding with no
reference to the term that is imposed on a single offense.
While the Tenth Circuit has not addressed this issue, other courts have,
concluding that Section 1302(c) applies to cases where the tribal court imposed a total
sentence of more than one year for all offenses of which a defendant is convicted. In
Johnson v. Tracy, No. CIV 11-01979 PHX-DGC, 2012 WL 4478801 (D. Ariz. Sept. 28,

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2012), the petitioner was sentenced to a total of two years of imprisonment for three
different counts, with each count carrying less than one year imprisonment. Id. at *1.
The Arizona District Court held that “Petitioner’s ‘total’ prison term of two years,
resulting from a single ‘criminal proceeding,’ clearly falls within [Section 1302(c)].” Id. at
*3. Further, the Ninth Circuit explained that
[i]n 2010, Congress rewrote § 1302. Unlike the former version, the
amended statute permits up to a three-year term for “any 1 offense” in
certain circumstances. [Section 1302(a)(7)(C), (b).] It also explicitly
defined “offense” to mean “a violation of criminal law,” [Section 1302(e)]
and permits consecutive sentences up to a cumulative total of nine years
[Section 1302(a)(7)(D)]. However, if a tribal court metes out this enhanced
punishment in a single “criminal proceeding,” the defendant must receive
something akin to a full panoply of procedural rights that would be due a
criminal defendant prior to conviction. [Section 1302(c).]
Miranda v. Anchondo, 684 F.3d 844, 849 n.4 (9th Cir. 2012) (citations omitted).
Pointing to legislative history, Respondent Coriz contends that Congress
intended tribal courts have the option of conducting proceedings under Section 1302(a)
or 1302(c), depending on the length of the sentence imposed for each offense. Doc. 17
at 7-9. He asserts that this case proceeded under Section 1302(a) because the Tribal
Court imposed sentences of less than one year for each offense (in accordance with
Section 1302(a)(7)(B)), for a total of less than nine years (in accordance with Section
1302(a)(7)(D)). Doc. 17 at 5-6. Therefore, he argues that the Tribal Court did not have
to meet the Section 1302(c) requirements because Section 1302(a)(7)(D) is not subject
to Section 1302(c). Doc. 17 at 6.
The Court finds, however, that Section 1302(c) lists requirements a tribal court
must meet in addition to those requirements in Section 1302(a), not requirements that
are an alternative to Section 1302(a). Section 1302(a)(7)(B) forbids a tribal court from

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imposing a sentence of more than one year for any one offense (with an exception in
Section 1302(b) where the tribe can impose a sentence of up to three years if one of
two requirements are met). Section 1302(a)(7)(D) then forbids a tribe from imposing a
total term of imprisonment, for all offenses brought in a single criminal proceeding, of
more than nine years. In addition to those limitations, Section 1302(c) lists certain rights
that the tribe must provide to a defendant when it imposes a total term of imprisonment
over one year in a single criminal proceeding without regard to the number of offenses
of conviction. Because this Court finds the statutory language unambiguous, it need not
address legislative history. See Nat’l Ass’n of Manufactures v. Dep’t of Def., 138 S. Ct.
617, 631 (2018) (“because the plain language of [the statute] is unambiguous, our
inquiry begins with the statutory text, and ends there as well.” (quotations omitted)).
Thus, Section 1302(c) applies in this case because the Tribal Court imposed on
Petitioner a total sentence of imprisonment of more than one year (2,520 days) in one
criminal proceeding. However, the Tribal Court concedes that it did not follow at least
two of the requirements of Section 1302(c). Section 1302(c)(3)(B) requires that the
presiding judge be “licensed to practice law by any jurisdiction in the United States.”
Respondent Coriz submitted an affidavit with his Answer, in which he acknowledges
that he was the presiding judge and that he is not an attorney. Doc. 7-2 at 2. Further,
Section 1302(c)(5) requires that the tribal court “maintain a record of the criminal
proceeding, including an audio or other recording of the trial proceeding.” Again,
Respondent Coriz acknowledges in his affidavit that “[t]he Tribal Court does not record
or make transcripts of its proceedings.” Doc. 7-2 at 2.
While it is clear that the Tribal Court violated at least two requirements of Section

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1302(c), Petitioner has not established a “clear case on the merits” of his Petition
because there are remaining issues that must be addressed at an evidentiary hearing.
First, further evidence is needed to determine whether Petitioner failed to exhaust any
tribal court remedies or if exhaustion was futile.1 Additional evidence is also needed to
determine if Petitioner waived the rights afforded to him under Section 1302.
Lastly, under Section 1302(a)(7)(B), the Tribal Court is authorized to impose a
sentence up to one year for any one offense without providing the rights listed in
Section 1302(c). Here, Petitioner was convicted of seven counts and sentenced to 360
days imprisonment for each individual count. Doc. 7-1 at 23. Had the Tribal Court only
charged one of those offenses in a criminal proceeding, it would not have been in
violation of Section 1302(c). Therefore, up to 360 days of Petitioner’s total term is
presumptively valid if, as some evidence indicates, Petitioner waived his right to counsel
at the traditional trial.
Wherefore,
IT IS HEREBY RECOMMENDED that the Court deny Petitioner’s Motion for
Immediate Release (Doc. 14) and order an expedited evidentiary hearing regarding
exhaustion and waiver of rights.

_______________________________________
UNITED STATES MAGISTRATE JUDGE

1

Exhaustion “is not a jurisdiction prerequisite to review.” Valenzuela v. Silversmith, 699 F.3d
1199, 1206 (10th Cir. 2012). However, before bringing a habeas petition to federal court under
Section 1303, a petitioner must exhaust tribal court remedies or meet one of the exceptions. Id.
at 1206-07.

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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.

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