Coriz v. Rodriguez et al

Filing 34

REPORT AND RECOMMENDATIONS by Magistrate Judge Karen B. Molzen re 25 MOTION to Substitute Party Successive Governor filed by Daniel E. Coriz. Objections to R&R due by 6/21/2018. 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).) (KBM)

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 to
Substitute the Current Governor as the Successive Officer in the Above-Captioned
Case (Doc. 25), filed on May 1, 2018. The Honorable James 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. Having reviewed the submissions of the parties and the relevant
law, the Court recommends that Petitioner’s Motion to Substitute the Current Governor
be granted in part and denied in part.
Petitioner Coriz filed his Petition for Writ of Habeas Corpus Pursuant to 25 U.S.C.
§ 1303, naming Robert B. Coriz, in both his official capacity as Tribal Court Judge and

Governor of Pueblo of Kewa, as a respondent. Doc. 1. Respondent Coriz is no longer
the Governor of the Pueblo of Kewa, and Petitioner now wishes to substitute the current
Governor, Thomas Moquino, Jr., who was appointed to that position in 2018, as a
respondent.
Federal Rule of Civil Procedure 25(d) provides that “[a]n action does not abate
when a public officer who is a party in an official capacity dies, resigns, or otherwise
ceases to hold office while the action is pending.” Instead, the “officer’s successor is
automaticity substituted as a party,” and the “Court may order substitution at any time,
but the absence of such an order does not affect the substitution.” Fed. R. Civ. P. 25(d).
“In general [Rule 25(d)] will apply whenever effective relief would call for corrective
behavior by the one then having official status and power, rather than one who has lost
that status and power through ceasing to hold office.” Fed. R. Civ. P 25(d) advisory
committee’s note to 1961 amendment. The proper respondent, therefore, is “the official
with authority to modify the tribal conviction or sentence.” Garcia v. Elwell, CIV 17-0333
WJ/GJF, 2017 WL 3172826, at *2 (D.N.M. May 25, 2017) (citing Poodry v. Tonawando
Band of Seneca Indians, 85 F.3d 874, 899-900 (2nd Cir. 1996)).
It is undisputed that Respondent Coriz is no longer Governor and that Thomas
Moquino, Jr. now holds the office of Governor of the Kewa Pueblo. See Doc. 28 at 2.
Therefore, pursuant to Rule 25(d), Thomas Moquino, Jr. should be substituted in his
official capacity as the Respondent Governor.
Nonetheless, Respondent Coriz should remain as a proper respondent but in a
different official capacity. It appears that both the Governor of Kewa Pueblo and Tribal
Court Judge are appropriate respondents because both seem to have authority to

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provide Petitioner’s requested relief.1 See Doc. 7-1 at 22 (jail commitment form places
Petitioner into custody of the Sandoval County Detention Facility “until his release shall
be ordered by the Governor or Judge of this Pueblo.”); Id. at 1 (Judgment form, signed
by Governor or Tribal Court Judge); Garcia, 2017 WL 3172826, at *3 (“Respondent
Robert B. Coriz, in his capacity as Tribal Court Judge and Governor for the Pueblo of
Kewa is a proper tribal respondent and will be ordered to answer the Petition”.).
Although Respondent Coriz no longer serves as Governor, he “has been appointed to
serve as the Tribal Court Judge in any further proceedings against Petitioner.” Id. at 2.
As such, it appears that his official capacity role as Tribal Court Judge in this case has
not ended. The Court accordingly recommends that Robert B. Coriz remain a
respondent but only in his official capacity as Tribal Court Judge.
Lastly, the Court recommends, sua sponte, that Pueblo of Kewa be dismissed
based on sovereign immunity. “An application for 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.” Poodry, 85 F.3d 899-900
(“Because a petition for writ of habeas is not properly a suit against the sovereign, the
Tonawanda Band is simply not a proper respondent.”). Kewa Pueblo should therefore
be dismissed. Because Tribal sovereign immunity does not bar “actions against tribal
officers for writs of habeas corpus,” the remaining Respondents are properly named in
this proceeding. Id.

In his Motion to Substitute, Petitioner Coriz states that “[t]he Governor has authority over Tribal
Court decisions regarding Tribal defendants, including the release of Tribal prisoners and
vacating Tribal Court convictions and sentences.” Doc. 25, ¶ 2. He cites Garcia v. Rivas, No.
15-cv-377 MCA/SCY, 2016 WL 10538197, at *2-3 (D.N.M. Mar. 11, 2016), for this proposition.
While this may be true, at least in part, the Court has reviewed the Garcia case and finds no
such statement or implication contained in it.
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Wherefore,
IT IS HEREBY RECOMMENDED that the Court grant in part and deny in
Petitioner’s Motion to Substitute the Current Governor as the Successive Officer in the
Above Captioned Case (Doc. 25) as follows:
(1) Thomas Moquino, Jr, in his official capacity as Governor of the Pueblo of
Kewa, be substituted as a respondent in place of Robert B. Coriz, as
Governor;
(2) Robert B. Coriz remain a respondent in his official capacity as Tribal Court
Judge; and
(3) Respondent Kewa Pueblo be dismissed.

_______________________________________
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). 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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