Valenzuela v. Silversmith ( 2012 )


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  •                                                                                FILED
                                                                       United States Court of Appeals
                                          PUBLISH                              Tenth Circuit
    
                         UNITED STATES COURT OF APPEALS                    November 14, 2012
    
                                                                           Elisabeth A. Shumaker
                                      TENTH CIRCUIT                            Clerk of Court
    
    
     ALVIN VALENZUELA,
    
           Petitioner - Appellant,
    
     v.
                                                                No. 11-2212
     STEVE SILVERSMITH, Deputy
     Warden, McKinley County Detention
     Center; JOSEPH DELGADO, Corrections
     Administrator, Tohono O’odham Nation,
    
           Respondents - Appellees.
    
    
               APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW MEXICO
                       (D.C. NO. 1:10-CV-01127-MCA-GBW)
    
    
    Barbara Louise Creel (Christine Zuni Cruz, with her on the briefs), University of New
    Mexico Clinical Law Programs, Albuquerque, New Mexico, appearing for Appellant.
    
    Laura Berglan, Assistant Attorney General (Doreen N. McPaul, Assistant Attorney,
    General, with her on the brief), Tohono O’odham Nation, Office of the Attorney General,
    Sells, Arizona, appearing for Appellee Delgado.
    
    Desiree D. Gurule (Kevin N. Brown and Elizabeth V. Friedenstein, with her on the brief),
    Brown Law Firm, Albuquerque, New Mexico, appearing for Appellee Silversmith.
    
    
    Before BRISCOE, Chief Judge, GORSUCH, and MATHESON, Circuit Judges.
    
    
    MATHESON, Circuit Judge.
           Alvin Valenzuela, an enrolled member of the Tohono O’odham Nation (the
    
    “Nation”), through counsel, filed a petition for writ of habeas corpus pursuant to 25
    
    U.S.C. § 1303 seeking relief from tribal court convictions and his sentence. While Mr.
    
    Valenzuela’s petition was pending in federal district court, he completed his sentence and
    
    was released from prison. The district court concluded that Mr. Valenzuela’s claims
    
    were moot because of his release. Alternatively, it concluded that Mr. Valenzuela had
    
    failed to exhaust his tribal remedies before seeking habeas relief in federal court. Based
    
    on these alternative grounds, the district court dismissed Mr. Valenzuela’s § 1303
    
    petition. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm on the ground
    
    that Mr. Valenzuela failed to exhaust his tribal court remedies and remand for the district
    
    court to dismiss his § 1303 petition without prejudice.
    
                                    I.      BACKGROUND
    
           A. The Indian Civil Rights Act
    
           Federal courts have long recognized that Indian tribes possess a unique legal
    
    status. See, e.g., Cherokee Nation v. Georgia, 
    30 U.S. 1
    , 16-17 (1831); Poodry v.
    
    Tonawanda Band of Seneca Indians, 
    85 F.3d 874
    , 880 (2d Cir. 1996). “Indian tribes are
    
    distinct political entities retaining inherent powers to manage internal tribal matters.”
    
    Poodry, 85 F.3d at 880. Constitutional provisions that limit federal or state authority do
    
    not apply to Indian tribes because the tribes retain powers of self-government that predate
    
    the Constitution. See id. at 880-81; see also, e.g., Talton v. Mayes, 
    163 U.S. 376
    , 384
    
    (1896) (holding that tribal courts are not subject to the Fifth Amendment’s requirement of
    
                                                  2
    indictment by grand jury); Martinez v. S. Ute Tribe, 
    249 F.2d 915
    , 919 (10th Cir. 1957)
    
    (explaining that the Due Process Clause of the Fifth Amendment does not apply to
    
    tribes); Felix S. Cohen, Handbook of Federal Indian Law § 4.01 (Supp. 2009) (“Indian
    
    tribes are not constrained by the provisions of the United States Constitution, which are
    
    framed specifically as limitations on state or federal authority.”).
    
           Because the individual rights provided in the Constitution do not protect Indians
    
    against their tribes, Congress passed statutes that limit tribes’ authority over their
    
    members. In 1968, Congress passed the Indian Civil Rights Act (“ICRA”) to provide
    
    enrolled tribal members with basic rights. See 25 U.S.C. § 1302. Several of the rights
    
    provided in § 1302 are similar to the guarantees afforded by the Constitution’s Bill of
    
    Rights.
    
           Three provisions of § 1302 are relevant to this appeal. First, “[n]o Indian tribe . . .
    
    shall . . . deny to any person in a criminal proceeding the right . . . [to have] at his own
    
    expense . . . the assistance of counsel for his defense.” 25 U.S.C. § 1302(6) (2006).1
    
    Second, “[n]o Indian Tribe . . . shall . . . deny to any person within its jurisdiction . . .
    
    liberty or property without due process of law.” Id. § 1302(8). Finally, “[n]o Indian tribe
    
    . . . shall . . . impose for conviction of any one offense any penalty or punishment greater
    
    than imprisonment for a term of one year [or] a fine of $5,000, or both.” Id. § 1302(7).
    
           Section 1302 does not waive tribal sovereign immunity and does not provide a
    
    civil cause of action in federal court against tribal officials. See Santa Clara Pueblo v.
    
           1
            Since Mr. Valenzuela’s conviction, § 1302 has been amended. See Pub. L. 111-
    211, 124 Stat. 2279. The citations herein are to the version of the statute in effect at the
    time of Mr. Valenzuela’s conviction.
                                                    3
    Martinez, 
    436 U.S. 49
    , 59 (1978). Instead, tribal members have only one avenue to seek
    
    relief in federal court for violations of § 1302—filing a petition for writ of habeas corpus
    
    pursuant to 25 U.S.C. § 1303. See White v. Pueblo of San Juan, 
    728 F.2d 1307
    , 1311
    
    (10th Cir. 1984) (“The only remedy in federal courts expressly authorized by Congress in
    
    the ICRA is a writ of habeas corpus.”). Section 1303 states: “The 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.” We have recognized that “[t]he
    
    ‘detention’ language in § 1303 is analogous to the ‘in custody’ requirement contained in
    
    the [other] federal habeas statute[s].” Walton v. Tesuque Pueblo, 
    443 F.3d 1274
    , 1279
    
    n.1 (10th Cir. 2006).
    
           B. Factual Background
    
           On July 29, 2007, Mr. Valenzuela was arrested after an incident on the Nation’s
    
    reservation that resulted in two deaths. Mr. Valenzuela was indicted on several counts
    
    for violating the Nation’s criminal code.
    
           On June 24, 2008, Mr. Valenzuela appeared pro se in the Tohono O’odham
    
    Judiciary Court and pled guilty to one count of conspiracy, two counts of aggravated
    
    assault, and one count of misuse of a weapon. In his written plea agreement, Mr.
    
    Valenzuela waived the right to appeal his convictions and sentence. In exchange for his
    
    plea, the Nation dismissed several charges against Mr. Valenzuela.
    
           On June 25, 2008, the tribal court accepted Mr. Valenzuela’s plea and sentenced
    
    him to 1,260 days of imprisonment—180 days for the conspiracy count and 360 days for
    
    each of the other three counts. The Nation sent Mr. Valenzuela to the McKinley County
    
                                                  4
    Detention Center—a state jail located in Gallup, New Mexico—to serve his sentence.
    
           C. Procedural Background
    
           On November 23, 2010, Mr. Valenzuela filed a petition for writ of habeas corpus
    
    in federal district court pursuant to 25 U.S.C. § 1303. When Mr. Valenzuela filed his
    
    petition, he was in custody at the McKinley County Detention Center. Mr. Valenzuela
    
    included Steve Silversmith, the warden of the McKinley County Detention Center, and
    
    the Nation as respondents to his petition.2 Frank Hecht, the corrections administrator for
    
    the Nation, was later entered as a respondent to replace the Nation.3
    
           In his petition, Mr. Valenzuela challenged his convictions and sentence on four
    
    grounds. First, he asserted that the Nation violated his right to due process by imposing a
    
    sentence in excess of ICRA’s statutory maximum. Second, he argued that the Nation
    
    violated his right to counsel under ICRA. Third, he alleged that the Nation deprived him
    
    of procedural due process when it convicted him. Finally, he contended that his
    
    incarceration in an off-reservation jail violated the Constitution and ICRA.
    
           On January 5, 2011, Mr. Silversmith and Mr. Hecht (collectively the “Appellees”)
    
    moved to dismiss Mr. Valenzuela’s § 1303 petition. They argued that dismissal was
    
    appropriate because Mr. Valenzuela had not exhausted his tribal court remedies before
    
           2
           On appeal, Mr. Silversmith contends that he is no longer a proper party to Mr.
    Valenzuela’s § 1303 petition because Mr. Valenzuela has been released from custody.
    Because we affirm the district court’s order dismissing Mr. Valenzuela’s § 1303 petition,
    we need not and do not address this issue.
           3
            Joseph Delgado has succeeded Mr. Hecht as corrections administrator for the
    Tohono O’odham Nation and has been automatically substituted as a party to this appeal.
    See Fed. R. App. P. 43(c)(2).
    
                                                 5
    filing his petition in federal court. On February 16, 2011, a federal magistrate judge
    
    recommended granting the Appellees’ motion to dismiss.
    
           On March 3, 2011, Mr. Valenzuela filed objections to the magistrate judge’s
    
    recommendation. Mr. Valenzuela argued that exhaustion is not required in the § 1303
    
    context. Alternatively, he argued that he had exhausted his tribal remedies or that
    
    exhaustion was futile.
    
           On March 11, 2011, while Mr. Valenzuela’s § 1303 petition was still pending, he
    
    completed his sentence and was released from prison. On April 5, 2011, the magistrate
    
    judge ordered the parties to file briefs regarding whether Mr. Valenzuela’s release had
    
    rendered his § 1303 petition moot. On September 1, 2011, the magistrate judge
    
    recommended dismissing Mr. Valenzuela’s petition because he had failed to exhaust
    
    tribal remedies and, alternatively, because his release had rendered his petition moot. Mr.
    
    Valenzuela filed timely objections to the magistrate judge’s recommendations. The
    
    district court overruled the objections, adopted the magistrate judge’s recommendations,
    
    and dismissed Mr. Valenzuela’s petition with prejudice.
    
           Mr. Valenzuela filed a timely appeal challenging the district court’s dismissal of
    
    his § 1303 petition.
    
                                       II. DISCUSSION
    
           Mr. Valenzuela argues that the district court erred for two reasons when it
    
    dismissed his § 1303 petition. First, he contends that the district court erred in
    
    concluding that his claims are moot. Second, he argues that the district court erred in
    
    dismissing his claims for failure to exhaust his tribal remedies.
    
                                                  6
           A. Choosing the Threshold Issue
    
           The mootness issue implicates our subject matter jurisdiction. See Rio Grande
    
    Silvery Minnow v. Bureau of Reclamation, 
    601 F.3d 1096
    , 1109 (10th Cir. 2010). The
    
    Supreme Court has instructed that federal courts may not assume they have subject
    
    matter jurisdiction for the purpose of deciding claims on the merits. Steel Co. v. Citizens
    
    for a Better Environment, 
    523 U.S. 83
    , 94-95 (1998).
    
           But “a federal court has leeway to choose among threshold grounds for denying
    
    audience to a case on the merits.” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 
    549 U.S. 422
    , 431 (2007). Federal courts may choose to avoid difficult subject matter
    
    jurisdiction questions and dispose of a case on a “threshold, nonmerits issue,” such as
    
    forum non conveniens grounds, so long as resolving the issue “does not entail any
    
    assumption by the court of substantive law-declaring power.” Id. at 433, 436 (quotations
    
    omitted).
    
           Mr. Valenzuela’s habeas petition is not one of the “mine run of cases” involving
    
    “no arduous inquiry” into subject matter jurisdiction. See id. at 436 (quotations omitted).
    
    The mootness question presents difficult issues such as whether tribal court convictions
    
    are entitled to a presumption of collateral consequences and whether federal courts have
    
    authority under 25 U.S.C. § 1303 to vacate tribal court convictions. We may avoid these
    
    difficult issues by disposing of Mr. Valenzuela’s appeal on a threshold issue without
    
    reaching the merits. See Kelley v. City of Albuquerque, 
    542 F.3d 802
    , 817 n.15 (10th Cir.
    
    2008) (choosing threshold, nonmerits determination over difficult “first-impression
    
    jurisdictional question”); Long Term Care Partners, LLC v. United States, 
    516 F.3d 225
    ,
    
                                                 7
    233 (4th Cir. 2008) (deciding case on nonjurisdictional, nonmerits issue “without first
    
    surmounting the jurisdictional hurdle of standing”).
    
           The district court’s determination that Mr. Valenzuela failed to exhaust tribal court
    
    remedies is such a threshold, nonmerits issue. See Gonzalez v. Crosby, 
    545 U.S. 524
    , 532
    
    n.4 (2005) (describing denial of a habeas petition for failure to exhaust as a “ruling which
    
    precluded a merits determination”); Nat’l Farmers Union Ins. Cos. v. Crow Tribe of
    
    Indians, 
    471 U.S. 845
    , 856 (1985) (explaining that the tribal exhaustion rule allows for
    
    record development in tribal court “before either the merits or any question concerning
    
    appropriate relief is addressed”); see also Bryant v. Rich, 
    530 F.3d 1368
    , 1374 (11th Cir.
    
    2008) (“[E]xhaustion is nothing more than a precondition to an adjudication on the
    
    merits.”). Because we agree with the district court that Mr. Valenzuela was required, but
    
    failed, to exhaust his tribal court remedies before filing his § 1303 petition, we take that
    
    “less burdensome course” to dispose of his appeal. Sinochem, 549 U.S. at 436.
    
           B. Exhaustion
    
           The district court concluded that Mr. Valenzuela had failed to exhaust his claims
    
    in tribal court. Our review of the district court’s exhaustion decision is de novo. See
    
    Robinson v. Golder, 
    443 F.3d 718
    , 720 (10th Cir. 2006).
    
           Mr. Valenzuela argues that the district court erred for two reasons when it
    
    dismissed his claims for failure to exhaust. First, he contends that petitioners are not
    
    required to exhaust their claims in tribal court before asserting them in a § 1303 petition.
    
    Second, he argues that even if exhaustion is generally required in the § 1303 context, he
    
    did exhaust his claims or, alternatively, exhaustion was futile. We address his arguments
    
                                                  8
    in turn.
    
                   1. Exhaustion and § 1303
    
           Unlike other federal habeas corpus statutes, § 1303 does not state that petitioners
    
    must exhaust their claims before litigating them in federal court. Compare 28 U.S.C.
    
    § 2254, with 25 U.S.C. § 1303. Federal courts have recognized, however, a non-statutory
    
    exhaustion requirement that generally applies to challenges to tribal court authority. The
    
    tribal exhaustion rule “provides that, absent exceptional circumstances, federal courts
    
    typically should abstain from hearing cases that challenge tribal court [authority] until
    
    tribal court remedies, including tribal appellate review, are exhausted.” Crowe &
    
    Dunlevy, P.C. v. Stidham, 
    640 F.3d 1140
    , 1149 (10th Cir. 2011); see also Texaco, Inc. v.
    
    Zah, 
    5 F.3d 1374
    , 1378 (10th Cir. 1993) (“When the activity at issue arises on the
    
    reservation, [exhaustion] policies almost always dictate that the parties exhaust their
    
    tribal remedies before resorting to [a] federal forum.”).
    
           The tribal exhaustion rule is based on “principles of comity” and is not a
    
    jurisdictional prerequisite to review. See Burrell v. Armijo, 
    456 F.3d 1159
    , 1168 (10th
    
    Cir. 2006). It applies “[r]egardless of the basis for [federal] jurisdiction,” Iowa Mut. Ins.
    
    Co. v. LaPlante, 
    480 U.S. 9
    , 16 (1987), and serves several purposes. First, it reinforces
    
    Congress’s strong interest in promoting tribal sovereignty, including the development of
    
    tribal courts. Nat’l Farmers, 471 U.S. at 856. Second, it assists “the orderly
    
    administration of justice in . . . federal court[s] . . . by allowing a full record to be
    
    developed in the [t]ribal [c]ourt before either the merits or any question concerning
    
    appropriate relief is addressed [in federal court].” Id. Third, the rule gives a tribal court
    
                                                    9
    “a full opportunity . . . to rectify any errors it may have made.” Id. All of these purposes
    
    support application of the tribal exhaustion rule to § 1303 petitions.
    
           Despite § 1303’s lack of an express exhaustion requirement, this court has
    
    suggested that § 1303 petitioners must exhaust tribal court remedies. See Dry v. CFR
    
    Court of Indian Offenses for Choctaw Nation, 
    168 F.3d 1207
    , 1209 (10th Cir. 1999)
    
    (reversing and remanding the dismissal of a habeas corpus petition for “the district court
    
    [to] consider, in the first instance, whether Petitioners have sufficiently exhausted their
    
    tribal remedies”); Harvey ex rel. Chavez v. Star, 
    1996 WL 511586
    , at *1 n.2 (10th Cir.
    
    Sept. 10, 1996) (unpublished) (stating that “the exhaustion requirement controlling our
    
    disposition under [28 U.S.C. ] § 1331 applies as well to § 1303”); cf. Tillett v. Lujan, 
    931 F.2d 636
    , 639-40 (10th Cir. 1991) (requiring exhaustion of tribal remedies for a plaintiff
    
    who filed an action challenging the jurisdiction of a Court of Indian Offense, in part, as a
    
    violation of her rights under ICRA).
    
           Other federal courts have held that the tribal exhaustion rule requires tribal
    
    members to exhaust claims in tribal court before asserting them in a § 1303 petition. See,
    
    e.g., Jeffredo v. Macarro, 
    590 F.3d 751
    , 756 (9th Cir. 2009) (“[A] litigant must first
    
    exhaust tribal remedies before properly bringing a petition for writ of habeas corpus
    
    [pursuant to § 1303].”); Necklace v. Tribal Court of Three Affiliated Tribes, 
    554 F.2d 845
    , 846 (8th Cir. 1977) (“[T]ribal remedies must ordinarily be exhausted before a claim
    
    is asserted in federal court under [§ 1303].”); see also Cohen, supra, § 9.09 (“All federal
    
    courts addressing the issue mandate that two prerequisites be satisfied before they will
    
    hear a habeas petition filed under ICRA: The petitioner must be in custody, and the
    
                                                 10
    petitioner must first exhaust tribal remedies.” (emphasis added)).
    
           We conclude that the purposes underlying the tribal exhaustion rule support
    
    applying the rule to § 1303 petitions. We note, however, that “[a]s a prudential rule
    
    based on comity, the [tribal] exhaustion rule is not without exception.” Crowe &
    
    Dunlevy, 640 F.3d at 1150. Specifically, the Supreme Court has explained that
    
    exhaustion of tribal remedies is not required where (1) “an assertion of tribal jurisdiction
    
    is motivated by a desire to harass or is conducted in bad faith,” (2) “the action is patently
    
    violative of express jurisdictional prohibitions,” or (3) “exhaustion would be futile
    
    because of the lack of an adequate opportunity to challenge the court’s jurisdiction.”
    
    Nevada v. Hicks, 
    533 U.S. 353
    , 369 (2001) (quotations omitted). None of these
    
    circumstances applies here.
    
                  2. Mr. Valenzuela’s Failure to Exhaust
    
           The district court concluded that Mr. Valenzuela had failed to exhaust his claims
    
    because he did not file a petition for a writ of habeas corpus in tribal court. Mr.
    
    Valenzuela argues that the district court was incorrect. He asserts that he exhausted all
    
    tribal court remedies and that “[a]ny further attempts to exhaust tribal remedies would be
    
    futile and result in irreparable damage.” Aplt. Br. at 18.
    
           First, Mr. Valenzuela argues that he waived his right to appeal in his written plea
    
    agreement and therefore had no tribal court remedies to exhaust. We agree with the
    
    district court that Mr. Valenzuela’s appeal waiver does not excuse his failure to pursue
    
    habeas corpus relief in the tribal court. The appeal waiver did not expressly waive Mr.
    
    Valenzuela’s right to collaterally attack his conviction in tribal court. See United States
    
                                                 11
    v. Cockerham, 
    237 F.3d 1179
    , 1181-83 (10th Cir. 2001) (holding that waivers of § 2255
    
    collateral attack rights must be expressly stated to be enforceable). That step was
    
    necessary to exhaust Mr. Valenzuela’s claims.
    
           Next, Mr. Valenzuela contends that his failure to file a habeas petition in tribal
    
    court should be excused because he had no appointed counsel and “did not know of the
    
    existence of any option to file a tribal court petition.” Aplt. Br. at 16-17. Again, we
    
    agree with the district court that this argument lacks merit. At the time Mr. Valenzuela
    
    pled guilty, ICRA did not provide the right to appointed counsel. See 25 U.S.C. § 1302
    
    (2006); Poodry, 85 F.3d at 882. In addition, ignorance of the law is not a valid excuse for
    
    failing to satisfy procedural requirements. See Marsh v. Soares, 
    223 F.3d 1217
    , 1220
    
    (10th Cir. 2000) (“[I]t is well established that ignorance of the law, even for an
    
    incarcerated pro se petitioner, generally does not excuse prompt filing.” (quotations
    
    omitted)).
    
           Finally, Mr. Valenzuela notes that the Nation’s code provides that “‘[a] party may
    
    file with the [tribal] court a petition for a writ of habeas corpus.’” 6 Tohono O’odham
    
    Code, ch. 3, § 10, R. 24 (emphasis added). He contends that this language is permissive,
    
    not mandatory, and that he therefore was not required to pursue a writ of habeas corpus in
    
    tribal court.
    
           But whether the Nation’s habeas corpus provision is permissive or mandatory is
    
    beside the point. Such relief was available to Mr. Valenzuela. Under the tribal
    
    exhaustion rule, “[u]ntil petitioners have exhausted the remedies available to them in the
    
    Tribal Court system, it [is] premature for a federal court to consider any relief.” Nat’l
    
                                                 12
    Farmers, 471 U.S. at 857 (emphasis added) (citation omitted); see Superior Oil Co. v.
    
    United States, 
    798 F.2d 1324
    , 1329 (10th Cir. 1986) (“[A]ll available tribal court
    
    remedies must first be exhausted.”). Thus, before filing his § 1303 petition, Mr.
    
    Valenzuela was required to exhaust the Nation’s available habeas relief to allow the tribal
    
    court “a full opportunity . . . to rectify any errors it may have made.” Nat’l Farmers, 471
    
    U.S. at 857.
    
           Because Mr. Valenzuela did not exhaust tribal remedies that were available to
    
    him, we affirm the district court’s dismissal of his petition.4
    
                                      III.    CONCLUSION
    
           For the foregoing reasons, we affirm the district court’s order dismissing Mr.
    
    Valenzuela’s § 1303 petition. Because our decision relies on Mr. Valenzuela’s failure to
    
    exhaust, we remand to the district court to dismiss Mr. Valenzuela’s § 1303 petition
    
    without prejudice. See Fitzgerald v. Corr. Corp. of Am., 
    403 F.3d 1134
    , 1139 (10th Cir.
    
    2005) (“[A] dismissal based on lack of exhaustion should ordinarily be without
    
    prejudice.”).
    
    
    
    
           4
             Mr. Valenzuela argues that “[s]hould this [c]ourt find that exhaustion . . . is not
    met, the proper cure would [be] to stay the federal habeas proceeding.” Aplt. Br. at 18.
    When a habeas petitioner challenges a state conviction or sentence, “stay and abeyance is
    only appropriate when . . . there was good cause for the petitioner’s failure to exhaust his
    claims first in state court.” Rhines v. Weber, 
    544 U.S. 269
    , 277 (2005). We see no
    reason to depart from this rule in the tribal exhaustion context. Mr. Valenzuela has not
    demonstrated that there was good cause for his failure to exhaust. We therefore see no
    basis for a stay and abeyance.
                                                  13