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 2014-09

Kay Lewis v. White Mountain Apache Tribe , 584 F. App'x 804 ( 2014 )


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  •                                                                            FILED
NOT FOR PUBLICATION                              SEP 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAY LEWIS,                                       No. 13-15467
Petitioner - Appellant,            D.C. No. 3:12-cv-08073-SRB
v.
MEMORANDUM*
WHITE MOUNTAIN APACHE TRIBE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted September 12, 2014**
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
Kay Lewis appeals the district court’s dismissal of his petition for a writ of
habeas corpus under 25 U.S.C. § 1303, the Indian Civil Rights Act. We affirm.
The district court could not grant Lewis habeas relief unless he was in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“detention,” § 1303, or its functional equivalent, “custody,” Jeffredo v. Macarro,
    599 F.3d 913
    , 918 (9th Cir. 2010). Custody involves “severe restraints on [a person’s]
individual liberty,” Hensley v. San Jose Dist. Mun. Ct.,
    411 U.S. 345
    , 351 (1973),
including restraints that fall “outside conventional notions of physical custody,”
Edmunds v. Won Bae Chang,
    509 F.2d 39
    , 40 (9th Cir. 1975).
The district court correctly held that the White Mountain Apache Tribe’s refusal
to permit Lewis to run for election to the Tribal Council was not a sufficiently severe
restraint on his liberty to constitute custody. The restriction of Lewis’ candidacy does
not create a deprivation of liberty similar to the types of infringement on personal
movement previously recognized as establishing federal habeas corpus jurisdiction.
See
    Hensley, 411 U.S. at 351 
    (release on own recognizance with restrictions on
movement); Jones v. Cunningham,
    371 U.S. 236
    , 237, 241-42 (1963) (parole
restrictions); Poodry v. Tonawanda Band of Seneca Indians,
    85 F.3d 874
    , 879, 893-95
(2d Cir. 1996) (banishment).
The judgment of the district court is AFFIRMED. The Tribe’s “Motion to
Strike Part of Appellant’s Reply Brief for Matters Not in the Record” is DENIED.
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