Tenorio v. High Hawk

          MEMORANDUM OPINION AND REVISED ORDER OF DISMISSAL

          LEWIS T. BABCOCK, JUDGE UNITED STATES DISTRICT COURT

         On October 26, 2018, Petitioner, Delano Tenorio, through counsel, filed a Petition for Writ of Habeas Corpus for Relief From a Tribal Court Conviction Pursuant to 25 U.S.C. § 1303 (“Petition”). (ECF No. 1). As required by 28 U.S.C. § 1914, the required filing fee was paid. (Id.). At the time the Petition was filed, Petitioner was incarcerated at the Chief Ignacio Justice Center in Towaoc, Colorado, pursuant to his convictions and combined sentences of over 2, 630 days in Nos. SDPMR-0617-05 and SDPMR-0617-10 imposed by the Santo Domingo Tribal Court of the Kewa Pueblo in New Mexico. (Id.).

         On November 20, 2018, counsel for the Petitioner filed a First Amended Petition for Writ of Habeas Corpus for Relief from a Tribal Court Conviction and Banishment Pursuant to 25 U.S.C. § 1303 (“Amended Petition”). (ECF No. 10). Subsequently on November 21, 2018, in apparent recognition of this Court's Local Rules regarding the filing of an amended pleading under D. C. COLO.LCivR 15.1, a Notice of Filing Amended Petition Under Fed.R.Civ.P. 15(a)(1) was filed which attached as an exhibit the Amended Petition as a “strike through” document. (ECF No. 14). Review of the Amended Petition demonstrates that dismissal of this action without prejudice is warranted.

         I. Factual and Procedural Background

         Petitioner is a member of the Pueblo of Kewa (formerly known as the Pueblo of Santo Domingo) (“Tribe”), a federally recognized Indian Tribe in New Mexico. (ECF No. 14-1 at 3 (citing Fed. Reg. 83, 34863 (July 23, 2018)). Respondent Moquino is the current Tribal Governor/Tribal Court Judge of the Tribe. (Id. at 4). In his Amended Petition, the Petitioner alleges that he was arrested on June 5, 2017 and taken into custody by Tribal Police. (Id.). Petitioner claims he was arraigned and sentenced in a single criminal proceeding held before the Santo Domingo Tribal Court of the Kewa Pueblo (“Tribal Court”) on June 7, 2017 based on two separate case numbers. (Id.).

         Although none of the referenced Exhibits are attached to the strike through Amended Petition filed on November 21, 2018 (ECF No. 14-1), the Court is aware from other filings in the case that the written Arraignment and Judgment for No. SDPMR-0617-05 reflects a plea of guilty by the Petitioner on June 7, 2017 to the crimes of Intoxication, Disorderly Conduct 2nd, Theft, and Breaking & Entering. (ECF No. 10-2; see also ECF No. 14-1 at 6). Based upon the Petitioner's guilty plea, the Tribal Court imposed a sentence upon him in No. SDPMR-0617-05 of a total jail term of 450 days, together with fines, court costs, and other fees or costs. (Id.).

         The written Arraignment and Judgment for No. SDPMR-0617-10 reflects a plea of guilty by the Petitioner on June 7, 2018 to the crimes of Assault (X7), Recklessly Endangering Another (X7), Terroristic Threats, Disorderly Conduct, Negligent Use of Deadly Weapon (X7), Negligent Use of Deadly Weapon, and Abuse of a Child (X5). (ECF No. 10-3; see also ECF No. 14-1 at 6). Based upon the Petitioner's guilty plea, the Tribal Court imposed a sentence upon him in No. in No. SDPMR-0617-10 of a total jail term of 2, 180 days, together with fines, court costs, and other fees and costs. (Id.). Physical custody of the Petitioner was transferred to the Chief Ignacio Justice Center in Towaoc, Colorado. (ECF No. 14-1 at 2). Respondent High Hawk is the Captain and/or Acting Warden of the Chief Ignacio Justice Center. (Id. at 3).

         In the original Petition filed with this Court on October 26, 2018, Petitioner had challenged “his present physical confinement, ” arguing that his convictions from June 7, 2017 were not only invalid but also imposed in violation of the Indian Civil Rights Act (“ICRA”). (ECF No. 1 at 2). Petitioner sought, among other things, immediate release from physical custody. (Id. at 16). On October 30, 2018, Magistrate Judge Gordon P. Gallagher directed Respondents to file a preliminary response to the original Petition that was limited to addressing the affirmative defense of exhaustion of tribal remedies. (ECF No. 5). Respondents were provided with 21 days from the date of the Order in which to file their preliminary response. (Id.). Under the October 30, 2018 Order, Petitioner was allowed 21 days from the date of the filing of a preliminary response in which to file a reply and provide any information that might be relevant to his efforts to exhaust tribal remedies or factual basis to demonstrate that an exception to the tribal exhaustion doctrine is present. (Id.).

         On November 20, 2018 at approximately 12:20 p.m., Petitioner filed an Amended Petition. (ECF No. 10). However, Petitioner's filing of the Amended Petition did not comply with D.C.COLO.LCivR 15.1(a), since the pleading was not filed pursuant to a separate notice which attached the Amended Petition as a “strike through” document.

         Also on November 20, 2018, at approximately 5:10 p.m., counsel for Respondent Moquino filed his Preliminary Response to the original Petition. (ECF No. 12). In his response, Respondent Moquino indicates that Petitioner made no attempt to appeal his conviction in the Tribal Court. (Id.). Respondent Moquino further indicates that in spite of the Petitioner's failure to exhaust his tribal remedies, on November 14, 2018, Respondent Moquino entered an Order Vacating the Conviction and Sentence of the Petitioner and ordered Petitioner's release from custody. (ECF Nos. 12 and 12-1). Respondent Moquino represents that Petitioner was released from custody on November 14, 2018, and that a certified copy of the Tribal Court Order was provided to counsel for Petitioner on November 16, 2018. (ECF No. 12 at 2). Respondent Moquino therefore contends that since Petitioner has received the relief to which he is entitled under 25 U.S.C. § 1303, his original Petition and the issue of exhaustion of tribal remedies is moot and therefore, this action must be dismissed. (Id.).

         Respondent High Hawk filed his Preliminary Response to the original Petition on November 20, 2018 at approximately 10:18 p.m., indicating that he would not raise the affirmative defense of exhaustion of administrative remedies. (ECF No. 13). In a footnote, Respondent High Hawk indicates that he may no longer be a proper respondent in the action since the Petitioner is no longer in the custody of the Chief Ignacio Justice Center. (Id.).

         On November 21, 2018 at approximately 8:12 a.m., Petitioner filed his Amended Petition in compliance with this Court's Local Rules although, as noted, the strike through Amended Petition has none of the referenced exhibits attached. (see ECF Nos. 14 and 14-1). In the Amended Petition, Petitioner acknowledges that he has been released from physical custody and that the Tribal Court has vacated Petitioner's convictions and sentences. (ECF No. 14-1 at 6-7). Petitioner claims, however, that no notice of the Tribal Court's Order was provided to him or his counsel. (Id. at 7). Petitioner alleges that on November 16, 2018 at approximately 11:00 p.m., he was brought before the Tribal Court and “formally and punitively banished [ ] from the Tribal government for exercising his rights under the ICRA.” (Id.). Under the Amended Petition, Petitioner seeks an Order from this Court:

1. Finding that the convictions dated June 7, 2017, are invalid and in violation of the Indian Civil Rights Act;

2. Finding the conviction and banishment on or about November 14, 2018 [sic] are invalid and in violation of the ...