United States District Court, D. Colorado
MEMORANDUM OPINION AND REVISED ORDER OF
T. BABCOCK, JUDGE UNITED STATES DISTRICT COURT
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.).
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.
Factual and Procedural Background
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.).
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.).
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).
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.
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.
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.).
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.).
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 ...