Alvarez v. Lopez

• Decision Date: 30 August 2016
• Docket Number: No. 12–15788,12–15788
• Citation: 835 F.3d 1024
• Parties: Fortino Alvarez, Petitioner–Appellant, v. Ron Lopez,Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

835 F.3d 1024

Fortino Alvarez, Petitioner–Appellant,

v.Ron Lopez,^* Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, Respondent–Appellee.

No. 12–15788

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2013 San Francisco, California

Filed August 30, 2016

Daniel L. Kaplan (argued) and Keith J. Hilzendeger, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner–Appellant.

Thomas L. Murphy (argued), Deputy General Counsel; Linus Everling, General Counsel; Gila River Indian Community Office of the General Counsel, Sacaton, Arizona; for Respondent–Appellee.

Barbara Creel, Professor of Law and Director of Southwest Indian Law Clinic, University of Mexico School of Law, Albuquerque, New Mexico; Tova Indritz, Co–Chair, Native American Justice Committee, National Association of Criminal Defense Lawyers, Albuquerque, New Mexico; for Amicus Curiae National Association of Criminal Defense Lawyers and Barbara Creel.

Before: Alex Kozinski, Diarmuid F. O'Scannlain, and N. Randy Smith, Circuit Judges.

Concurrence by Judge Kozinski ;

Partial Concurrence and Partial Dissent by Judge O'Scannlain

ORDER

The petition for panel rehearing is GRANTED . The opinion and dissent filed on December 8, 2014 and published at 773 F.3d 1011 are withdrawn. They are replaced by the new opinion and dissent filed concurrently with this order. The pending petition for rehearing en banc is DENIED as moot. The parties may file new petitions for panel rehearing or rehearing en banc within 14 days.

OPINION

KOZINSKI, Circuit Judge:

We consider whether an Indian tribe violated a criminal defendant's rights by failing to inform him that he could receive a jury trial only by requesting one.

FACTS

Fortino Alvarez is an enrolled member of the Gila River Indian Community (the “Community”). In April of 2003, Alvarez (then 20) showed up drunk at the home of his girlfriend (then 15). Following a brief argument, Alvarez struck his girlfriend with a flashlight. When she attempted to retreat, Alvarez pulled a knife. The girlfriend's brother then stepped outside to confront Alvarez. Alvarez clubbed him too. Alvarez then took his leave, but not before informing his victims that he would soon return to kill their entire family.

Alvarez was picked up by the Community police and charged with assault, domestic violence, criminal threats, and misconduct involving a weapon. According to the Community, Alvarez received a “Defendant's Rights” form along with the criminal complaint. The Defendant's Rights form said: “You have the right to a jury trial.” The form didn't explain what Alvarez needed to do in order to invoke that right.

At a group arraignment, the judge stated that Alvarez had been informed of his rights.¹ The judge then asked Alvarez if he had any questions about those rights. He said that he didn't. At a bench trial four months later, Alvarez represented himself. He presented no evidence, no witnesses, no case, and no closing argument. When the judge asked Alvarez whether he wished to cross-examine the government's key witness, Alvarez conceded that everything the witness had said was true. Alvarez was convicted on all counts except making criminal threats. He was sentenced to five years in prison.

Under the Indian Civil Rights Act (ICRA), tribes may not deny criminal defendants facing imprisonment “the right, upon request, to a trial by jury.” 25 U.S.C. § 1302(a)(10). Alvarez sought federal habeas relief on the theory that the Community had deprived him of that right by failing to inform him that he would only receive a jury upon request. See id. § 1303. The district court denied relief after finding that Alvarez validly waived his right to a jury trial by failing to request one.

DISCUSSION

I. Exhaustion

We may not exercise jurisdiction over a habeas petition presenting ICRA claims unless the petitioner has first exhausted his tribal remedies. See Grand Canyon Skywalk Dev., LLC v. ‘SA’ NYU WA Inc. , 715 F.3d 1196, 1200 (9th Cir. 2013). The exhaustion doctrine is rooted in our respect for tribal sovereignty: We are loath to second guess a tribe's handling of a criminal case unless and until the tribe has had a fair opportunity to review the matter in its own appellate courts. In order to protect tribal sovereignty, we may raise the issue of non-exhaustion sua sponte when the tribe fails to press that defense due to an “inadvertent error.” Day v . McDonough , 547 U.S. 198, 211, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). But we may not override a tribe's “deliberate waiver” of its non-exhaustion defense. Wood v. Milyard , –––U.S. ––––, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012) ; see Day , 547 U.S. at 202, 126 S.Ct. 1675. We have no discretion to raise nonexhaustion on our own initiative when a tribe “strategically withh[olds]” this defense, “cho[oses] to relinquish it,” makes a “deliberate decision to proceed straightaway to the merits,” or “deliberately steer[s] the [court] away from” the issue. Wood , 132 S.Ct. at 1833–35.

In order to satisfy the exhaustion requirement, a criminal defendant must pursue a direct appeal or show that such an appeal would have been futile. See Jeffredo v . Macarro , 599 F.3d 913, 918 (9th Cir. 2010). Alvarez failed to pursue a direct appeal or show the appeal would have been futile. However, the Community's response to Alvarez's habeas petition didn't argue that this failure presented an exhaustion problem. In our previous opinion, we raised the nonexhaustion defense sua sponte after concluding that there was “no indication in the record that the Community deliberately waived” it. Alvarez v. Tracy , 773 F.3d 1011, 1019 (9th Cir. 2014). After reviewing new information presented in Alvarez's petition for rehearing and the parties' supplemental briefs, we now conclude that there is evidence of deliberate waiver.

In its response to Alvarez's habeas petition, the Community argued that Alvarez did not exhaust because he failed to pursue “a motion to correct his sentences” or “a motion for commutation.”² The Community now admits that its response to Alvarez's habeas petition “did not raise the failure to take a direct appeal as an argument in support of the nonexhaustion issue.”

After the Community filed its response to the habeas petition, Alvarez filed a motion for leave to conduct discovery. He sought permission to subpoena records and depose a witness regarding the appeals system in the Community courts.³ Alvarez explained that this discovery was necessary “to address the defense of non-exhaustion raised in the Community's Response.” See Johnson v. Gila River Indian Cmty. , 174 F.3d 1032, 1036 (9th Cir. 1999)(noting that the lack of a functioning appellate court would render a direct appeal futile, negating any non-exhaustion defense). In its response to this motion, the Community noted that Alvarez's request for information “relating to the processing of appeals” was “premised on a misunderstanding of Respondent's affirmative defense that Petitioner has failed to exhaust his tribal court remedies.” The Community again explained that Alvarez's available remedies were “(1) a motion for commutation of his sentence(s) or to correct his sentences(s) [sic], or (2) filing a petition for writ of habeas corpus in the Community Court.” Alvarez then withdrew his request for discovery due to the Community's “clear indication that [it] is not arguing that Mr. Alvarez failed to exhaust his claims by raising them in an appeal to the Community court of appeals.” At no point did the Community ever seek to correct Alvarez's interpretation of its response. We therefore conclude that the Community's response to the discovery request was a deliberate waiver of any non-exhaustion defense stemming from Alvarez's failure to file a direct appeal.

Our conclusion that the Community waived this defense is buttressed by the fact that the Community “deliberately steered” us away from the issue of the direct appeal. Wood , 132 S.Ct. at 1835. When asked to address exhaustion at argument before us,⁴ the Community's lawyer first insisted that the district court clearly erred by finding that it would have been futile for Alvarez to seek a commutation of his sentence or tribal habeas. When asked to expand on his argument, the lawyer again emphasized that “Alvarez never attempted to use any of the mechanisms that were specified in the record below.” According to the lawyer, these remedies “included commutation” and “a habeas proceeding.” When we asked about the possibility of a direct appeal, the Community's lawyer referred us yet again to “the mechanisms that were identified in the motion to dismiss.” Those mechanisms didn't include a direct appeal. The lawyer's dogged insistence that we focus on commutation and tribal habeas “deliberately steered” us away from any discussion of the direct appeal. Id. That steering amounts to intentional waiver, which in turn precludes us from raising non-exhaustion sua sponte. See id.

II. Merits

Under ICRA, “[n]o Indian tribe in exercising powers of self-government shall ... deny to any person accused of an offense punishable by imprisonment the right, upon request , to a trial by jury.” 25 U.S.C. § 1302(a)(10) (emphasis added). The parties debate at length whether the jury-trial right accorded by ICRA parallels the jury-trial right accorded by the Sixth Amendment. If the rights are “the same,” then we would employ federal constitutional standards when determining whether or not the Community violated Alvarez's rights under ICRA. Randall v. Yakima Nation Tribal Court , 841 F.2d 897, 900 (9th Cir. 1988) ; see also Howlett v . Salish & Kootenai Tribes of the Flathead Reservation, Mont. , 529 F.2d 233, 238 (9th Cir. 1976). But “[w]here the tribal court procedures under scrutiny differ significantly from those commonly employed ... courts weigh the individual right to fair treatment...