Miranda v. Anchondo

• Decision Date: 06 February 2012
• Docket Number: 10–15308.,Nos. 10–15167,s. 10–15167
• Citation: 684 F.3d 844,12 Cal. Daily Op. Serv. 1469,2012 Daily Journal D.A.R. 1584
• Parties: Beatrice MIRANDA, Petitioner–Appellee, v. Vincente ANCHONDO, Supervisory Correctional Specialist, Bureau of Indian Affairs, Office of Justice Services, Division of Corrections, District 3, Respondent–Appellant, and Kurt Braatz, Commander, Detention, Coconino County Detention Facility; Tracy Nielsen, Interim Chief, Pascua Yaqui Tribe Department of Public Safety; Chris Harney, Main Officer, Truxton Canon Correctional Facility, Respondents. Beatrice Miranda, Petitioner–Appellee, v. Tracy Nielsen, Interim Chief, Pascua Yaqui Tribe Department of Public Safety, Respondent–Appellant, and Kurt Braatz, Commander, Detention, Coconino County Detention Facility, Chris Harney, Main Officer, Truxton Canon Correctional Facility; Vincente Anchondo, Supervisory Correctional Specialist, Bureau of Indian Affairs, Office of Justice Services, Division of Corrections, District 3, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

684 F.3d 844

12 Cal. Daily Op. Serv. 1469

2012 Daily Journal D.A.R. 1584

Beatrice MIRANDA, Petitioner–Appellee,

v.Vincente ANCHONDO, Supervisory Correctional Specialist, Bureau of Indian Affairs, Office of Justice Services, Division of Corrections, District 3, Respondent–Appellant,andKurt Braatz, Commander, Detention, Coconino County Detention Facility; Tracy Nielsen, Interim Chief, Pascua Yaqui Tribe Department of Public Safety; Chris Harney, Main Officer, Truxton Canon Correctional Facility, Respondents.

Beatrice Miranda, Petitioner–Appellee,

v.Tracy Nielsen, Interim Chief, Pascua Yaqui Tribe Department of Public Safety, Respondent–Appellant,andKurt Braatz, Commander, Detention, Coconino County Detention Facility, Chris Harney, Main Officer, Truxton Canon Correctional Facility; Vincente Anchondo, Supervisory Correctional Specialist, Bureau of Indian Affairs, Office of Justice Services, Division of Corrections, District 3, Respondents.

Nos. 10–15167, 10–15308.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 2011.

Filed Aug. 17, 2011.

Amended Feb. 6, 2012.

John M. Sands, Federal Public Defender, and Daniel L. Kaplan (argued), AssistantFederal Public Defender, Phoenix, AZ, for the petitioner-appellee.

Dennis K. Burke, United States Attorney, Randall M. Howe, Deputy Appellate Chief, and Karla Hotis Delord, Assistant U.S. Attorney, Phoenix, AZ, for the respondent-appellant Vincente Anchondo.

Amanda Sampson Lomayesva (argued), and Kimberly Van Amburg, Assistant Attorneys General, Pascua Yaqui Tribe, Office of the Attorney General, Tucson, AZ, for respondent-appellant Tracy Nielsen.

Appeal from the United States District Court for the District of Arizona, Paul G. Rosenblatt, Senior District Judge, Presiding. D.C. No. 3:09–cv–08065–PGR.

Before: MARY M. SCHROEDER and CARLOS T. BEA, Circuit Judges, and JANIS L. SAMMARTINO, District Judge.^*

ORDER

The Opinion filed August 17, 2011, slip op. 10899, and appearing at 654 F.3d 911 (9th Cir.2011), is amended as follows:

At slip op. 10906, at the end of the final full paragraph; 654 F.3d at 915, end of second paragraph, add footnote “³ Our opinion in McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980), could be read as holding that a failure to object to the magistrate judge's legal conclusions constitutes automatic waiver. As we explained in Martinez, 951 F.2d at 1156 n. 4, however, that broad reading is incorrect. We thus clarify that the broad waiver rule suggested in McCall is not good law.”

With these amendments, the panel has voted to deny the petition for panel rehearing. Judge Bea has voted to deny the petition for rehearing en banc, and Judges Schroeder and Sammartino have so recommended.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. Further petitions for rehearing and rehearing en banc shall not be entertained.

OPINION

SAMMARTINO, District Judge:

In these consolidated appeals, Respondents Vincente Anchondo and Tracy Nielsen appeal the district court's order granting Petitioner Beatrice Miranda's amended petition for writ of habeas corpus. The Pascua Yaqui Tribal Court convicted Petitioner of eight criminal violations arising from a single criminal transaction. The tribal court sentenced her to two consecutive one-year terms, two consecutive ninety-day terms, and four lesser concurrent terms, for a total term of 910 days' imprisonment. On habeas review, the district court concluded that the Indian Civil Rights Act, 25 U.S.C. § 1302(7) (2009),¹ prohibited the tribal court from imposing consecutive sentences cumulatively exceeding one year for multiple criminal violations arising from a single criminal transaction. Respectfully, we disagree with the district court and hold that § 1302(7) unambiguously permits tribal courts to imposeup to a one-year term of imprisonment for each discrete criminal violation. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is an enrolled member of the Pascua Yaqui Tribe (the Tribe). On the evening of January 25, 2008, while drunkenly wandering the Pascua Yaqui Indian Reservation, Petitioner stumbled upon M.V.,² a minor teenager. Apparently believing that M.V. was laughing at her, Petitioner drew a knife and initiated a profanity-laden chase scene across the reservation.

M.V. ran home and alerted her sister, Bridget, that a woman was chasing her with a knife. Bridget went outside to investigate, where she observed an agitated Petitioner, yelling and brandishing the knife. Petitioner ignored Bridget's pleas to leave; instead, she raised the knife and threatened to throw it at the girls. In a last-ditch effort to protect herself and her sister, M.V. took aim with a basketball and launched it at Petitioner, hitting Petitioner squarely in the face.

Petitioner retreated across the street but continued to shout obscenities and threats. She finally left after Bridget called the police, who quickly apprehended Petitioner near the girls' home.

The Tribe filed a criminal complaint charging Petitioner with eight violations of the Pascua Yaqui Tribal Criminal Code: two counts of endangerment, two counts of threatening and intimidating, two counts of aggravated assault, and two counts of disorderly conduct. Petitioner appeared pro se at trial, and the Pascua Yaqui Tribal Court found her guilty on all eight counts. The tribal court sentenced her to a determinate term of 910 days' imprisonment as follows: (1) two consecutive 365–day terms on the aggravated assault counts; (2) two consecutive ninety-day terms on the threatening and intimidating counts; (3) two concurrent sixty-day terms on the endangerment counts; and (4) two concurrent thirty-day terms on the disorderly conduct counts. The sentence was reduced by 114 days for time served.

Petitioner appealed her conviction and sentence to the Pascua Yaqui Tribe Court of Appeals, arguing, inter alia, that her 910–day sentence violated the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302(7). The tribal appellate court rejected Petitioner's arguments and affirmed her conviction on all counts.

Petitioner subsequently filed an amended petition for writ of habeas corpus pursuant to 25 U.S.C. § 1303 and 28 U.S.C. § 2241, again arguing that her sentence violated § 1302(7). The parties cross-moved for summary judgment, and the magistrate judge issued a report and recommendation (R & R) advising the district court to grant Petitioner's motion for summary judgment, deny Respondents' cross-motion, and grant Petitioner's amended petition. The magistrate judge explicitly adopted the reasoning of Spears v. Red Lake Band of Chippewa Indians, 363 F.Supp.2d 1176 (D.Minn.2005), and concluded that, in enacting § 1302(7), “Congress did not intend to allow tribal courts to impose multiple consecutive sentences for criminal violations arising from a single transaction.” Therefore, like the Spears court, the magistrate judge found that the phrase “any one offense” in § 1302(7) meant “a single criminal transaction.”

The magistrate judge ordered Respondents to file written objections to the R & R within ten days, subsequently extended to “no later than noon” on January 11, 2010. Both Respondents ultimately filed objections, but did so over four hours late.

On January 12, 2010, the district court adopted the magistrate judge's R & R, granted Petitioner's amended petition, and ordered the tribal court to reduce Petitioner's sentence to one year and release her from custody. Noting the untimeliness of Respondents' objections, the district court nevertheless considered them and found them unpersuasive. The district court agreed with the magistrate judge that “the ‘any one offense’ language of ... § 1302(7) [was] properly interpreted to include all tribal code violations committed during a single transaction.”

ANALYSIS

1. Respondents did not waive their right to appeal by filing untimely objections to the magistrate judge's R & R.

Petitioner argues that Respondents' untimely objections to the magistrate judge's R & R waived Respondents' right to appeal the district court's adoption of the R & R. We disagree.

Whether an appellant has waived her statutory right to appeal is a matter of law reviewed de novo. United States v. Gianelli, 543 F.3d 1178, 1182 (9th Cir.2008). Although failure to object to a magistrate judge's factual findings waives the right to challenge those findings, “[i]t is well settled law in this circuit that ‘failure to file objections ... does not [automatically] waive the right to appeal the district court's conclusions of law.’ ” Lisenbee v. Henry, 166 F.3d 997, 998 n. 2 (9th Cir.1999) (quoting Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983), abrogated on other grounds by United States v. Reyna–Tapia, 328 F.3d 1114, 1121–22 (9th Cir.2003) (en banc)); accord Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir.2007); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991). Rather, “such a failure is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.1991). If a party has failed both to object to a magistrate judge's legal conclusions and to raise the issues in its opening appellate brief, “waiver is appropriate unless there are circumstances suggesting that it will work a substantial inequity.” Id. at 1157.³

Here, Respondents objected to the R & R; granted, they were a little late. Even so, the district court addressed Respondents' objections on their merits, concluding that it was “unpersuaded by the respondents' objections.” Moreover, Respondents' arguments on appeal implicate the district court's legal conclusions regarding the meaning of § 1302(7). They do not challenge the magistrate judge's factual findings. Unlike the appellant in Martinez, Respondents...