Selam v. Warm Springs Tribal Correctional Facility

• Citation: 134 F.3d 948
• Decision Date: 21 January 1998
• Docket Number: No. 96-36130,96-36130
• Parties: 98 Cal. Daily Op. Serv. 518, 98 Daily Journal D.A.R. 705 Ernest SELAM, Plaintiff-Appellant, v. WARM SPRINGS TRIBAL CORRECTIONAL FACILITY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 948

134 F.3d 948

98 Cal. Daily Op. Serv. 518, 98 Daily Journal

D.A.R. 705

Ernest SELAM, Plaintiff-Appellant, v. WARM SPRINGS TRIBAL CORRECTIONAL FACILITY, Defendant-Appellee.

No. 96-36130.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1998.

Decided Jan. 21, 1998.

Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, Oregon, for plaintiff-appellant.

Brian L. Gingerich, Karnopp, Peterson, Noteboom, Hubel, Hansen & Arnett, Bend, Oregon, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-94-01244-TMC.

Before: PREGERSON, TROTT and TASHIMA, Circuit Judges.

PREGERSON, Circuit Judge:

Plaintiff-Appellant Ernest Selam, an enrolled member of The Confederated Tribes of the Warm Springs Reservation of Oregon, was convicted of molesting two girls following a bench trial in tribal court. Selam appealed his convictions to the Warm Springs Tribal Court of Appeals, contending that he had been denied compulsory process. That appeal was rejected. Selam then filed a motion for habeas corpus relief in federal court, arguing again that he had been denied compulsory process and arguing for the first time that he had been denied rights secured under the Confrontation Clause of the Indian Civil Rights Act ("ICRA"), 25 U.S.C. § 1302(6). The district court, following the magistrate judge's recommendations, denied Selam's petition with prejudice. The court held that Selam had not been denied his right of compulsory process and that Selam had waived his confrontation clause claim by failing to exhaust it in the tribal court of appeals.

Selam filed this timely appeal, and raised the same two issues. For the reasons discussed below, we affirm.

FACTS AND PRIOR PROCEEDINGS

In October 1993, Selam attempted to sexually abuse a ten-year-old girl. ¹ Investigators later learned that, in mid-August 1993, Selam had sexually abused that victim's five-year-old sister. Like Selam, both of his victims were enrolled members of the Tribe, and both of the crimes occurred on the reservation.

These incidents formed the basis of the first and second cases against Selam, respectively. Selam was arrested and charged with attempted sexual abuse of the ten-year-old and sexual abuse of the five-year-old, offenses punishable under the Warm Springs Criminal Code. Selam entered not guilty pleas to both charges and elected to have his case tried by a tribal judge rather than a jury. Two separate trials were scheduled for March 2, 1994.

The court appointed lay Tribal Spokesperson Patricia Leno-Baker to represent Selam. ² In preparation for the proceedings, Selam provided Leno-Baker with a list of five potential character witnesses. Although Leno-Baker requested Selam's assistance in contacting these witnesses, he made numerous excuses and did not assist Baker. Leno-Baker located three of these witnesses on her own, but two of them informed her that their testimony would be damaging to Selam. The tribal judge and Leno-Baker both advised Selam of his right to compel the appearance of witnesses on his behalf before the trials, but Selam did not ask the judge to subpoena anyone. ³ Accordingly, no defense witnesses were presented in either case except for Selam himself, who testified in both cases.

In the first trial, the ten-year-old victim testified that Selam had touched her "in private." The prosecution then presented Corey Clements, an investigator for the Warm Springs Police Department who had interviewed this child in January 1994. Clements testified that the ten-year-old had told her that Selam had attempted to put his hand In the second case against Selam, the five-year-old victim did not testify. Instead, the prosecution introduced her statements through four witnesses: Dr. Leland Beamer, a physician who examined her in January 1994; the victim's parents, who testified how they learned of the abuse; and Investigator Clements, who repeated what she heard the child tell the doctor during her examination.

under her clothing. No other prosecution witnesses testified.

At the close of the first trial, the court found Selam guilty of attempted sexual abuse. When the second trial was concluded, the court found Selam guilty of sexual abuse. On April 20, 1994, the court reconvened for sentencing. Selam's punishment for his first crime (attempted sexual abuse) was a one-year suspended sentence. For Selam's second crime (sexual abuse) the court sentenced him to one year of imprisonment. ⁴

Selam appealed both convictions to the Warm Springs Tribal Court of Appeals on numerous grounds, including the ground that he was denied compulsory process. Significantly, Selam did not argue in his appeal that the tribal court had denied him his right of confrontation. On July 19, 1994, the tribal court of appeals denied Selam a hearing and dismissed his appeal.

On October 13, 1994, Selam filed a motion for habeas corpus relief in federal court. On August 14, 1996, Magistrate Judge Coffin recommended that Selam's petition for habeas corpus be denied with prejudice, noting that Selam had waived his Confrontation Clause claim by not raising it in the tribal court of appeals. Selam did not object to the magistrate judge's findings and recommendations. In an Order dated September 9, 1996, Judge Michael R. Hogan adopted the magistrate judge's findings and recommendations and entered judgment against Selam.

STANDARD OF REVIEW

We review a district court's denial of a petition for writ of habeas corpus de novo. Gretzler v. Stewart, 112 F.3d 992, 998 (9th Cir.1997). Whether a tribal court's denial of compulsory process violated an accused's rights under the ICRA is determined de novo. Fendler v. Goldsmith, 728 F.2d 1181, 1190 (9th Cir.1984). Alleged confrontation clause violations are reviewed de novo. United States v. George, 960 F.2d 97, 99 (9th Cir.1992).

ANALYSIS

I.

As a preliminary matter, the Tribe argues that, because Selam's petition for the writ of habeas corpus only seeks relief for his conviction for attempted sexual abuse of the ten-year-old girl, we should not reach the merits of his claims as they pertain to the circumstances of his other trial (for sexual abuse of the five-year-old girl). ⁵ The Tribe offers one piece of evidence to show that Selam did not raise his sexual abuse conviction in his habeas petition: Under the heading, "Nature of offense involved (all counts)," Selam wrote only "Attempted Sexual Abuse" and the docket number for that conviction.

Ordinarily, "[h]abeas claims that are not raised in the petition before the district court are not cognizable on appeal." Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir.1997) (quoting Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994)). But here, Selam did raise his sexual abuse conviction in his habeas petition, although not as clearly as he might have. Specifically, when Selam detailed his grounds for seeking habeas relief, he complained that "the children who testified for the prosecution lied and the court believed them. It was apparent the children had been coached to sound truthful even as they lied." Because each child only testified in (or was interviewed for) her own trial, the emphasized language indicates that Selam sought habeas relief for both convictions. Additionally, the magistrate judge actually applied the facts of both trials to Selam's claims. When asked to entertain a new claim raised on appeal, we have declined to do so where the habeas petitioner "did not include it in his petition to the district court, and the district court did not address it below." Willard v. California, 812 F.2d 461, 465 (9th Cir.1987) (emphasis added).

In sum, Selam's allusion to both of his trials in his habeas corpus petition sufficiently raised both convictions so that the magistrate judge felt compelled to discuss the merits of Selam's habeas corpus claims with respect to each trial. For these reasons, we find cognizable Selam's compulsory process and confrontation clause claims as they pertain to both of his convictions.

II.

Section 1302 of the ICRA guarantees to Indian criminal defendants the right to compulsory process. The pertinent provision reads:

No Indian tribe in exercising powers of self-government shall -

* * * * * *

(6) deny to any person in a criminal proceeding the right ... to have compulsory process for obtaining witnesses in his favor ....

25 U.S.C. § 1302(6) (1992) (emphasis added). To date, no published opinion has interpreted this particular clause of the ICRA. But because the ICRA clause is identical to the Compulsory Process Clause of the Sixth Amendment, the cases that interpret the Constitution speak directly to Selam's right of compulsory process under the ICRA. Compare 25 U.S.C. § 1302(6) with U.S. Const. amend. VI.

The Supreme Court has held that the Sixth Amendment's guarantee of compulsory process only is violated when the criminal defendant is arbitrarily deprived of "testimony [that] would have been relevant and material, and ... vital to the defense." Washington v. Texas, 388 U.S. 14, 16, 87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). Accordingly, when determining whether a violation of a criminal defendant's right to compulsory process has occurred, we ask "two questions: (1) whether the trial court's refusal to allow [the defendant] to call [witnesses in his favor] was an arbitrary denial and (2) whether [those witnesses] ... could have presented testimony that would have been relevant and material to the defense." United States v. Beye, 445 F.2d 1037, 1041 (9th Cir.1971) (emphasis added).

The record shows that the tribal court did not "refuse" to provide Selam compulsory process. Quite to the contrary, Judge Langnese advised Selam of his right to compel the appearance of witnesses on his behalf before his trials began. Where the defendant himself knows that he may subpoena witnesses but elects not to, we have...