[Ed. note:  Keith Hilzendeger for Jon M. Sands.  I am cocounsel for the appellant in the case summarized today.]

 

Alvarez v. Tracy, No. 12-15788 (NR Smith with O'Scannlain; dissent from Kozinski) ---

 

The Ninth Circuit affirmed the denial of a 25 U.S.C. § 1303 habeas petition filed by a tribal prisoner challenging his bench-trial conviction in tribal court on five counts involving domestic violence and his pre-TLOA, five-year sentence. The petitioner did not file a direct appeal following his conviction. The Ninth Circuit held that failure to exhaust his tribal-court remedies against the petitioner, and affirmed the dismissal on that basis without reaching the merits of the challenges to the conviction.

There are two federal claims before the court, both claimed violations of the Indian Civil Rights Act of 1968. The first is a violation of the right to jury trial. At arraignment, the petitioner was presented with an advice-of-rights form that advised that the defendant had a right to a jury trial, but did not tell him that ICRA required him to affirmatively request a jury trial or what the procedure for asking for a jury trial was. The second claim was a violation of the ICRA right to confront adverse witnesses, which is the same as that under the Sixth Amendment. Finally, the form told the petitioner that he had five days to file a notice of appeal in the event of conviction. The petitioner was convicted and sentenced to five years on this domestic-violence charge, consecutive to sentences in other cases that were not challenged before the Ninth Circuit. He did not take a direct appeal from his conviction; some time later he filed a motion for commutation of sentence, but did not raise his ICRA-based claims in that petition. The commutation petition was denied.

In federal court, the tribe moved to dismiss the habeas petition based on failure to exhaust three particular tribal remedies -- a motion for commutation of sentence, a tribal habeas petition, or a "motion to correct sentence." The tribe did not complain that the petitioner had failed to exhaust his remedy of direct appeal. The district court denied the tribe's motion to dismiss for failure to exhaust, and later denied the petition on the merits. On appeal, the tribe never argued that the court should affirm because the petitioner failed to file a direct appeal and his claims were thus unexhausted.

According to the majority, the petitioner's failure to file a direct appeal meant that the federal courts should not exercise their jurisdiction to decide the merits of his claims. Neither of the two exceptions to the exhaustion doctrine applied. Nothing in the record explained that the direct appeal would have been futile or that the direct appeal would not have offered an adequate remedy. But wasn't that because the tribe never asserted failure to file a direct appeal as a basis for lack of exhaustion? And didn't the tribe at least waive (if not forfeit) this exhaustion theory by failing to argue it either in the district court or the court of appeals. These issues didn't trouble the majority. Unlike in Wood v. Milyard, 132 S. Ct. 1826 (2012), there was no deliberate failure on the tribe's part to argue the exhaustion defense -- after all, it did identify three other bases for failure to exhaust (which the district court rejected and the court of appeals did not address). This gave the petitioner a fair opportunity to argue that his failure to file a direct appeal did not make his claims unexhausted. Moreover, for the majority the Supreme Court's decision in Granberry v. Greer, 481 U.S. 129 (1987), required exhaustion of all tribal-court remedies in order to protect tribal sovereignty "in a manner similar to abstention in favor of state courts." Accordingly, the majority affirmed the denial of the habeas petition based on the failure to take a direct appeal from the judgment of conviction.

Dissenting, Judge Kozinski complained primarily about the unfairness of holding the petitioner to a single default -- the failure to take a direct appeal -- while excusing two defaults on the part of the tribe -- the failure to argue failing to take a direct appeal as a basis for lack of exhaustion, and the failure to raise anyexhaustion argument in the court of appeals as an alternative basis for affirming the district court. He also believed that the petitioner should win oin the merits of his jury-trial claim.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/12/08/12-15788.pdf