Smith v. United States

          ORDER

          Honorable G. Murray Snow United States District Judge

         Pending before the Court is Petitioner Valance Ray Smith, Sr.'s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. (Doc. 1). Magistrate Judge Eileen S. Willett has issued a Report and Recommendation (R&R) in which she recommends that the Court deny the motion. (Doc. 14). Petitioner filed objections to the R&R. (Doc. 15). Because objections have been filed, the Court will review the record on all relevant matters de novo. For the following reasons, the Court adopts the R&R and denies the motion.

         BACKGROUND

         On May 5, 2014, Petitioner was convicted by a jury of three counts: two counts of assault with a dangerous weapon (Counts 1 and 3) in violation of 18 U.S.C. §§ 1153 and 113(a)(3) and one count of assault resulting in serious bodily injury (Count 2) in violation of 18 U.S.C. §§ 1153 and 113(a)(6).^[1] Count 3 stemmed from an incident on July 8, 2011. Petitioner got into an argument with his girlfriend, hitting her in the mouth and stabbing her in the foot. Counts 1 and 2 arose from an incident on September 12, 2012 where Petitioner fought with his girlfriend and beat her with a metal pipe. The events of September 12, 2012 had previously led to charges and a conviction in the Hualapai Tribal Court.^[2] The tribal court sentenced Petitioner to two years in prison, running from October 2, 2012 to October 2, 2014. Petitioner was serving his tribal sentence while on trial in federal court. After the conviction in federal court, Petitioner was sentenced to 146 months in prison and three years of supervised release.

         Petitioner brought a direct appeal of his federal court conviction, and was represented by court-appointed counsel. Petitioner challenged three issues: (1) whether the district court erred in denying a motion to suppress; (2) whether the district court abused its discretion by denying a motion to sever; and (3) whether the district court imposed a reasonable sentence. The Ninth Circuit affirmed the conviction and sentence.^[3]Petitioner timely filed the present § 2255 motion on July 15, 2016, presenting seven grounds for relief.

         DISCUSSION

         I. Legal Standard

         A federal prisoner may seek relief under 28 U.S.C. § 2255(a) if his sentence was imposed in violation of the United States Constitution or the laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. When a prisoner petitions for post-conviction relief, this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” Id. at § 636(b)(1). If a petitioner files timely objections to the magistrate judge's R&R, the district judge must make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         II. Analysis

         A. Grounds One-Three: Hualapai Tribal Court Conviction

         Petitioner raised three grounds for relief related to his October 2012 conviction and sentencing in the Hualapai Tribal Court: (1) the tribal court sentenced Petitioner to a term of more than one year without the appointment of defense counsel; (2) Petitioner was arraigned and sentenced to immediate imprisonment in violation of the law; and (3) the criminal laws, rules of evidence, and rules of criminal procedural were not made available to Petitioner. (Doc. 1, p. 16).

         Although “Indian tribes are ‘distinct, independent political communities, retaining their original natural rights' in matters of local self-government, ” “Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 57 (1978) (quoting Worcester v. Georgia, 31 U.S. 515, 519 (1832)). Exercising this authority, Congress passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1304, in 1968. Relevant here, ICRA establishes that “[t]he privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” 25 U.S.C. § 1303.

         In order for a court to have subject matter jurisdiction over an ICRA habeas petition, the petitioner must be in custody at the time the petition is filed. See Jeffredo v. Macarro, 599 F.3d 913, 918 (9th Cir. 2010) (“The term ‘detention' in the statute must be interpreted similarly to the ‘in custody' requirement in other habeas contexts. . . . Therefore, an ICRA habeas petition is only proper when the petitioner is in custody.”) (citing Moore v. Nelson, 270 F.3d 789, 791 (9th Cir. 2001)). Petitioner filed this action on July 15, 2016. Petitioner's term of imprisonment imposed by the Hualapai Tribal Court ended on October 2, 2014. Petitioner was not in “detention by order of an Indian tribe” at the time his § 2255 motion was filed. Additionally, a petitioner must first exhaust tribal remedies before filing an ICRA habeas petition. Jeffredo, 599 F.3d at 918; Alvarez v. Lopez, 835 F.3d 1024, 1027 (9th Cir. 2016) (“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.”). Petitioner did not pursue a direct appeal with the Hualapai Tribal Court. Petitioner has also made no showing that a direct appeal would have been futile. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 n. 12 (1987) (“[E]xhaustion [is] not required where an assertion of tribal court jurisdiction is motivated by a desire to harass or is conducted in bad faith, or where the action is patently violative of express jurisdictional prohibitions.”); Johnson v. Gila River Indian Community, 174 F.3d 1032, 1036 (9th Cir. 1999) (holding that “if a functioning appellate court does not exist, exhaustion is per se futile”).

         In objecting to the Magistrate Judge's determination that the Court lacked subject matter jurisdiction over Petitioner's attacks on the Hualapai Tribal Court conviction, Petitioner notes that the Hualapai Tribal Court ordered a Status Review of his criminal case and conviction on May 19, 2017.^[4] (Doc. 15). Petitioner appears to argue that because the tribal court ordered a review and did not take any remedial action, the Court should find that exhaustion of remedies would have been futile. The futility exception to exhaustion requires courts to answer whether “any meaningful tribal remedies exist.” St. Marks v. Chippewa-Cree Tribe of Rocky Boy Reservation, Montana, 545 F.2d 1188, 1189 (9th Cir. 1976). Meaningful tribal remedies can exist even when a petitioner's desired outcome is not reached. The focus of the inquiry is on the procedures that are available to a potential appellant and not the end result reached by any such appeal or review. Moreover, ICRA habeas jurisdiction requires both detention and exhaustion. Regardless of whether a direct appeal of Petitioner's tribal conviction would have been futile, the fact remains that Petitioner was not detained by order of an Indian tribe at the time the § 2255 motion was filed. S ...