United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
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.
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). 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. 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.
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.Petitioner timely filed the present §
2255 motion on July 15, 2016, presenting seven grounds for
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).
Grounds One-Three: Hualapai Tribal Court Conviction
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).
“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.
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
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. (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.