Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DELANO TENORIO, Petitioner, v. No. 1:18-CV Lt. TAD HIGH HAWK, ACTING WARDEN, Chief Ignacio Adult Detention Center, & THOMAS MOQUINO, TRIBAL COURT JUDGE, GOVERNOR for the Pueblo of Kewa Respondents. FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS FOR RELIEF FROM A TRIBAL COURT CONVICTION AND BANISHMENT PURSUANT TO 25 U.S.C Petitioner, Delano Tenorio ( Petitioner ), by and through his attorney of record, Barbara L. Creel, Supervising Attorney at the Southwest Indian Law Clinic, University of New Mexico School of Law Clinical Program, files his First Amended Petition, in accordance with Federal Rule of Civil Procedure 15(a), for a Writ of Habeas Corpus for relief from a tribal court conviction pursuant to 25 U.S.C The Writ should be issued based upon the following: JURISDICTION AND VENUE Jurisdiction before this Court is proper under the Indian Civil Rights Act ( ICRA ), 25 U.S.C ICRA provides 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 Section 1303 was not intended to enact a unique variety of habeas 1

2 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 2 of 22 review, rather it merely identifies tribal authority - as opposed to state or federal authority... as the source of the conduct allegedly taken in violation of federal law of the Constitution. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 899 (2d Cir. 1996) (emphasis added). The United States Court of Appeals for the Tenth Circuit has construed Section 1303 consistently with other federal habeas statutes, holding that the detention language in Section 1303 is analogous to the in custody requirement contained in 28 U.S.C Dry v. CFR Court of Indian Offenses for Choctaw Nation, 168 F.3d 1199, 1206 (10th Cir. 1999). Permanent banishment is punitive in nature if imposed for alleged criminal behavior. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 895. However, in order to invoke habeas corpus review under Section 1303, Petitioner must demonstrate a severe actual or potential restraint on liberty. Id. at 880. In this case, the Petitioner s Habeas Corpus Petition challenges his previous criminal conviction and sentence as the underlying basis of his permanent banishment from the Kewa Pueblo by the Tribal Court. This Court had original jurisdiction of this matter because of Petitioner s physical confinement in Chief Ignacio Justice Center, Adult Detention in Towaoc, Colorado. Due to this, jurisdiction lies in only one district: the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004). In habeas challenges to present physical confinement core challenges the default rule is that the proper respondent is the warden of the facility where the prisoner is being held. Castillo-Hernandez v. Longshore, 6 F.Supp. 3d 1198, 1203 (D. Colo. 2013). Thus, the Acting Warden, Lieutenant Tad High Hawk ( Respondent High Hawk ), is an appropriate party as the immediate physical custodian of Petitioner Tenorio in the jurisdiction. While a petitioner s immediate physical custodian is typically a proper respondent in traditional habeas petitions, the statutory custodian requirement of 28 U.S.C is sufficiently flexible to permit the naming of respondents who are not immediate physical custodians if practicality, 2

3 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 3 of 22 efficiency, and the interests of justice so demand. Quair v. Sisco, 359 F. Supp. 2d 948, 974 (E.D. Cal. 2004). Further, the current Tribal Governor/Tribal Court Judge Thomas Moquino ( Respondent Moquino ) is an appropriate party as the tribal sovereign official with the power to modify the underlying conviction. Where the only named respondent is the immediate physical custodian of the prisoner, full relief cannot be granted because an order to the custodian directing release of the prisoner does not modify or vacate the underlying tribal conviction in the absence of a tribal official. The petitioner must name as a respondent a tribal official who has "both an interest in opposing the petition if it lacks merit, and the power to give the petitioner what he seeks if the petition has merit- namely his unconditional freedom." Poodry, 85 F.3d at While Respondent High Hawk is no longer the immediate custodian, practicality, efficiency, and the interests of justice support continuing to name him as Respondent lest the Tribal Court evade federal review of Petitioner s illegal conviction, sentence, incarceration and banishment by moving Petitioner. Respondent Moquino, as the Tribal Governor/Tribal Court Judge, possesses the authority to alter Petitioner's conviction or sentence and vacate the underlying tribal orders. Both are appropriately named in this action. FACTUAL AND PROCEDURAL BACKGROUND 1. Petitioner Tenorio is an enrolled member of the Kewa Pueblo ( Tribe ), a federally recognized Tribe in New Mexico. See Fed. Reg. 83, (July 23, 2018). 2. Respondent High Hawk is the Captain and/or Acting Warden of the Chief Ignacio Justice Center in Towaoc, Colorado. 3. Respondent Moquino is the current Tribal Governor/Tribal Court Judge of the Kewa Pueblo. 3

4 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 4 of On June 5, 2017, Petitioner was arrested and taken into custody by the Kewa Pueblo. See Exhibit 1, Decl. of Delano Tenorio. 5. On June 7, 2017, Petitioner was arraigned and sentenced in a single criminal proceeding based upon two separate case numbers by the Santo Domingo Tribal Court ( Tribal Court ) of the Kewa Pueblo. See Ex Petitioner received no notice of the criminal proceeding. See Ex After the single criminal proceeding, the Tribal Court imposed a total sentence of 2,630 days. See Exhibits 2-3, Case SDPMR Arraignment and Judgment; Case SDPMR Arraignment and Judgment. 8. At the time of the criminal proceeding, Petitioner was only eighteen-years-old. See Ex Petitioner faced imprisonment of well beyond one year based on the charges against him. See Ex The Tribal Court failed to inquire into Petitioner s ability to pay for an attorney, and it failed to provide Petitioner with an attorney. See Ex In fact, the Tribal Court never advised Petitioner of his right to counsel. See Ex Additionally, the Tribal Court did not advise Petitioner of his right to request a jury trial. See Ex Petitioner did not waive his right to counsel or his right to a jury trial, nor is there any evidence in the record of Petitioner doing so. See Ex Upon information and belief, there is no written Kewa Tribal Code or published rules of evidence or criminal procedure. 4

5 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 5 of Importantly, neither the Tribal Court nor Kewa Pueblo Law allows or provides for attorneys to practice or represent criminal defendants before it, nor do they allow or provide for the right to trial by jury. 16. Upon information and belief, the Tribal Court failed to create any contemporaneous record, audio or other, of the proceedings against Petitioner. 17. Upon information and belief, the judge presiding over the cases was not a lawtrained judge or a licensed attorney. 18. The criminal proceedings against Petitioner were not open to the public. See Ex The Tribal Court did not explain to Petitioner the nature of the charges against him. See Ex The criminal proceeding was conducted in Keres, the native language of the Kewa Pueblo. Petitioner speaks the language but had difficulty understanding the trial proceedings. See Ex Petitioner was not allowed compulsory process by which to obtain witnesses to testify in his favor. See Ex Upon information and belief, the Kewa Pueblo Law has no compulsory process for criminal defendants to obtain witnesses to testify in the defendant s favor. 23. Further, Petitioner had no opportunity to confront witnesses against him at the criminal proceeding, nor was any evidence presented against him. See Ex In case SDPMR , the Tribal Court sentenced Petitioner to 450 days and to pay $190 in fines, charging him with (1) Intoxication, (2) Disorderly conduct, (3) Theft, and (4) Breaking and Entering. See Ex. 2. 5

6 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 6 of Immediately after in the same criminal proceeding, in case SDPMR , the Tribal Court consecutively sentenced Petitioner to 2,180 days and to pay $2,315 in fines for the charges of (1) Assault X7, (2) Recklessly Endangering Another, (3) Terroristic Threats, (4) Disorderly Conduct, (5) Negligent Use of Deadly Weapon X7, (6) Negligent Use of Deadly Weapon, and (7) Abuse of a Child X5. See Ex Petitioner did not understand the charges against him or the notations of the charges, such as X7 and X5. See Ex Although Petitioner pleaded guilty to the charges for both cases SDPMR and SDPMR , to the best of his knowledge, information, and belief he was never advised of his rights by the Tribal Court. See Ex Petitioner s combined sentences of 2,630 days amounts to over seven years of imprisonment. See Exs As of the filing of this Petition, Petitioner has served over one year of his 2,630 day sentence. 30. Upon information and belief, the BIA took no steps to test the constitutionality of Petitioner s sentence or conviction. 31. According to Petitioner and based upon his knowledge, experience, and traditional upbringing, neither the Tribal Court nor Kewa Pueblo Law allow for any process for appeal. 32. On November 14, 2018, the Tribal Court issued an Order (the Order ) vacating Petitioner s conviction and sentence. See Ex. 4, Order Vacating Sentence and Conviction. 33. Upon information and belief, no notice of the Order was provided to Mr. Tenorio. Nor was notice of the Order provided to his counsel. 6

7 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 7 of Upon information and belief, on or around November 14, 2018, and without notice to his Counsel of Record in this matter, Mr. Tenorio was removed from the Chief Ignacio BIA detention center in Colorado and transported by a BIA law enforcement official to Sandoval County Detention Center ( SCDC ) in Bernalillo, New Mexico. 35. Upon information and belief, on or about November , Petitioner was transported by a BIA law enforcement official to Santo Domingo Tribal Court, and formally and punitively banished Petitioner from the Kewa Pueblo government for exercising his rights under the ICRA. 36. Upon information and belief, in a proceeding beginning at approximately 11:00pm on November 16, 2018, Petitioner was brought before the Santo Domingo Tribal Court. Petitioner was denied the right to Counsel. 37. Upon information and belief, Petitioner was not given notice of the proceeding or the charges or evidence against him, was not permitted to contact or to have an attorney, was not advised of any of his rights, was not allowed compulsory process for witnesses on his behalf, was not allowed to confront witnesses against him. The proceedings were conducted in the Keres language which he was unable to understand. 38. Upon information and belief, Petitioner was questioned about how he had obtained habeas counsel. 39. Upon information and belief, Petitioner was asked about the alleged incident for which he had been convicted and sentenced and which lead to the original petition in this matter. 40. Petitioner has exhausted tribal remedies. Consistent with traditional custom and practice, as well as all of Petitioner s knowledge and experience, a criminal proceeding and a 7

8 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 8 of 22 sentencing hearing before the traditional Governor s Court are the final review and remedy. See Ex. 5, Sean Kinnery Affidavit, and Ex. 6, American Indian Law Center Report Excerpt. 41. Notwithstanding the above, any such exhaustion of tribal remedies is not required by the Indian Civil Rights Act. In addition, it would be futile in this case in light of the facts on the record. See Wounded Knee v. Andrea, 416 F. Supp. 1236, (D.C.S.D. 1976) (A member of a Tribe petitioning for a writ of habeas corpus in federal court does not need to go through motions of exhaustion if: he or she proves that resort to remedies provided by the tribe would be futile, and if a tribal remedy and theory is nonexistent in fact, or at best inadequate, it might not need to be exhausted.) Petitioner was pro se in the Tribal Court. To require Petitioner to continue to attempt to represent himself pro se on a non-existent appeal or discretionary process in Tribal Court would be futile as this is what gave rise to the severe violations of his rights under ICRA. CLAIMS I. THE TRIBE VIOLATED PETITIONER S RIGHTS TO FUNDAMENTAL DUE PROCESS GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT 25 U.S.C. 1302(a)(8). Concise Statement of Facts and Law in Support of Claim I: The ICRA requires due process in a criminal proceeding. The Tribe, in exercising its powers of self-government, wholly denied Petitioner any semblance of due process. No Indian tribe in exercising powers of self-government shall deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law. 25 U.S.C. 1302(a)(8). In 2010, Congress passed the Tribal Law and Order Act ("TLOA"), Pub. L. No , tit. II (Jul. 29, 2010), 124 Stat Doc. 1 at The TLOA 8

9 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 9 of 22 provided additional procedural safeguards to the ICRA that, if violated, can give rise to due process violations. 25 U.S.C. 1302(c). As set forth in the facts above and established in the records, the Tribe, in exercising its powers of self-government, violated Petitioner s due process rights under Section 1302(a)(8). First, the Tribal Court failed to give Petitioner any notice of the criminal proceedings. Second, the Tribal Court to advise Petitioner of his right to retained or appointed counsel. Third, the Tribal Court failed to inform Petitioner of his right a jury trial. Fourth, the Tribal Court failed to provide Petitioner with a public trial; to adequately inform him of the nature of the charges against him; to allow him the opportunity to confront witnesses against him or compel any witnesses in his favor. Fifth, the Tribal Court failed to provide Petitioner with indigent defense counsel. Sixth, the Tribal Court failed to provide a law trained judge, or published laws or rules of evidence, or to a record of the proceedings. II. THE TRIBE VIOLATED PETITIONER S RIGHT TO COUNSEL AS GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT 25 U.S.C. 1302(a)(6). Concise Statement of Facts and Law in Support of Claim II: The ICRA affords every person in a criminal proceeding to have the assistance of counsel at his own expense under 25 USC 1302(a)(6). The Tribal Court failed to inform Petitioner of his right to counsel. The Tribal Court never issued Petitioner an Advisement of Rights document informing him of his right to retain counsel pursuant to Section 1302(a)(6) or otherwise informed him of that right. Here, the Tribal Court never inquired about Petitioner s ability to pay for counsel or informed him of his right to defense counsel, despite the fact that he was facing potential incarceration of over seven years. Petitioner was not allowed the opportunity to have an attorney, 9

10 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 10 of 22 either at his own expense or at the Tribe s expense. Petitioner was only eighteen-years-old at the time of his incarceration, with no experience and no resources for finding and retaining an attorney. Petitioner was given only two days to prepare and forced to appear pro se. Even for an individual who understands how the tribal and federal legal systems work, that would be insufficient time to secure effective counsel. Further, the litigation process itself, consisting of an arraignment, summary trial, and sentencing all critical stages in a criminal case was condensed and completed in a single proceeding. During the single criminal proceeding, the Tribe charged Petitioner with approximately eleven charges. Because these were critical stages of criminal proceedings, Petitioner s right to counsel under Section 1302(a)(6), and 1302(c) as discussed in Claim V, required the presence of counsel unless Petitioner waived this right. Mempa v. Rhay, 389 U.S. 128, 134 (1967). The time in which Petitioner was advised of his charges, asked to plead, and sentenced transpired so quickly that there was, again, no opportunity for him retain an attorney, much less give the attorney time to adequately prepare his defense. Powell v. Alabama, 287 U.S. 45, 58 (1932) (holding that defendants right to counsel was violated when a defense attorney was appointed immediately before trial and had no time to prepare for the proceedings). As set forth in Claim V, there was no waiver of counsel. III. THE TRIBE VIOLATED PETITIONER S RIGHT TO A PUBLIC TRIAL, HIS RIGHT TO BE INFORMED OF THE NATURE OF THE CHARGES, HIS RIGHT TO CONFRONT AND TO COMPEL WITNESSES IN HIS FAVOR GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT PURSUANT TO 25 U.S.C. 1302(a)(6). Concise Statement of Facts and Law in Support of Claim III: 10

11 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 11 of 22 The Tribe, in exercising its powers of self-government, violated Petitioner s rights under Section 1302(a)(6), including his rights to know the nature and cause of the charges against him, to a public trial, and to obtain witnesses in his favor. Under the ICRA the Tribe is not allowed to deny any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor... Id. 1302(a)(6). The Tribe has no available law or procedure. The form of charges did not include references to any code or elements of offenses. The Tribal Court did not explain the accusations against Petitioner to him, and Petitioner was unfamiliar with the notations associated with his charging documents, such as X7 and X5. Thus, the Tribal Court conducted the criminal proceeding without providing adequate notice to Petitioner, a teenager at the time, as to the basis for the crimes with which he was being charged. Further, Petitioner did not understand some of the proceedings as the Tribal Court conducted them in its native language of Keres. While Petitioner speaks Keres, there is much of the criminal proceeding that he was unable to follow due to the language barrier presented. Petitioner also had the right to a public trial, of which he was unaware, and which did not occur in this case. No witnesses were presented for Petitioner to confront, nor was any evidence presented against him. Finally, it is incumbent upon the Tribal Court to provide a compulsory process for Petitioner to have witnesses testify in his favor. Id. No such process was allowed. IV. THE TRIBE VIOLATED PETITIONER S RIGHT TO A JURY TRIAL GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT 25 U.S.C. 1302(a)(10). Concise Statement of Facts and Law in Support of Claim IV: The Tribe, in exercising its powers of self-government, denied Petitioner the right to trial by jury. The ICRA provides that a defendant has the statutory right to request a jury trial pursuant 11

12 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 12 of 22 to 25 U.S.C. 1302(a)(10). Specifically, Section 1302(a)(10) states, No Indian Tribe in exercising powers of self-government shall deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons. Id. In Baldwin v. New York, the Supreme Court of the United States held that a defendant has the right to a trial by jury for serious offenses, that is those offenses punishable by more than six-months imprisonment, but not for petty offenses, that is those not punishable by more than six months. 399 U.S. 66, 69 (1990). Unlike the defendants in Baldwin v. New York, 399 U.S. 66, 69 (1990), the ICRA affords all criminal defendants facing imprisonment the right to a jury upon request, not just those offenses punishable by over six months. The Tribal Court failed to advise Petitioner of his right to request a jury trial as a criminal defendant facing imprisonment and failed to allow him to invoke the right. This issue is dispositive. See Alvarez v. Lopez, 835 F.3d 1024, 1030 (C.A.9 (Ariz.) 2016) (an Indian Tribe violated the defendant s right to a jury trial under the ICRA, requiring reversal of his tribal convictions, where Tribe failed to explain how to invoke the right). See also Fragua v. Casamento, No. CV RB/WPL2017 U.S. Dist. LEXIS at *6 (D.N.M. May 8, 2017)( Because denial of the right to a jury trial is a structural defect, it requires automatic reversal ). The record demonstrates that the Tribe denied Petitioner the right to a jury trial under the ICRA, or at a minimum, failed to advise him, as a pro se defendant, of his right to request one. V. THE TRIBE VIOLATED PETITIONER S RIGHT TO APPOINTED AND EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT 25 U.S.C. 1302(c)(1)-(2). Concise Statement of Facts and Law in Support of Claim V: 12

13 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 13 of 22 The Indian Tribe, in exercising its powers of self-government, violated Petitioner s right under Section 1302(c) failing to follow the statutory requirements for imposing such a sentence greater than one year. Prior to 2010, the Indian Civil Rights Act provided that the Indian Tribe could, in no event, impose a sentence of over 365 days. 1302(a)(7)(B) (2006). In 2010, the Tribal Law and Order Act of 2010, amended ICRA to allow longer sentences under specific circumstances only if certain fundamental due process requirements are met. 1 Thus, in addition to fundamental due process under specific process requirements applicable in every case, under Section 1302(a) (due process, right to jury trial, confrontation and compulsory process), ICRA requires enhanced due process protections under Section 1302(c) (effective assistance of counsel under United States Constitutional standards, indigent defense counsel, publicly available laws, and a public record). These amendments require Tribes to provide the right to effective assistance of counsel equal to the U.S. Constitutional guarantees, and the right to appointed counsel to criminal defendants facing sentences of greater than one year. Sections 1302(c)(1)-(2) of the ICRA state: (c) Rights of defendants. In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall-- (1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and (2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies 1 As stated supra, in 2010, Congress passed the TLOA Amendments to the ICRA, also known as the Felony Sentencing Enhancements. 25 U.S.C See, TLOA Pub. L. No , Sec. 234 (a) (b) & (c) Tribal court sentencing authority. See, also, Parks & Flute, Tribal Law and Order Act: Enhanced Sentencing Authority, available at: 13

14 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 14 of 22 appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys; Id. 1302(c)(1)-(2) Here, the Indian Tribe imposed a total sentence of over seven years. Therefore, the Tribe was required to provide an attorney to represent Petitioner. Id. At Petitioner s arraignment and sentencing hearing, the Tribal Court never provided counsel to Petitioner, nor did it advise him of his right to the assistance of counsel. Petitioner did not waive his right to be provided with an attorney. NO VALID WAIVER The Indian Tribe, in exercising its powers of self-government, did not obtain a knowing, voluntary, and intelligent waiver of Petitioner s right to counsel under Section 1302(a)(6) or 1302(c). Montejo v. Louisiana, 556 U.S. 778, 786 (2009); See also Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (providing that it is the duty of the trial court judge to determine whether the defendant has made a valid waiver); See also Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (stating that a defendant cannot waive his right to counsel unless the court conducts a colloquy in which the judge makes certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered ). The record is devoid of any review of the enumerated rights to appointed counsel or retained counsel, and no waiver of those rights. Petitioner did not waive his right to counsel. The only document that Petitioner was provided and signed during his initial hearing were the Arraignment and Judgment forms for each suit (See Attachments A and B). Without counsel and without adequate information about the risks trial or sentencing, there can be no valid plea. 14

15 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 15 of 22 The Arraignment and Judgment forms do not contain a waiver. The form did not inquire whether Petitioner was indigent, requesting counsel and contained no signature acknowledging or waiving any rights. Carnley v. Cochran, 369 U.S. 506, 515 (1962) (stating a waiver of any substantive trial and pre-trial rights may not be presumed from a silent record). The Tribal Judge who presided over the hearing provided no active inquiry explaining the legal consequences of waiving the right to counsel to Petitioner. Faretta v. California, 422 U.S. 806, 835 (1975) (stating that courts must make defendants aware of the dangers and disadvantages of self-representation ). There is no evidence that the Tribal Judge asked if Petitioner wanted to retain an attorney at his own expense, much less informed him that the Tribal Government is required to pay for one in this case. Thus, in this case, Petitioner could not have, nor did he, knowingly, intelligently, and voluntarily waive his right to counsel. Montejo, 556 U.S. at 786. The convictions and sentences are illegal and the writ should issue. However, even if the Tribal Court had so advised Petitioner, neither the Tribal Court nor the Kewa Pueblo Law has allowed or provided for attorneys to practice or represent criminal defendants before the Tribal Court. In this case, the right to counsel is nonexistent or wholly inadequate within the Tribal Court on the Kewa Pueblo. The Tribal Court never issued Petitioner an Advisement of Rights order informing him of his right to counsel pursuant to Sections 1302(c)(1)-(2). Therefore, Petitioner was effectively denied his right to retain counsel and his right to the assistance of counsel at the Tribe s expense as required by ICRA Sections 1302(c)(1)-(2). VI. THE TRIBE VIOLATED PETITIONER S RIGHTS TO A LAW TRAINED JUDGE, PUBLISHED LAW AND RULES, AND A RECORD GUARANTEED BY THE INDIAN CIVIL RIGHTS ACT PURSUANT TO 25 U.S.C. 1302(c)(3)-(5). Concise Statement of Facts in Support of Claim VI: 15

16 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 16 of 22 The Tribe, in exercising its powers of self-government, violated Petitioner s rights to a law trained judge, published laws and rules of evidence and criminal procedure, and a record of the proceedings guaranteed under ICRA pursuant to Sections 1302(c)(3)-(5). Sections 1302(c)(3)-(5) state: (3) require that the judge presiding over the criminal proceeding (A) has sufficient legal training to preside over criminal proceedings; and (B) is licensed to practice law by any jurisdiction in the United States; (4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and (5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding. 25 U.S.C. 1302(c)(3)-(5). Under the TLOA amendments to ICRA, 25 U.S.C (As amended July 29, 2010, P.L , Title II, Subtitle C, 234(a), 124 Stat. 2279), the Tribe violated Petitioner s enhanced due process rights as a criminal defendant facing greater than one year. First, the protections of Section 1302(c)(3) require the judge presiding over criminal proceedings, where the total sentence is greater than one year, to have sufficient legal training to preside over a criminal proceeding and be licensed to practice law anywhere within the United States. Id. 1302(c)(3). As stated, Petitioner s charges carried a sentence of over seven years. The Presiding Judge in this case was Governor Robert B. Coriz. Governor Coriz did not have sufficient legal training to preside over the criminal proceeding and is not licensed to practice law as required by Section 1302(c)(3). Second, Section 1302(c)(4) demands that the criminal laws, rules of evidence, and rules of criminal procedure be made publicly available. The Tribe failed to meet any of these demands in 16

17 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 17 of 22 compliance with the statute. The Tribal Court does not have a compilation of criminal laws, rules of evidence, or rules of criminal procedure, published or otherwise. There is no formal appellate procedures or process. Thus, Petitioner has exhausted all available tribal remedies available to him. Without published criminal laws, rules of evidence, or criminal procedure, or any appellate process, any further attempts to remedy Petitioner s sentence through the Tribe will be futile. Third, Section 1302(c)(5) provides that in a criminal proceeding imposing a sentence of greater than one year, the Tribe shall maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding. 25 U.S.C. 1302(c)(5). Upon information and belief, no contemporaneous record, nor any record, of the proceedings was created at the time of the proceedings in this case. See Fine Consulting, Inc. v. Rivera, 915 F. Supp. 2d 1212, 1225 (D.N.M. 2013) (the tribal exhaustion rule promotes the orderly administration of justice by allowing a full record to be developed in the tribal court ). As no record exists, it would be futile to require additional Tribal Court proceedings for the purpose of developing a full record. The Tribe has never met any of the requirements to legally impose an enhanced sentence in prior cases brought in this District and the District of New Mexico 2, and it again failed to do so in this case. The convictions and sentences are illegal, individually and separately, and as a whole, and the Writ should issue. 2 Aguilar v. Rodriquez et al, Docket No. 1:17-cv (D.N.M. Dec 27, 2017); Coriz v. Rodriguez et al, Docket No. 1:17-cv (D.N.M. Dec 22, 2017); Pacheco v. Geisen et al, Docket No. 1:17-cv (D.N.M. Jul 19, 2017); Garcia v. Geisen et al, Docket No. 1:17-cv (D.N.M. Jun 30, 2017); Tortalita v. Geisen et al, Docket No. 1:17-cv (D.N.M. Jun 29, 2017); Van Pelt III v. Giesen et al, Docket No. 1:17-cv (D.N.M. Jun 15, 2017); Cheykaychi v. Geisen et al, Docket No. 1:17-cv (D.N.M. May 02, 2017) (transferred to the District Court for the District of Colorado as Cheykaychi v. Geisen et al, Docket No. 1:17-cv (D. Colo. Jul 07, 2017); Garcia v. Elwell et al, Docket No. 1:17-cv (D.N.M. Mar 10, 2017); Calabaza v. Gleason, Docket No. 1:15- cv (D.N.M. Nov 18, 2015); Garcia v. Rivas et al, Docket No. 1:15-cv (D.N.M. May 04, 2015); Calabaza v. Massingill et al, Docket No. 1:10-cv (D.N.M. Dec 16, 2010); Garcia v. Massingill et al, Docket No. 1:10-cv (D.N.M. Dec 03, 2010); Star v. Massingill et al, Docket No. 1:10-cv (D.N.M. Nov 04, 2010); Pacheco v. Massingill et al, Docket No. 1:10-cv (D.N.M. Sept 28, 2010); Suina v. Bailon, et al, Docket No. 1:99-cv (D.N.M. Oct 01, 1999). 17

18 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 18 of 22 VII. THE TRIBE VIOLATED PETITIONER'S RIGHTS TO EQUAL PROTECTION UNDER 25 U.S.C. 1302(a)(8) OF THE INDIAN CIVIL RIGHTS ACT AND THE UNITED STATES CONSTITUTION WHEN IT CONVICTED AND SENTENCED HIM TO SEVEN YEARS INCARCERATION AND LATER SUBJECTED HIM TO ADDITIONAL PUNISHMENT MORE SEVERE FOR FILING HIS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT THE BENEFIT OF COUNSEL AT ANY STAGE OF THE CRIMINAL PROCEEDINGS. Concise Statement of Facts in Support of Claim VII: Upon information and belief, Petitioner was subjected to trial and punishment without an attorney at all stages of his criminal proceeding in the Tribal Court. His incarceration at the federal and state facility was in violation of ICRA, 25 U.S.C. 1302, and his equal protection rights under the U.S. Constitution. Neither the Bureau of Indian Affairs which operates the prison in Towaoc, Colorado where Petitioner was held nor Sandoval County, New Mexico which operates the other detention facility where he was held endeavored to certify whether his order of incarceration was valid. As a result, Petitioner was jailed in violation of his rights for over 500 days. Because Petitioner was without an attorney at the Tribal Court, he was without any means to challenge the illegal order of detention in tribal court or in federal court. Upon filing his Writ of Habeas Corpus with the help of counsel, Petitioenr was punished again without counsel and without notice to his counsel or any entity. VIII. THE TRIBE VIOLATED PETITIONER S RIGHT TO DUE PROCESS OF LAW AND DOUBLE JEOPARDY WHEN IT INFLICTED ADDITIONAL PUNISHEMENT ON PETITIONER FOR THE SAME BEHAVIOR IN VIOLATION OF 25 U.S.C. 1302(a)(3). Concise Statement of Facts in Support of Claim VIII: The Tribe, in exercising its powers of self-government, violated Petitioner s right to due process of law and double jeopardy by inflicting additional punishment on Petitioner for the same behavior, events, and occurrences of his vacated sentence and conviction. Section 1302(a)(3) 18

19 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 19 of 22 states, No Indian Tribe in exercising powers of self-government shall subject any person for the same offense to be twice put in jeopardy. 25 U.S.C. 1302(a)(3). Here, the Tribe vacated Petitioner s conviction and sentence in name only. As soon as Petitioner was released, he was compelled back in front of the Tribal Court on the bases of the same offenses as his original underlying conviction. With none of the rights guaranteed by the Section 1302 of the ICRA referenced supra, the Tribal Court again held another criminal proceeding and punitively banished Petitioner from the Kewa Pueblo. The banishment proceeding of Petitioner was inherently criminal in nature as the proceedings were intended to punish Petitioner for the same offenses for which he had originally been convicted and sentenced to 2,630 days in federal prison and for bringing this habeas action to challenge those convictions and sentence. This is a patent violation of Section 1302(a)(3) of the ICRA and a transparent attempt by the Tribe to evade federal review. Because the banishment proceedings are criminal in nature, this Court has the power to review pursuant to Section 1303 in the form of habeas relief. IX. THE TRIBE INFLICTED CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE INDIAN CIVIL RIGHTS ACT 25 U.S.C. 1302(A)(7)(A) BY PERMANENTLY BANISHING PETITIONER. Concise Statement of Facts in Support of Claim IX. The Tribe, in exercising its powers of self-government, inflicted cruel and unusual punishment on Petitioner when it subjected him to another Tribal Court proceeding, related to the same events and circumstances of Petitioner s original underlying criminal conviction, and permanently banished him from the Kewa Pueblo. Section 1302(a)(7)(A) of the ICRA states in pertinent part, No Indian Tribe in exercising powers of self-government shall... inflict cruel and unusual punishments. The banishment and/or denaturalization of Petitioner from his native 19

20 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 20 of 22 culture, traditions, religion, language, homeland, family, and friends constitutes cruel and unusual punishment as prohibited by Section 1302(a)(7)(A). The Supreme Court has long recognized that a deprivation of citizenship is an extraordinarily severe penalty with consequences that may be more grave than consequences that flow from conviction for crimes. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, (2d Cir. 1996) (citing Klapprott v. United States, 335 U.S. 601, , 93 L. Ed. 266, 69 S. Ct. 384 (1949)). Banishment is a form of punishment that is more primitive than torture for it destroys for the individual the political existence that was centuries in development. Trop v. Dulles, 356 U.S. 86, 104 (1958). In Dear Wing Jung v. United States, the court held that the condition of banishment in lieu of imprisonment may constitute a cruel and unusual punishment or denial of due process and is therefore unconstitutional. 312 F.2d 73, (9th Cir. 1962). In that case, the trial court offered to suspend a criminal defendant s sentence on the condition that he leave the country. Id. at 75. The Ninth Circuit reasoned that it made no difference that the condition was a choice. Id. at 76. The Ninth Circuit held that this condition was the equivalent of banishment as it would leave the defendant with no way to re-enter the country after departure because of his immigration status. Id. Therefore, the condition was unconstitutional. Here, the Tribal Court has inflicted cruel and unusual punishment on Petitioner in violation of Section 1302(a)(7)(A) of the ICRA. This case is similar to Dear Wing Jung. In that case, the trial court offered to suspend the defendant s sentence if he left the country. 312 F.2d at 75. Here, the Tribal Court vacated Petitioner s sentence and conviction, but then imposed the punishment of banishment. In lieu of imprisonment, the Tribal Court inflicted banishment. The Tribal Court acted in bad faith when it vacated Petitioner s conviction and sentence because its motive was to avoid 20

21 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 21 of 22 federal review. Upon information and belief, the Tribal Court then imposed its punitive banishment on Petitioner, using his underlying criminal conviction for its basis. As the Ninth Circuit in Dear Wing Jung held that banishment was unconstitutional, so should the Court in this case find that it violates ICRA. CONCLUSION WHEREFORE, Petitioner respectfully requests that this Court find that all claims before the court have been exhausted or meet the exception for exhaustion, review his Petition for Writ of Habeas Corpus pursuant to 25 U.S.C and issue an Order: 1) Finding that the convictions dated June 7, 2017, are invalid and in violation of the Indian Civil Rights Act; 2) Finding the conviction and banishment on or about November 14, 2018, are invalid and in violation of the Indian Civil Rights Act, and; 3) Issuing the Writ of Habeas Corpus directing Respondent Thomas Moquino to vacate the banishment imposed on Petitioner, and; 4) Order relief to include prohibition against further prosecution. 5) In the alternative, Order an expedited evidentiary hearing on the merits, and; 6) Grant any other further relief that this Court deems just and proper. Respectfully submitted this 20th day of November 2018, _/S/ Barbara Creel Barbara Creel, Director & Supervising Attorney Southwest Indian Law Clinic UNM School of Law MSC Albuquerque, New Mexico Attorney for Petitioner 21

22 Case 1:18-cv LTB Document 10 Filed 11/20/18 USDC Colorado Page 22 of 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of November 2018, I filed the foregoing First Amended Petition for Writ of Habeas Corpus and Attachment electronically through the CM/ECF system, and served the parties of record through that system and Via First Class U.S. Mail addressed as follows: Lt. Tad High Hawk, Acting Warden c/o Chief Ignacio Justice Center P.O. Box 329 Towaoc, CO t: (303) Respondent Robert Troyer 1801 California Street, Ste Denver, CO (303) robert.trover@usdoj.gov Attorney for Respondent High Hawk Thomas Moquino, Governor of Kewa Pueblo Pueblo of Santo Domingo Tribal Court P.O. Box 279 Santo Domingo Pueblo, NM tmoquino@kewa-nsn.us Respondent /S / Barbara Creel Barbara Creel Attorney on behalf of Petitioner 22