United States District Court, D. Arizona.

Sherwin JOHNSON, Petitioner,

v.

Randy TRACY, Chief Administrator, Gila River Indian Community Department of Rehabilitation and Supervision, Respondent.

No. CV 11?1979?PHX?DGC (DKD).

Aug. 10, 2012.

REPORT AND RECOMMENDATION

DAVID K. DUNCAN, United States Magistrate Judge.

*1 TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

Sherwin Johnson, who is confined in the Gila River Indian Community Department of Rehabilitation and Supervision in Sacaton, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ? 2241 and 25 U.S.C. ? 1303, the Indian Civil Rights Act (ICRA). Johnson raises nine grounds for relief, alleging that the Gila River Indian Community (the Community) violated the Tribal Law and Order Act (TLOA), an amendment to the ICRA, which became effective in 2010. He argues that the Community violated the TLOA as follows: (1) the trial and appellate judges lacked the statutorily required qualifications; (2) the trial court failed to maintain a complete record of the trial proceedings; (3) the trial court failed to provide Johnson with reasonable access to a record of the trial and sentencing and to the rules of procedure during his appeal; and (4) the jury did not find all the facts necessary to subject Johnson to more than one year of imprisonment. After the Community filed its response to the petition, in which it argued that the TLOA should not be retroactively applied to Johnson's case, Johnson filed a motion which also asserted “that the Tribal Law and Order Act should not be applied retroactively” because his trial and sentencing both occurred after the Act became effective (Doc. 12). What Johnson seems to be arguing is that there is no “retroactive” application because his trial and sentencing occurred after the Act was law. The Court will recommend that Johnson's petition be denied and dismissed with prejudice.

BACKGROUND

On June 14, 2010, Johnson was arraigned in the court for the Gila River Indian Community Judicial Branch (the Community Court) on charges of Unlawful Restraint in violation of Community Code ? 5.408 .A, Sexual Abuse in violation of Community Code ? 5.817.A, and Assault in violation of Community Code ? 5.402.A1 (Doc. 14 at 8). The threecount complaint alleged that Johnson held the victim's hands above her head, pinned her down on the couch, grabbed her breasts, rubbed her vaginal area, and rubbed chili on her face (Id . at 5). The victim, a witness, and the responding police officer testified at the November 15, 2010 jury trial, and were cross-examined by Johnson's legal advocate. Johnson was convicted by a jury of all the charged offenses. On December 16, 2010, the Community Court sentenced Johnson as follows:

Count 1, Unlawful Restraint?120 days probation, to run consecutively to any probation term previously imposed by the Community Court;

Count 2, Sexual Abuse?365 days detention to run consecutively to any sentence of detention for any other count in the same case and consecutive to any other Community Court sentence previously imposed;

Count 3, Assault?365 days detention to run consecutively to any sentence of detention for any other count in the same case and consecutive to any other Community Court sentence previously imposed.

*2 (Doc. 1 at 4). The sentences for the above three counts total two years of imprisonment followed by 120 days of probation. Johnson's scheduled release date is July 28, 2014. Johnson filed an appeal with the Community Court of Appeals on January 4, 2011. He filed his federal petition on October 11, 2011. The court of appeals affirmed the verdict of the tribal court on June 18, 2012 (Doc. 15).

DISCUSSION

The Community argues in its response that Johnson has not exhausted his tribal remedies because his appeal was still pending when the Community filed the response. The Court acknowledges that exhaustion of tribal court remedies is important to the “federal policy of promoting tribal self-government.” Iowa Mut. Ins. Co. v.. LaPlante, 480 U.S. 9, 16?17 (1987). A federal court should therefore “stay[ ] its hand until after the Tribal Court has had a full opportunity ... to rectify any errors it may have made.” National Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 857 (1985). “At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.” Iowa Mut. Ins. Co., 480 U.S. at 17. Although Johnson had not exhausted his tribal remedies prior to filing his habeas petition, his appeal is now final, and the Court will consider the merits of Johnson's claims.

In his first three grounds, Johnson argues that his trial and sentencing violated the TLOA because the trial and appellate judges lacked the statutorily required qualifications. The pertinent sections of the TLOA, which became effective July 29, 2010, 45 days after Johnson was arraigned, require that in a criminal proceeding in which an Indian tribe imposes a total term of imprisonment of more than one year on a defendant, the Indian tribe shall require that the judge presiding over criminal proceedings in tribal court have “sufficient legal training to preside over criminal proceedings” and be “licensed to practice law by any jurisdiction in the United States.” 25 U.S.C. ? 1302(c)(3)(A), (B). Johnson argues that because he received a total term of imprisonment of more than one year, the Community was required to have the presiding judge meet the statutory qualifications. He seems to argue that because the judges lacked the statutory qualifications, his sentence should be reduced from two years to one year.

Prior to the amendment of the ICRA by the TLOA, Indian tribes could sentence a defendant to a maximum of one year per offense but it was permissible for tribes to impose consecutive sentences for multiple offenses which would cumulatively exceed one year. Such sentences did not require that the tribes provide the rights prescribed by the TLOA which Johnson relies upon in his habeas potation. See Bustamante v. Valenzuela, 715 F.Supp.2d 960 (D.Ariz.2010). Johnson's arguments in his petition presume a retroactive application of the TLOA. The Court agrees with the Community that a retroactive application could create an ex post facto problem, making it unconstitutional. See Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 948 (9th Cir.1998), overruled on other grounds, United States v. Enas, 255 F.3d 662, 675 (9th Cir.2001). “Generally, there is an ex post facto violation when a law punishes as a crime an act which was not a crime when committed, increases the punishment for a crime after its commission, or deprives a defendant of a defense available at the time the act was performed.” Means, 154 F.3d at 947. Whether the effect of the TLOA is deemed to increase the punishment (by increasing the permissible sentence from one year to three) or take away a defense (because jurisdiction exists where it did not before), applying the Act to conduct which occurred before the law was effective would violate the Ex Post Facto Clause of the United States Constitution. If Johnson is arguing that there is no ex post facto problem because his trial and sentencing occurred after the TLOA became effective, that argument cannot stand because the constitutional analysis turns on the law that was in effect when the offense was committed. See Means, 154 F.3d at 547.

*3 Applying the TLOA retroactively could also result in ameliorative criminal legislation, in violation of the Savings Clause. See United States v. Breier, 813 F.2d 212 (9th Cir.1987). The Court recommends that the Court not apply the TLOA retroactively and that his first three (as well as all nine of claims) raised in his petition be dismissed.

In claims four and five, Johnson argues that his trial and sentencing violated the TLOA because the Community failed to maintain a complete record of the trial proceedings. Section 1302(c) (5) provides that in a criminal proceeding in which an Indian tribe imposes a total term of greater than one year, the tribe must “maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.” Johnson argues that because the record does not include side bar discussions, and because the Community's closing argument is largely inaudible, it violates the TLOA. For the reasons stated above, the Court agrees that the TLOA should not be applied retroactively to Johnson's case, and therefore these claims should be dismissed. In any event, Johnson cannot point to any specific errors alleged to have occurred during the unrecorded portions to support a claim that the absence of a complete transcript requires a new trial. Bergerco, U.S.A. v. Shipping Corporation of India, Ltd., 896 F.2d 1210 (9th Cir.1990).

In claims six, seven and nine, Johnson argues that the trial and sentencing violated the TLOA because the Community failed to provide Johnson with reasonable access to a record of the trial and sentencing, and to the criminal code and rules of procedure, while he was prosecuting his appeal. Section 1302(c)(4) provides that the governing codes and rules of procedure be made publicly available to a defendant prior to charging the defendant. For the reasons stated above, the Court agrees that the TLOA should not be applied retroactively to Johnson's case, and therefore these claims should be dismissed. In any event, documents filed with the Court indicate that Johnson was eventually provided with a copy of the audio recordings through his wife on March 11, 2011, and directly to Johnson on September 22, 2011, and he was provided the means to listen to the recordings. See Doc. 14 at 31, 34. Finally, he never requested a copy of the criminal code or rules of procedure.

In claim eight, Johnson argues that his trial and sentencing violated the TLOA because the jury did not find all of the facts necessary to subject him to more than one year of imprisonment. Section 1302(b) provides that a tribal court can impose a term of one to three years if the defendant has previously been convicted of the same or a comparable offense or is being prosecuted for such an offense that would be punishable by more than one year if prosecuted by the United States or any one of the states. For the reasons stated above, the Court agrees that the TLOA should not be applied retroactively to Johnson's case, and therefore this claim should be dismissed.

*4 IT IS THEREFORE RECOMMENDED that Johnson's Petition for Writ of Habeas Corpus be denied and dismissed with prejudice (Doc. 1).

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have sevenFN1 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. ? 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have seven days within which to file a response to the objections. No extensions of time for filing such objections or response to objections will be granted by the Court. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna?Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.

FN1. In its discretion, the Court will shorten the time for filing of objections. See Tripati v. Drake, 908 F.2d 977 (9th Cir.1990) (the court need not afford the parties the full amount of time allotted for filing objections; the time allotted is a maximum, not a minimum).