As expected, given the denial in Cavanaugh. Here is today’s order (Shavanaux is on page 4).
Here is our post on this question — how (and whether) federal courts may use uncounseled tribal court convictions for sentencing purposes. The cert petitions are here. OSG doesn’t publish cert opps for unpaid petitions, so if anyone has them, please send along.
Here they are:
11-7379 Cavanaugh Cert Petition
11-7731 Shavanaux Cert Petition
The Cavanaugh question presented (Cavanaugh is now represented by Alex Reichart of United States v. Lara fame):
Whether the United States Constitution precludes the use of prior, uncounseled, tribal court misdemeanor convictions as predicate convictions to establish the habitual offender element of Section 117?
The Shavanaux question presented:
Does the Constitution prevent the use of a prior, uncounseled tribal court conviction that received a term of imprisonment to establish an element of the offense?
Here are the Cavanaugh lower court materials. And here are the Shavanaux lower court materials.
There is no circuit split, as far as we can tell. As such, it seems pretty unlikely these petitions will be granted. As we’ve said here, the Ninth Circuit does not appear to have weighed in on the question. Both petitions argue that the CA9 decision in United States v. Ant (882_F.2d_1389) furnishes the desired circuit split. It’s not clean, in that Ant’s tribal court conviction was a guilty plea used as a confession in federal court, not a conviction in a prior case used under Section 117 to establish facts for a habitual offender sentence enhancement. That said, who knows? We’ll see how the government handles it.
H/t Indianz.
Turtle Talk 