uncounseled tribal court convictions – Page 3

Ninth Circuit Briefs in Challenge to Use of Uncounseled Tribal Court Convictions in Federal Habitual Offender Statute

December 31, 2012December 31, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Bryant:

Bryant Opening Brief

US Appellee Brief [Bryant]

Bryant Reply

The CA8 and CA10 have rejected similar challenges, here.

Tenth Circuit Affirms Nambé Pueblo Tribal Court Conviction

May 11, 2012Matthew L.M. Fletcher2 Comments

Here is yesterday’s opinion in Romero v. Goodrich.

Briefs are here.

An excerpt:

Ronald F. Romero, an enrolled member of the Pueblo of Nambé, through counsel filed a petition for a writ of habeas corpus pursuant to 25 U.S.C. § 1303 to seek relief after a tribal court conviction. The district court dismissed Romero’s petition as moot after the Pueblo commuted Romero’s sentence to time served and released him from tribal custody. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Supreme Court Denies Cert in Shavanaux

March 19, 2012Matthew L.M. Fletcher

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.

Tenth Circuit Briefs in Appeal of Nambé Pueblo Tribal Court Sentence of Nine Years (without Counsel)

January 31, 2012Matthew L.M. Fletcher1 Comment

Here are the opening briefs in Romero v. Goodrich:

Romero Opening Brief

Nambe Pueblo Brief

Here are the lower court materials.

Cavanaugh and Shavanaux Cert Petitions: Challenges to Use of Uncounseled Tribal Court Convictions in Federal Sentencing

December 15, 2011Matthew L.M. Fletcher4 Comments

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.

Tenth Circuit Considers Prior Tribal Court Convictions in Sentence Enhancement Case

December 1, 2011December 1, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Romero.

The underlying conviction was for assaulting a Bureau of Indian Affairs corrections officer.

An excerpt:

Mr. Romero argues that the district court should not have considered his 2003 tribal court conviction because he pled guilty without the assistance of counsel. He fails, however, to develop this argument. He cites no case holding that a district court is precluded from considering a defendant’s prior, uncounseled tribal court convictions in its departure analysis, and in fact, our precedents do not support his contention. Cf. United States v. Concha, 294 F.3d 1248, 1253-54, 1255 (10th Cir. 2002) (upholding district court’s consideration of criminal conduct underlying uncounseled foreign convictions in departure analysis); United States v. Wyne, 41 F.3d 1405, 1409 n.5 (10th Cir. 1994) (disapproving of another circuit’s reversal of upward departure on basis that misdemeanor convictions were uncounseled).

More on Uncounseled Tribal Court Convictions

July 27, 2011Matthew L.M. Fletcher3 Comments

Recently, two federal circuits — the Eighth and the Tenth — have affirmed trial courts’ use of uncounseled tribal court convictions to increase prison sentences under the federal habitual offender statute (18 U.S.C. § 117). The cases are Cavanaugh and Shavanaux.

Both circuits reversed trial court decisions ruling that the portion of § 117 allowing the use of uncounseled tribal court convictions for sentencing purposes was unconstitutional. Both circuits held that since the uncounseled tribal court conviction did not violate either the U.S. Constitution (under Talton v. Mayes) or the Indian Civil Rights Act (which does not require tribes to provide indigent defendants paid counsel), the tribal court convictions were valid.

Frankly, I’m surprised, and to a considerable extent pleased. I’m pleased that the federal courts are so deferential to tribal courts as a matter of comity. I’m surprised because there is some federal constitutional infirmity in using such convictions to enhance a federal sentence, though apparently not enough to trouble these circuits. Both courts agree that the uncounseled convictions could not be used to prove an element of a federal offense, for example.

Conceivably, both could be reversed en banc, assuming petitions for rehearing are filed (especially, the CA8 decision, where the panel was split). There’s no circuit split … yet … though it seems at least possible that Ninth Circuit or another circuit would come out the other way in the next 5, 10 years.

One possible outcome, even if the Supreme Court never reviews these cases, is a big impact on tribal court criminal justice. More and more tribal defendants will, the theory goes, refuse to plea bargain given these cases. Regardless, the need for full-scale tribal public defender offices grows daily.