Alvarez v. Tracy, No. 12-15788 (9th Cir. 2014)
Annotate this CasePetitioner, an enrolled member of the Gila River Indian Community, appealed the district court's denial of his petition for a writ of habeas corpus. The court concluded that petitioner failed to exhaust his claims, and failed to show that the unavailability or futility of direct appeal excuses the exhaustion requirement. Further, petitioner has not shown that the Community's appeals process did not comply with the Indian Civil Rights Act (ICRA), 25 U.S.C. 1303. The court concluded that its application of the exhaustion rule is consistent with Wood v. Milyard and Granberry v. Greer. Comity and tribal self-government concerns warrant application of the doctrine, despite the Community's failure to raise the direct appeal issue. Accordingly, the court affirmed the judgment.
Court Description: Habeas Corpus. The panel affirmed the district court’s denial of a habeas corpus petition brought pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303 (ICRA), and 28 U.S.C. § 2241, in which Fortino Alvarez challenged convictions and sentences imposed by the Gila River Indian Community tribal court. The panel declined to exercise jurisdiction over Alvarez’s claims and affirmed the denial of the habeas petition because Alvarez failed to exhaust his claims by bringing them first to the tribal courts, and did not demonstrate that unavailability or futility of direct appeal excuses the exhaustion requirement or that the Community’s appeals process did not comply with the ICRA. Although the Community failed to raise Alvarez’s lack of direct appeal in its motion to dismiss, the panel considered the defense under Wood v. Milyard, 132 S. Ct. 1826 (2012), and Granberry v. Greer, 481 U.S. 129 (1987), and concluded that the strong comity and judicial efficiency interests at stake warrant federal abstention. Dissenting, Judge Kozinski wrote that the majority does not live up to its solemn responsibility to appear impartial, when it forgives the Community, which was represented by counsel, for failing to raise an exhaustion defense in district court or on appeal, but holds Alvarez to his single oversight of failing, while unrepresented before the Community court, to raise his jury trial and confrontation claims by way of a direct appeal. On the merits, Judge Kozinski would find that the Community violated Alvarez’s right to a jury trial under ICRA by failing to inform him that he needed to request a jury, a structural error fatally undermining the conviction.
The court issued a subsequent related opinion or order on August 30, 2016.
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