Fortino Alvarez v. Randy Tracy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FORTINO ALVAREZ, No. 12-15788 Petitioner-Appellant, D.C. No. v. 2:08-cv-02226-

DGC

RANDY TRACY, Acting Chief Administrator for the Gila River Indian Department of Rehabilitation OPINION and Supervision, Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted April 15, 2013—San Francisco, California

Filed December 8, 2014

Before: Alex Kozinski, Diarmuid F. O’Scannlain, and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith; Dissent by Judge Kozinski SUMMARY*

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…

Opinion by Judge N.R. Smith; Dissent by Judge Kozinski.

OPINION

A petitioner’s failure to exhaust a claim brought under the Indian Civil Rights Act (the “ICRA”), 25 U.S.C. § 1303 , does not deprive the federal court of subject matter jurisdiction. Iowa Mid. Ins. Co. v. LaPlante, 480 U.S. 9 , 16 n. 8, 107 S.Ct. 971 , 94 L.Ed.2d 10 (1987); Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1200 (9th Cir.2013); Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 948, 953 (9th Cir.1998). Nevertheless, exhaustion under the *1013 ICRA is a “prerequisite to a federal court’s exercise of its jurisdiction.” Grand Canyon, 715 F.3d at 1200 . Accordingly, we will not address a petitioner’s unex-hausted claims, unless the petitioner shows that one of the doctrine’s narrow exceptions applies. Jeffredo v. Macarro, 599 F.3d 913, 918 (9th Cir.2010); see also Selam, 134 F.3d at 954 ,

At the outset, we note that “Indian tribes occupy a unique status under our law.” Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 851 , 105 S.Ct. 2447 , 85 L.Ed.2d 818 (1985). They “are not bound by the United States Constitution in the exercise of their powers, including their judicial…

dissenting:

When we take the judicial oath of office, we swear to “administer justice without respect to persons, and do equal right to the poor and to the rich....” 28 U.S.C. § 453 . I understand this to mean that we must not merely be impartial, but must appear to be impartial to a disinterested observer. Today we do not live up to this solemn responsibility. Relying on a ground not raised by either party here or in the district court, we refuse to consider petitioner’s serious and, in my opinion, meritorious claims. This is only the latest indignity inflicted on a criminal defendant who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court. He’d have had a fairer shake in a tribunal run by marsupials.

I am troubled by the disparate way we treat the parties. Alvarez and the Community both failed to raise legal issues at the proper time and in the proper manner. Alvarez failed to raise…