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

RON LOPEZ,* Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, ORDER AND Respondent-Appellee. OPINION

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 August 30, 2016

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

* Ron Lopez succeeded Randy Tracy as Chief Administrator. We substitute him for Tracy pursuant to Federal Rule of Appellate Procedure 43(c)(2). Opinion by Judge Kozinski; Concurrence by Judge Kozinski; Partial Concurrence and Partial Dissent by Judge O’Scannlain

SUMMARY**

Habeas Corpus

The panel granted a petition for panel rehearing; withdrew an opinion and dissent filed December 8, 2014; filed a new opinion and dissent; and denied a petition for rehearing en banc as moot in a case in…

Concurrence by

Partial Concurrence and Partial Dissent by Judge O’Scannlain

ORDER

The petition for panel rehearing is GRANTED. The opinion and dissent filed on December 8, 2014 and published at 773 F.3d 1011 are withdrawn. They are replaced by the new opinion and dissent filed concurrently with this order. The pending petition for rehearing en banc is DENIED as moot. The parties may file new petitions for panel rehearing or rehearing en banc within 14 days.

OPINION

We consider whether an Indian tribe violated a criminal defendant’s rights by failing to inform him that he could receive a jury trial only by requesting one.

FACTS

Fortino Alvarez is an enrolled member of the Gila River Indian Community (the “Community”). In April of 2003, Alvarez (then 20) showed up drunk at the home of his girlfriend (then 15). Following a brief argument, Alvarez struck his girlfriend with a flashlight. When she attempted to retreat, Alvarez pulled a knife. The girlfriend’s brother then stepped outside to confront Alvarez. Alvarez clubbed him too. Alvarez then took his leave, but not before informing his victims that he would soon return to kill their entire family.

Alvarez was picked up by…

concurring in part and dissenting in part:

I concur in the court’s determination that the Gila River Indian Community deliberately waived its non-exhaustion defense. I respectfully dissent, however, from the court’s conclusion that the Community denied Fortino Alvarez his “right, upon request, to a trial by jury” when Alvarez never requested a jury. Rather than analyze the scope of Alvarez’s jury-trial right under the Indian Civil Rights Act, the majority simply applies an unmoored balancing test without giving a single reason to do so.

I

As the majority recounts, in 2003 Forti-no Alvarez struck his girlfriend with a flashlight, threatened her with a knife, hit her brother with the flashlight, and threatened to kill the whole family. The Community charged him with various crimes. Prior to a group arraignment, Alvarez received a copy of the Community’s criminal complaint with a “Defendant’s Rights” form attached. The Defendant’s Rights form included the statement: “You have the right to a jury trial.” The Community did not specifically notify Alvarez that he needed to request a jury trial. The rights were also read at the beginning of the group arraignment. At the arraignment,…