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Darnell v. Merchant

United States District Court, D. Kansas

November 29, 2017

BOBBI DARNELL, Petitioner,
v.
JOHN MERCHANT, Sheriff, Brown County, Kansas, and KICKAPOO TRIBE IN KANSAS, Kickapoo Reservation, Horton, Kansas, Respondents.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Petitioner Bobbie Darnell, a member of the Kickapoo Tribe in Kansas (the “Tribe”), filed a Petition for Writ of Habeas Corpus pursuant to 25 U.S.C. § 1303 seeking relief from her tribal court convictions and sentence. Petitioner requests that the Court issue a writ of habeas corpus commanding her immediate release from jail in Brown County, Kansas, overturning her convictions in Kickapoo criminal cases numbers CRM016-11 and CRM016-23, and staying all further tribal court action against her (Doc. 1). In addition, Petitioner has filed a motion for release on her own recognizance (Doc. 25). As explained below, the Court denies the Petition for Writ of Habeas Corpus because Petitioner has not exhausted her tribal remedies. The Court further denies Petitioner's motion for release on her own recognizance as moot.

         I. Factual and Procedural Background

         Petitioner is a member of the Kickapoo Tribe in Kansas, a federally recognized Indian tribe in the State of Kansas. She is a lifelong resident of the Kickapoo Reservation, and before her incarceration, she resided there with her husband and two children. She also served as a member of the Kickapoo Tribal Council for more than 20 years.

         Petitioner was charged by the Tribe in two criminal cases, CRM016-24 and CRM016-11, with one count of fraudulent handling of recordable instruments, one count of tampering with records, and one count of misusing public money in violation of the Kickapoo Tribal Code, in each of the two cases. The Tribe alleged that Petitioner fraudulently handled and tampered with the Tribe's records, including tribal resolutions, to authorize the improper and fraudulent draw down of tribal funds. A jury trial in the Tribal District Court of the Kickapoo Tribe in Kansas was held on March 8-9, 2017.

         Before the court began jury selection, Petitioner's counsel objected to the jury instructions offered by the Tribe. The Tribe mailed its proposed jury instructions to Petitioner on February 28, 2017, although Petitioner's counsel claims that he did not find them in his mailbox until Friday, March 3. He also states that he filed Petitioner's objections to Tribe's instructions and a supporting memorandum on Sunday March 5, but that they were not filed stamped until the morning of March 6. The district judge denied Petitioner's motion in whole, stating that the alternative instructions that she offered were “remarkably similar with minor variations” to those proposed by the Tribe, that Petitioner did not provide her alternative instructions within the required time limits found in the Kickapoo Court Rules, and that the parties were able to compromise regarding the language in two of the instructions.

         Once trial began, the district judge selected the jury panel for voir dire by drawing names from a clear bowl. Petitioner's counsel questioned the potential jurors during voir dire. One potential juror stated that she had an ear piece and difficulty hearing. As a result, Petitioner's counsel challenged this juror for cause. The judge denied the motion because the juror stated that she could hear the judge when he spoke. The judge also stated that he would tell people to speak up if they mumbled during trial so the court reporter could make an adequate record. In addition, two prospective jurors employed at a casino run by the Tribe indicated that they feared losing their jobs if they were on the jury. In response, the judge told the prospective jurors that they could not be terminated because they served on a jury.

         Ultimately, Petitioner's counsel passed the entire panel for cause. But, after the jury was seated, her counsel objected to the jury arguing that it was tainted. Petitioner's counsel argued that several times he saw the judge draw a name out of the bowl and then put it back in and draw another one. The judge denied counsel's motion without any explanation at trial. However, in the Court Minute/Journal Entry filed twelve days later, on March 20, 2017, the judge explained the jury selection procedure. He explained that that the juror cards were stiff and would stick together and that he separated the cards when randomly selecting one. The district judge also noted that he rejected one juror who was not in the court because of terminal medical issues.

         During the trial, Petitioner's counsel reported to the court that Kickapoo Tribe Chairman Lester Randall and Vice Chairman Fred Thomas were observed in the jury room with at least four jury members. In response, the judge asked the bailiff if Chairman Randall spoke to the jurors in any way, and he responded that he was not aware of that occurring. The judge then asked the jury if anyone contacted them about the case. The jury responded “no.” The judge also asked the jury if they met with anyone or discussed the case with any person, and the jury responded “no.” The jury found Petitioner guilty on all six counts from both cases. The judge set a cash bond in the amount of $2, 500, which Petitioner was required to pay or remain in custody until her sentencing on April 24, 2017. Petitioner paid the bond and was released from custody. She did not file a motion for a new trial within the seven day time limit provided by the Kickapoo Nation Tribal Code.

         On Friday, March 31, 2017, the Kickapoo District Judge issued a warrant for Petitioner's arrest based on a Motion to Revoke and Forfeit Bond filed by the Tribe. In the motion, the Tribe asserts that Petitioner “has committed a new criminal act or otherwise criminally harassed and intimidated a member of the Kickapoo Tribal Council to-wit: Carla Cavin.” The motion is supported by Cavin's affidavit, in which she states that on March 30, Petitioner drove her vehicle at 75 miles per hour on Highway 20, preventing Cavin from passing her and forcing Cavin to drive in a no-passing zone. It further states that once Cavin passed Petitioner's vehicle, Petitioner tailgated her to the Kickapoo Reservation boundary. Petitioner admits that she drove on Highway 20 on March 30 but denies seeing Cavin, driving 75 miles per hour, and tailgating any vehicle to the Kickapoo Reservation boundary. As a result of the motion and Cavin's affidavit, Petitioner was arrested and taken to the Brown County jail.

         On April 7, 2017, Petitioner filed an Emergency Request for Release of Defendant or Further Hearing, with the Supreme Court of the Kickapoo Tribe in Kansas. One week later, on April 14, she filed her Petition for Writ of Habeas Corpus with this Court. Petitioner's Petition alleges that the Kickapoo Tribe District Court deprived her of her liberty without due process of law as required under the Indian Civil Rights Act (“ICRA”). Petitioner was held in Brown County jail from the time she was arrested on March 31 until her sentencing on April 24, 2017, and no hearing was held during this time.

         On April 24, 2017, the district judge held Petitioner's sentencing hearing. The initial presentence investigation report prepared by the probation officer recommended a prison term of 10 years. The probation officer subsequently amended the presentence investigation report to recommend a prison term of six years and that Petitioner be incarcerated in the Bureau of Indian Affairs (“BIA”) prison.

         During the sentencing hearing, the Tribe's special prosecutor first recommended that the presentence investigation report be adopted as written. He then advised the court that he had computed a new corrected prison sentence of 216 months. When questioned by Petitioner's counsel, the special prosecutor stated that he recommended 96 months for count one in each criminal case and six months each for counts two and three in each criminal case. Petitioner's counsel then informed the special prosecutor that the recommendation of 96 months for each count one was incorrect because it was based on a typo in the Kickapoo Nation Tribal Code, which states that the punishment for such crime shall be punishable for a term “not exceeding six 96) months.”[1] The special prosecutor acknowledged the typographical error in the Kickapoo Tribal Code, stating that he believed that the number nine was mistakenly typed instead of the open parenthetical. The judge agreed, stating that there cannot be a 96 month penalty in Tribal Court. For the first criminal case, the judge ultimately sentenced Petitioner to 18 months of incarceration on the three counts of conviction, and a fine of $500. For the second criminal case, the judge sentenced Petitioner to 22 months of incarceration[2] on the three counts of conviction, to run concurrently to the sentence from the first criminal case. In addition, the judge ordered Petitioner to pay daily incarceration fees to the Brown County jail from the time of incarceration until she was transported to prison and $75 in court costs. The judge did not give Petitioner credit for her time already served in the Brown County jail.

         After the judge issued the sentence, Petitioner's counsel asked him to advise her of her appeal rights. The judge stated “you have the right to appeal my sentence. You have the right to appeal . . . my sentence. You may do so. You have counsel. If you wish to have [indecipherable] on appeal, you can make the appropriate motion to request for that.” The special prosecutor also verbally advised Petitioner of her right, stating “Under 402(b) it says, ‘After imposing sentence, the Court shall inform the defendant of his right to appeal and if so requested shall direct the Clerk to file a notice of appeal on behalf of the defendant. After any- at any time after a notice of appeal is filed, the Court may entertain a motion to set bail pending appeal.” Petitioner did not file a notice of appeal with the Kickapoo Supreme Court. On May 4, 2017, she filed a Supplement to her Petition for Writ of Habeas Corpus. In her Supplement, Petitioner reasserted her claim that she was denied due process and equal protection of the law as required by ICRA. She also added a claim that she was subjected to cruel and unusual punishment in violation of ICRA. Petitioner requested that the Court issue a writ of habeas corpus commanding her immediate release from Brown County jail, overturn her criminal convictions, and stay all further tribal court action against her.

         After reviewing Petitioner's Petition and Supplement, the Court ordered Respondents to respond to Petitioner's request for immediate release by Monday, May 8, 2017. On Sunday May 7, the Kickapoo Supreme Court denied Petitioner's Emergency Request of Release of Defendant or Further Hearing with the Supreme Court of the Kickapoo Tribe in Kansas that she had filed one month before. Respondents have responded to the Petition and Supplement, and Petitioner has filed her Traverse. Therefore, the matter is ripe for the Court's consideration.

         III. Analysis

         Indian tribes are separate sovereigns that are not subject to the limitations and restrictions imposed by the United States Constitution.[3] Indeed, “[c]onstitutional provisions that limit federal or state authority do not apply to Indian tribes because the tribes retain powers of self-government that predate the Constitution.”[4] To protect the individual rights of tribal members, Congress enacted ICRA, which imposes restrictions on tribal governments and creates a statutory basis for civil rights.[5] Section 1302 of ICRA grants tribal members civil rights that are similar to those found in the Constitution's Bill of Rights, such as freedom of speech, due process, equal protection, and double jeopardy.[6]

         Although § 1302 of ICRA gives tribal members individual rights, it “does not provide a civil cause of action in federal court against tribal officials.”[7] The only way that a tribal member may seek relief for violations of § 1302 is by filing a petition for writ of habeas corpus under § 1303.[8] This section states: “The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.”[9]

         In this case, Petitioner asserts that the Tribe violated two provisions of § 1302. The first relevant provision states that “[n]o Indian tribe . . . shall deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.”[10] Petitioner argues that the Tribe denied her equal protection of the law and due process by sentencing her to the maximum amount of prison time allowed by statute, failing to give her credit for time served, and failing to give her a fair hearing on the issue of whether her bond conditions were violated when the district judge revoked her bond. The second relevant provision of § 1302 states that “[n]o Indian Tribe . . . shall require excessive bail, impose excessive fines, or inflict cruel and unusual punishments.”[11] According to Petitioner, the district judge's sentence amounts to cruel and unusual punishment because she was not given a due process hearing when her bond was revoked, the judge sentenced her to the maximum allowed statutory amount even though she has no prior criminal history, and the judge denied her probation.

         Respondents deny Petitioner's allegations and argue that the Court must deny Petitioner's Petition for Writ of Habeas Corpus. According to Respondents, the Court does not have subject matter jurisdiction over her Petition because she has not exhausted her tribal court remedies. In addition, Respondents argue that her allegations do not amount to violations of equal protection and due process under § 1302(a)(8) or cruel and unusual punishment under § 1302(a)(7)(A). Before addressing the merits of Petitioner's claims, the Court must determine whether she has exhausted her tribal court remedies.

         A. Exhaustion and § 1303

         ICRA does not expressly require a petitioner to exhaust her claims before filing a petition for writ of habeas corpus in federal court.[12] Nonetheless, federal courts, including the Tenth Circuit, impose an exhaustion requirement in habeas corpus cases filed under § 1303.[13] This requirement serves several purposes.[14] First, it “reinforces Congress's strong interest in promoting tribal sovereignty, including the development of tribal courts.”[15] Second, it supports “the orderly administration of justice in . . . federal court[s] . . . by allowing a full record to be developed in the [t]ribal [c]ourt before either the merits or any question concerning appropriate relief is addressed [in federal court].”[16] And third, an exhaustion requirement provides the tribal court “a full opportunity . . . to rectify any errors that it may have made.”[17]

         The tribal exhaustion rule is not absolute. The Supreme Court has stated that exhaustion of tribal remedies is not required where (1) “an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, ”[18] (2) the action “is patently violative of express jurisdictional prohibitions, ”[19] (3) “exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction, ”[20] (4) “[w]hen it is plain that no federal grant provides for tribal governance of nonmembers' conduct [on certain lands], ”[21] or (5) it's otherwise clear that the tribal court lacks jurisdiction so that the exhaustion requirement serves no other purpose than delay.[22] Allegations of local bias and tribal court incompetence, however, do not satisfy the exhaustion requirement.[23]

         Petitioner has not exhausted her tribal court remedies in this case. After the district judge filed the sentencing order, Petitioner never filed a notice of appeal to the Kickapoo Supreme Court.[24] But Petitioner contends that she does not have to exhaust her tribal remedies because she satisfies the exceptions to exhaustion set forth in Burrell. Specifically, Petitioner argues that the assertion of tribal jurisdiction was motivated by a desire to harass or was conducted in bad faith and that the assertion of tribal jurisdiction would be futile.

         1. Tribal Jurisdiction Motivated by a Desire to Harass or Conducted in Bad Faith

         Petitioner alleges myriad ways that the assertion of tribal jurisdiction was motivated by a desire to harass or conducted in bad faith. Specifically, she alleges that: (1) Chairman Randall threatened that he would make Petitioner pay for the Federal Bureau of Investigation (“FBI”) and BIA's investigations of his handling of tribal trading post funds;[25] (2) Chairman Randall sent four newsletters to Tribe members before trial to ensure that all members thought she was guilty; (3) the judge did not randomly select the jury; (4) Chairman Randall and Vice-Chairman Lester were seen in the jury room with members of the jury during trial; (5) the special prosecutor had Petitioner and her family followed during lunch recess on the first day of trial; (6) Chairman Randall was seen laughing in the courtroom after the jury returned its verdict; (7) the judge revoked her bond based on the affidavit of Carla Cavin and placed her in the Brown County jail without a hearing; (8) the probation officer and special prosecutor illegally recommended sentences of ten years and six years; (9) the district judge did not advise Petitioner of her right to appeal and did not give her credit for time served; and (10) the Kickapoo Supreme Court ignored Petitioner's emergency request for release after her bond was revoked. Respondents argue that these allegations merely amount to bias or tribal court incompetence and thus do not excuse Petitioner from the tribal exhaustion requirement.

         Several of Petitioner's allegations can be discarded outright, as they are irrelevant to the assertion of tribal jurisdiction or Petitioner's convictions. For example, Petitioner emphasizes throughout her briefs that the probation officer and special prosecutor recommended illegal sentences of ten years and six years in the presentence investigation report and amended presentence investigation report, respectively. The judge, however, did not adopt their sentencing recommendations. Instead, he sentenced Petitioner to 18 months in prison for the first case and 22 months in prison for the second case, with the sentences to run concurrently. These allegations relating to “illegal sentences” are therefore irrelevant to Petitioner's ultimate sentence. The Court also discards Petitioner's accusations that Chairman Randall sent newsletters to Tribe members to persuade tribe members that she was guilty, [26] that Chairman Randall was laughing in the courtroom after the ...


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