and Submitted April 15, 2013 San Francisco, California
from the United States District Court for the District of
Arizona No. 2:08-cv-02226-DGC David G. Campbell, District
L. Kaplan (argued) and Keith J. Hilzendeger, Assistant
Federal Public Defenders; Jon M. Sands, Federal Public
Defender; Office of the Federal Public Defender, Phoenix,
Arizona; for Petitioner-Appellant.
L. Murphy (argued), Deputy General Counsel; Linus Everling,
General Counsel; Gila River Indian Community Office of the
General Counsel, Sacaton, Arizona; for Respondent-Appellee.
Barbara Creel, Professor of Law and Director of Southwest
Indian Law Clinic, University of Mexico School of Law,
Albuquerque, New Mexico; Tova Indritz, Co-Chair, Native
American Justice Committee, National Association of Criminal
Defense Lawyers, Albuquerque, New Mexico; for Amicus Curiae
National Association of Criminal Defense Lawyers and Barbara
Before: Alex Kozinski, Diarmuid F. O'Scannlain, and N.
Randy Smith, Circuit Judges.
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 which the panel, in the new
opinion, reversed the district court's denial of a
federal habeas petition brought by Fortino Alvarez, an
enrolled member of the Gila River Indian Community, who
sought relief from his tribal-court conviction.
the Indian Civil Rights Act (ICRA), Indian tribes may not
deny criminal defendants facing imprisonment "the right,
upon request, to a trial by jury." Alvarez sought habeas
relief on the theory that the Community deprived him of that
right by failing to inform him that he would only receive a
jury upon request.
reviewing new information presented in Alvarez's petition
for panel rehearing and the parties' supplemental briefs,
the panel concluded that the Community deliberately waived
any non-exhaustion defense stemming from Alvarez's
failure to file a direct appeal. That waiver precluded the
panel from raising non-exhaustion sua sponte.
panel did not need to resolve whether the jury-trial rights
accorded by ICRA and the Sixth Amendment are equivalent.
Assuming that the balancing test in Randall v. Yakima
Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988),
applies, the panel concluded that Alvarez's interests in
understanding the full contours of his rights outweigh any
interests the Community might have here. The panel wrote that
the Community's handling of Alvarez's case falls
short of the "fair treatment" required by ICRA,
which includes the right to know that he would forfeit his
right to a jury unless he affirmatively requested one.
the denial of the right to a jury trial is a structural
error, it requires automatic reversal, and the panel remanded
to the district court with instructions to grant the petition
for a writ of habeas corpus.
concurring opinion, Judge Kozinski wrote that this appeal
gives no occasion to consider a rat's nest of problems
with the Community's justice system. He wrote that
perhaps the Community and others like it will take this
opportunity to reconsider the dubious procedures they employ
in their criminal courts.
O'Scannlain concurred in the court's determination
that the Community deliberately waived its non-exhaustion
defense. He dissented from the court's conclusion that
the Community denied Alvarez his "right, upon
request, to a trial by jury" when Alvarez never
requested a jury. He wrote that rather than analyze the scope
of Alvarez's jury-trial right under ICRA, the majority
applies an unmoored balancing test without giving a reason to
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.
KOZINSKI, Circuit Judge:
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.
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
was picked up by the Community police and charged with
assault, domestic violence, criminal threats, and misconduct
involving a weapon. According to the Community, Alvarez
received a "Defendant's Rights" form along with
the criminal complaint. The Defendant's Rights form said:
"You have the right to a jury trial." The form
didn't explain what Alvarez needed to do in order to
invoke that right.
group arraignment, the judge stated that Alvarez had been
informed of his rights. The judge then asked Alvarez if he had
any questions about those rights. He said that he didn't.
At a bench trial four months later, Alvarez represented
himself. He presented no evidence, no witnesses, no case, and
no closing argument. When the judge asked Alvarez whether he
wished to cross-examine the government's key witness,
Alvarez conceded that everything the witness had said was
true. Alvarez was convicted on all counts except making
criminal threats. He was sentenced to five years in prison.
the Indian Civil Rights Act (ICRA), tribes may not deny
criminal defendants facing imprisonment "the right, upon
request, to a trial by jury." 25 U.S.C. §
1302(a)(10). Alvarez sought federal habeas relief on the
theory that the Community had deprived him of that right by
failing to inform him that he would only receive a jury upon
request. See id. § 1303. The district court
denied relief after finding that Alvarez validly waived his
right to a jury trial by failing to request one.
not exercise jurisdiction over a habeas petition presenting
ICRA claims unless the petitioner has first exhausted his
tribal remedies. See Grand Canyon Skywalk Dev., LLC v.
'SA' NYU WA Inc., 715 F.3d 1196, 1200 (9th Cir.
2013). The exhaustion doctrine is rooted in our respect for
tribal sovereignty: We are loath to second guess a
tribe's handling of a criminal case unless and until the
tribe has had a fair opportunity to review the matter in its
own appellate courts. In order to protect tribal sovereignty,
we may raise the issue of non-exhaustion sua sponte
when the tribe fails to press that defense due to an
"inadvertent error." Day v. McDonough, 547
U.S. 198, 211 (2006). But we may not override a tribe's
"deliberate waiver" of its non-exhaustion defense.
Wood v. Milyard, 132 S.Ct. 1826, 1834 (2012);
see Day, 547 U.S. at 202. We have no discretion to
raise non-exhaustion on our own initiative when a tribe
"strategically withh[olds]" this defense,
"cho[oses] to relinquish it, " makes a
"deliberate decision to proceed straightaway to the
merits, " or "deliberately steer[s] the [court]
away from" the issue. Wood, 132 S.Ct. at
order to satisfy the exhaustion requirement, a criminal
defendant must pursue a direct appeal or show that such an
appeal would have been futile. See Jeffredo v.
Macarro, 599 F.3d 913, 918 (9th Cir. 2010). Alvarez
failed to pursue a direct appeal or show the appeal would
have been futile. However, the Community's response to
Alvarez's habeas petition didn't argue that this
failure presented an exhaustion problem. In our previous
opinion, we raised the non-exhaustion defense sua
sponte after concluding that there was "no
indication in the record that the Community deliberately
waived" it. Alvarez v. Tracy, 773 F.3d 1011,
1019 (9th Cir. 2014). After reviewing new information
presented in Alvarez's petition for rehearing and the
parties' supplemental briefs, we now conclude that there
is evidence of deliberate waiver.
response to Alvarez's habeas petition, the Community
argued that Alvarez did not exhaust because he failed to
pursue "a motion to correct his sentences" or
"a motion for commutation." The Community now admits
that its response to Alvarez's habeas petition "did
not raise the failure to take a direct appeal as an argument
in support of the nonexhaustion issue."
the Community filed its response to the habeas petition,
Alvarez filed a motion for leave to conduct discovery. He
sought permission to subpoena records and depose a witness
regarding the appeals system in the Community
courts. Alvarez explained that this discovery was
necessary "to address the defense of non-exhaustion
raised in the Community's Response." See Johnson
v. Gila River Indian Cmty., 174 F.3d 1032, 1036 (9th
Cir. 1999) (noting that the lack of a functioning appellate
court would render a direct appeal futile, negating any
non-exhaustion defense). In its response to this motion, the
Community noted that Alvarez's request for information
"relating to the processing of appeals" was
"premised on a misunderstanding of Respondent's
affirmative defense that Petitioner has failed to exhaust his
tribal court remedies." The Community again explained
that Alvarez's available remedies were "(1) a motion
for commutation of his sentence(s) or to correct his
sentences(s) [sic], or (2) filing a petition for writ of
habeas corpus in the Community Court." Alvarez then
withdrew his request for discovery due to the Community's
"clear indication that [it] is not arguing that Mr.
Alvarez failed to exhaust his claims by raising them in an
appeal to the Community court of appeals." At no point
did the Community ever seek to correct Alvarez's
interpretation of its response. We therefore conclude that
the Community's response to the discovery request was a
deliberate waiver of any non-exhaustion defense stemming from
Alvarez's failure to file a direct appeal.
conclusion that the Community waived this defense is
buttressed by the fact that the Community "deliberately
steered" us away from the issue of the direct appeal.
Wood, 132 S.Ct. at 1835. When asked to address
exhaustion at argument before us,  the Community's lawyer
first insisted that the district court clearly erred by
finding that it would have been futile for Alvarez to seek a
commutation of his sentence or tribal habeas. When asked to
expand on his argument, the lawyer again emphasized that
"Alvarez never attempted to use any of the mechanisms
that were specified in the record below." According to
the lawyer, these remedies "included commutation"
and "a habeas proceeding." When we asked about the
possibility of a direct appeal, the Community's lawyer
referred us yet again to "the mechanisms that were
identified in the motion to dismiss." Those mechanisms
didn't include a direct appeal. The lawyer's dogged
insistence that we focus on commutation and tribal habeas
"deliberately steered" us away from any discussion
of the direct appeal. Id. That steering amounts to
intentional waiver, which in turn precludes us from raising
non-exhaustion sua sponte. See id.
ICRA, "[n]o Indian tribe in exercising powers of
self-government shall . . . deny to any person accused of an
offense punishable by imprisonment the right, upon
request, to a trial by jury." 25 U.S.C.
§1302(a)(10) (emphasis added). The parties debate at
length whether the jury-trial right accorded by ICRA
parallels the jury-trial right accorded by the Sixth
Amendment. If the rights are "the same, " then we
would employ federal constitutional standards when
determining whether or not the Community violated
Alvarez's rights under ICRA. Randall v. Yakima Nation
Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988); see
also Howlett v. Salish & Kootenai Tribes of the Flathead
Reservation, Mont., 529 F.2d 233, 238 (9th Cir. 1976).
But "[w]here the tribal court procedures under scrutiny
differ significantly from those commonly employed . . .
courts weigh the individual right to fair treatment against
the magnitude of the tribal interest . . . to determine
whether the procedures pass muster under" ICRA.
Randall, 841 F.2d at 900 (internal citation and
quotation marks omitted). This balancing test reflects a
"compromise intended to guarantee that tribal
governments respect civil rights while minimizing federal
interference with tribal culture and tradition." Robert
J. McCarthy, Civil Rights in Tribal Courts: The Indian
Bill of Rights at Thirty Years, 34 Idaho L. Rev. 465,
not resolve whether the jury-trial rights accorded by ICRA
and the Sixth Amendment are equivalent. Assuming that
Randall's less rigorous balancing test applies,
we conclude that Alvarez's interests in understanding the
full contours of his rights outweigh any interests the
Community might have here. Indeed, the Community's
handling of ...