--- Am. Tribal Law ----, 2021 WL 1571131 (Tulalip C.A.)
Only the Westlaw citation is currently available.
Tulalip Tribal Court of Appeals.
Dwight CASADY, Petitioner
The TULALIP TRIBES, et al., Respondents
APPEAL NO. TUL-CV-AP-2020-0762
April 13, 2021
FILED APRIL 20, 2021
TRIBAL COURT NOS. TUL-CR-AL-2019-0530; TUL-CR-MC-2019-0925
Petitioner Dwight Casady sought a Writ of Habeas Corpus alleging that his confinement resulted from denial of a series of rights under the Tulalip Constitution and laws and under the Indian Civil Rights Act, 25 U.S.C. 1302 (ICRA).
Petitioner had pled guilty to, and was convicted of, a violation of Hit and Run Attended (TTC 3.60.010) on December 19, 2019 in the Tulalip Tribal Court. He was sentenced to confinement of 364 days, with 362 suspended, a fine of $5000, with $4500 suspended, and other non-material penalties. He was granted probation during the suspended jail time on conditions of compliance with certain conditions. He did not appeal his conviction or sentence.1 He was arrested on a warrant alleging violation of his probation conditions. A hearing to revoke his probation was held in the Tulalip Tribal Court on September 8, 2020. Petitioner admitted the violation of his probation, and offered testimony in mitigation of the imposition further jail time. In particular, Mr. Casady believed that his first probation violation should not result in imposition of the full amount of jail time that had been suspended. After considering all of the testimony and other evidence, the Tribal Court found that Petitioner had violated the terms of his probation and revoked Petitioner’s probation. The Tribal Court imposed the previously suspended confinement of 362 days, waived the balance of the unpaid fine, and continued Court supervision of the case. Petitioner moved for reconsideration, which was denied. He did not appeal his probation revocation.
On December 14, 2020, the Tribal Court filed three documents received from Petitioner, variously described as (1) Order of Motion to Dismiss and Immediately Release from Custody: For Post-Conviction Relief 28 U.S.C. 2255, (2) Order of Motion to Dismiss and Immediately Release from Custody as a Personal Restraint Petition under Washington R. App. D. 164(2)(C)(2)-(6), and (3) a six page letter in the form of a brief on the facts and law. Mr. Casady alleged violations of federal and Washington Constitution and laws and statutes and of the Navajo Nation and the Navajo Code during the probation revocation hearing. Petitioner did not have the assistance of legal counsel at any time during the proceedings in this Court, and it appears that he did not have substantial access to a law library or the internet to assist him in his writing these pleadings.
TTC 2.05.030(b)-(d) directs the Tulalip Justice system, of which this Court is a part, to construe the Tulalip Tribal Code to achieve these general goals: “... (b) To provide for the just determination of every criminal proceeding; (c) To protect the rights of individuals; (d) To secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay; ...’’(emphasis added). Thus the Tulalip Courts are required to do justice even though a litigant, such as Petitioner, does not use language that law trained advocates, judges and staff would use ... Petitioner’s filings, although not stated in the words of the Tulalip Habeas Corpus Ordinance, can be fairly construed as a Petition for Habeas Corpus under TTT 2.05.25 070(6). Accordingly a Writ of Habeas Corpus was issued commanding the Tulalip Tribes to respond to Petitioner’s allegations. A Response was filed and Petitioner Replied. Oral argument was held at which both the Petitioner and the Tribes participated.
II. THE TULALIP HABEAS CORPUS ORDINANCE
TTC 2.25.070(6) is the Tulalip Ordinance governing the Writ of Habeas Corpus. Of particular relevance here are the portions in bold face:
(6) Writ of Habeas Corpus.
(a) Availability of Writ.
(i) Except as provided in subsection (6)(a)(ii) of this section, every person within the jurisdiction of the Tulalip Tribes imprisoned or otherwise restrained of liberty may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from imprisonment or restraint.
(ii) The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense by a court of competent jurisdiction and has exhausted the remedy of appeal, nor is it available to attack the legality of an order revoking a suspended or deferred sentence. Moreover, a person may not be released on a writ of habeas corpus due to any technical defect in commitment not affecting the person’s substantial rights.
(b) - (h) omitted.
Subsection (6)(a)(i) states the general rule that a Writ of Habeas Corpus is available to every person whom the Tulalip Tribes has imprisoned or whose liberty the Tribes has restrained. Petitioner meets this standard.
Subsection (6)(a)(ii) then limits the situations in which a restrained person may obtain a Writ of Habeas Corpus. Written in the negative, it prohibits a restrained person, like Petitioner, from seeking this Writ if they have not appealed their conviction. While on its face this absolute bar is harsh, there are circumstances, not present here, when a Petitioner may seek a Writ when, for example, the grounds for the Writ were not known at the time of conviction and appeal.2 All of the grounds for the Writ listed by Petitioner Casady were known or easily knowable at the time of his conviction, and could have formed the basis for an appeal. Put succinctly, a Writ of Habeas Corpus is not a substitute for an appeal.
Although Petitioner Casady listed a series of alleged violations of rights he is guaranteed under the Tulalip Constitution and laws, and the ICRA, throughout the briefing he failed to present either facts or law in support of his alleged Constitutional or statutory violations. Indeed, Mr. Casady’s central objection to the revocation of his probation, as he presented it at oral argument, was that his full suspended sentence was improperly revoked as a result of only a single violation of the conditions of his probation. While his resentment is understandable, this is a classic example of an alleged error that could and should be the subject of an appeal, which Mr. Casady did not file.
As a separate and alternative ground for dismissing the Writ, Petitioner Casady is prohibited from seeking a Writ of Habeas Corpus by this clause in Subsection (6)(a)(ii): “... nor is it [Writ of Habeas Corpus] available to attack the legality of an order revoking a suspended or deferred sentence.” Although the Tribal Court Order is styled an Order on Probation Hearing it clearly re-imposes a sentence which had been suspended only if Petitioner complied with the conditions of probation and thus this clause also prohibits the Writ that Petitioner seeks. His failure to set out specific facts and law in support of his bare allegations of denial of his rights makes it unnecessary to examine whether there are any exceptions to this bar to seeking a Writ of Habeas Corpus.
For the foregoing reason(s) the Writ of Habeas Corpus issued in this matter is DISMISSED, and the Tribal Court Order revoking Petitioner Casady’s Probation is AFFIRMED.
/s/ Daniel A. Raas
Daniel A. Raas, Chief Justice
/s/ Matthew L.M. Fletcher
Matthew L.M. Fletcher, Associate Justice
/s/ Michael E. Taylor
Michael E. Taylor, Associate Justice
Petitioner was tried and convicted of another offense at this trial. That offense and the subsequent punishment are not part of this Writ of Habeas Corpus.
This is not an exhaustive list of circumstances where a Writ of Habeas Corpus may be sought.