Monday, June 04, 2012

Romero v. Goodrich, 2012 WL 1632498 (5/10/12) (N.M.) (unpub'd) - The habeas petitioner challenging his Nambe tribal court convictions preserved his challenge to the convictions, rather than just the sentence, by requesting a new trial in tribal court, even though it sounded like he was complaining only about the length of the sentence [8 consecutive one-year sentences imposed without counsel]. But the case was moot where the tribe commuted his sentence to time served when it learned the government indicted the petitioner for assault of a federal officer. A challenge to a conviction usually isn't moot, even when the sentence is finished, because collateral consequences are presumed. But here the petitioner waived a claim to the presumption by not objecting to the magistrate judge's failure to apply that presumption. The possibility of a sentence enhancement due to the convictions is usually too speculative to warrant a finding of collateral consequences. Here the convictions were used as a ground for an upward departure in the federal case. But the petitioner never pointed that out before the magistrate judge or the d. ct. So that argument and the argument that the convictions affected the petitioner's eligibility for tribal office or tribal employment, which was also not raised below, were waived. The petitioner had long ago forfeited other civil rights by accumulating a lot of other convictions.