Opinion
Case No. A05-0084 CV (JWS).
May 5, 2005
ORDER OF DISMISSAL
On April 22, 2005, Arthur Peterson, representing himself, filed a petition for writ of habeas corpus, alleging that he is being wrongfully held on an April 14, 2001 indictment, and that the attorneys involved in his state criminal case are conspiring against him.
See Docket No. 1. A three year length of delay has been found by the Ninth Circuit "to be substantial. Further, given the length of the delay, prejudice is presumed and triggers a Barker inquiry." McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003), citing Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992). Moreover, "the prosecution bears the burden of explaining pretrial delays." McNeeley at 827. In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court articulated a four-part test to determine when government delay has abridged the Sixth Amendment right to a speedy trial. The factors to be considered include: (1) the length of the delay; (2) the reasons for the delay; (3) the accused's assertion of the right to speedy trial; and (4) the prejudice caused by the delay. No single factor is necessary or sufficient.
The Court of Appeals for the Ninth Circuit has held that "the general grant of habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment — for example, a defendant in pre-trial detention or awaiting extradition." That Ninth Circuit has explained that, "[i]n these situations, not covered by the limitations in § 2254, the general grant of habeas authority provided by the Constitution and § 2241 will provide jurisdiction for state prisoners' habeas claims."
White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.), cert. denied, 2004 WL 2149065 (Nov. 15, 2004) ("2241 confers jurisdiction on a district court to issue a writ of habeas corpus when a federal or state prisoner establishes that he `is in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. §§ 2241(a) and (c)(3). The relevant sub-section of 28 U.S.C. § 2254 confers jurisdiction on a district court to issue `a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2254(a) (emphasis added).").
Id. (citations omitted).
Mr. Peterson has not shown, however, that he has fully exhausted his state court remedies. The exhaustion doctrine states that habeas relief is not available "unless the applicant has exhausted the remedies available in the courts of the State." This means that the petitioner must exhaust his state court remedies up through the state supreme court. As the Ninth Circuit has stated, even "where review in the highest court is discretionary, a prisoner must still petition the highest court for review in order to exhaust his claim properly."
See McNeely v. Blanas, 336 F.3d at 825-26 ("After the initial [§ 2241] petition was dismissed without prejudice due to the presence of unexhausted claims, Petitioner filed an amended petition, excluding the unexhausted claims, on September 25, 2000. In his answer, Respondent agreed that Petitioner has exhausted his remedies on the issues raised in the amended petition.").
28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) ("A federal court may not grant habeas relief to a state prisoner unless he has properly exhausted his remedies in state court. . . . A petitioner must exhaust his state remedies by reaching the point where he has no state remedies available to him at the time he files his federal habeas petition."); Reutter v. Crandel, 109 F.3d 575, 577 (9th Cir.), cert. denied, 118 S. Ct. 142 (1997) ("Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies") (quoting Picard v. Connor, 404 U.S. 270 (1971)); Zichko v. Idaho. 247 F.3d 1015, 1022 (9th Cir. 2001) ("A habeas petitioner must present his claims to the state's highest court in order to satisfy the exhaustion requirement of 28 U.S.C. §§ 2254(b)(1) and (c)").
See Custer v. Hill, 378 F.3d 968, 974-75 (9th Cir. 2004) (Petitioner who failed to reference his ineffective assistance of counsel claim in his petition for review in Oregon Supreme Court failed to exhaust his state court remedies with respect to issue, for purposes of federal habeas corpus petition).
Peterson v. Lampert, 319 F.3d at 1056, following O'Sullivan, 526 U.S. at 845 ("a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement").
To satisfy this exhaustion requirement, a petitioner must "fairly present" the substance of his claim to the state courts. A claim for habeas relief must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief. Mr. Peterson must show that each of the grounds on which this petition is based have been presented in the state courts, including the Supreme Court of Alaska, and that he was denied relief. Mr. Peterson has stated, however, that he has only brought a petition in the state superior court, and filed grievances against the attorneys involved, and did not appeal to the Court of Appeals and Alaska Supreme Court.
See Williams v. Taylor, 120 S. Ct. 1479 (2000); Lounsbury v. Thompson, 340 F.3d 998, 1001 (9th Cir. 2003) ("A petitioner is deemed to have exhausted state remedies if he makes a fair presentation of his federal claims to the state courts."), citing Peterson, 319 F.3d at 1155-56.
See Peterson, 319 F.3d at 1160 ("Peterson's reference to the right to adequate assistance of counsel under the Oregon Constitution did not fairly present his federal claim of ineffective assistance of counsel under the Federal Constitution.") (emphasis added); Lounsbury, 340 F.3d at 1002 ("Lounsbury's petition, on the other hand, included no such qualification, and unquestionably alleged a due process violation under the federal constitution."); Sanders v. Ryder, 342 F.3d 991 (9th Cir. 2003) ("[F]or the purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions. . . . [A] prisoner may alert a state court to the federal nature of the asserted right by using the phrase `ineffective assistance of counsel.'").
See Docket No. 1 at 7, 10, 10E; Case No. 4BE-04-00051 CI.
Because counsel is not required, or even guaranteed, in post-conviction proceedings, an allegation that counsel refused to present Mr. Peterson's claims in state court, does not overcome the statutory exhaustion requirement. Mr. Peterson can bring his claims pro se (representing himself), as he has done in this Court.
See Ellis v. Armenakis, 222 F.3d 627, 632-33 (9th Cir. 2000) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further"), quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1990) (citations omitted); Poland v. Stewart, 151 F.3d 1014, 1022 (9th Cir. 1998) (there is no constitutional right to counsel in state post-conviction proceedings).
IT IS THEREFORE ORDERED:
Mr. Peterson's petition for writ of habeas corpus, at Docket No. 1, is DISMISSED without prejudice to its timely refiling after all issues that he wishes to raise are exhausted in state court by presentation first to the Alaska Superior Court then, if he is unhappy with that result, to the Alaska Court of Appeals and then, if he is unhappy with that result, in a petition for hearing to the Alaska Supreme Court.
See Peterson v. Lampert, 319 F.3d at 1159-60 ("`mere similarity' between a state claim presented in state court and the federal claim made in the habeas petition does not suffice to avoid procedural default") (citation omitted).