The opinion of the court was delivered by: Scott A. Oravec United States Magistrate Judge
Respondent Bruno Stolc, et al., moves to dismiss Stanley J. Mute‟s Petition for Writ of Habeas Corpus on grounds that his claims are procedurally barred because he failed to raise the issues before the Alaska appellate courts. This report and recommendation addresses only the Respondent‟s Motion to Dismiss at Docket No. 58. Mute filed an opposition to the Respondent‟s Motion to Dismiss.*fn1 The Respondent did not submit a reply. For the reasons discussed below, I conclude that the Respondent‟s Motion to Dismiss should be denied as to Petitioner‟s first ground for habeas relief and granted as to claims under the second and third grounds for habeas relief.
A.State Court Proceedings
In November 1995, Stanley Mute was indicted on one count of sexual
assault in the first degree against his domestic partner, M.E. and on
one count of assault against her, as well as a count of assault
against her brother, H.E.*fn2 The public defender
agency was appointed to represent Mr. Mute, and attorney Victor Carlson was assigned as trial
counsel.*fn3 A jury trial was held in Bethel, Alaska
beginning on February 5, 1996.*fn4 Mute stated
multiple times before trial began that he did not feel Mr. Carlson was
providing him a zealous defense.*fn5 Mute asked the
trial court judge for new representation by a different attorney on
the morning trial was to begin, citing his right of effective
representation.*fn6 Mute stated that in preparation
for trial he and Mr. Carlson had not discussed any defense strategy,
but that Mr. Carlson simply asked him "if he did it?‟ to which Mute
responded "No, I did not" and Mr. Carlson responded "yes, you did" (or
words to that effect) and they disagreed whether or not to call Mute‟s
brother as a witness.*fn7 In requesting a continuance
and representation by new counsel, Mute described the inadequacy of
his defense attorney‟s attitudes and preparation for trial.*fn8
The trial judge denied Mute‟s request and continued with
trial.*fn9 At the end of government‟s case, Mute
claimed several times he had been "misrepresented‟ and requested a
mistrial which was denied by the trial judge.*fn10 He
again claimed his rights had been violated when he made his decision not to
Mute filed an appeal with the Alaska Court of Appeals on October 23, 1996; Mute v. State, A-6472.*fn12 This appeal alleged errors by the trial court in denying Mute‟s requests for a new attorney and in accepting Mute‟s waiver of his right to testify at trial. The Alaska Court of Appeals in a published opinion denied the appeal on March 27, 1998.*fn13 A copy of the decision appears at Exhibit G of Docket No. 64.
Mute then filed a pro se petition for hearing in the Alaska Supreme Court on September 24, 1998 based on denial of his motion for alternative appointed counsel and denial of his right to testify because of a breakdown in the attorney/client relationship.*fn14 The Petition for hearing was denied on December 28, 1998.*fn15
B. State Post Conviction relief Proceedings.
Before receiving a decision on his pro se petition, Mute‟s appellate attorney filed a petition for post-conviction relief alleging ineffective assistance of counsel, signed on December 27, 1996 and containing affidavits from his trial counsel.*fn16 The state court dismissed this post-conviction petition on October 27, 1997 in short for lack of evidence to support the underlying claims of ineffective assistance of counsel.*fn17 Mute filed a late pro se appeal to the Court of Appeals of the State of Alaska.*fn18 The Court of Appeals of the State of Alaska granted the appeal and remanded the case back to Superior Court to make an eligibility determination on court appointed counsel.*fn19 Mute‟s request for court-appointed counsel was granted by the Superior Court for the State of Alaska and Mute‟s appeal was denied by the Court of Appeals of the State of Alaska.*fn20 A petition for hearing was not filed to the Alaska Supreme Court from this decision.*fn21 Mute filed a second application for post-conviction relief to the Superior Court and it was denied.*fn22 An appeal was filed and the Alaska Court of Appeals affirmed the ruling of the lower court.*fn23 A petition for hearing was filed with the Alaska Supreme Court.*fn24
C. Federal Court Proceedings.
A Petition for Writ of Habeas Corpus was filed in United States
District Court on April 15, 2008.*fn25 An Amended
Petition for Writ of Habeas Corpus was filed on September 15,
2008.*fn26 The State of Alaska filed a Motion to
Dismiss the Habeas Petition on December 23, 2008.*fn27
A Response in Opposition to the Motion to Dismiss was filed on
February 11, 2009 and Mute filed a Motion for Leave to File Second
Amended Petition for Habeas Corpus on February 12, 2009.*fn28
A Second Amended Petition for Writ of Habeas Corpus was filed
on April 24, 2009.*fn29 The State of Alaska‟s Motion
to Withdraw the Motion to Dismiss Habeas Petition (Docket No. 26) was
granted on July 15, 2009.*fn30 The State of Alaska
filed a Motion to Dismiss the Second Amended Petition on August 28,
2009.*fn31 Response in Opposition to the Motion to
Dismiss was filed on December 2, 2009.*fn32 Scheduling
and Planning Conference was held on February 18, 2010.*fn33
The Amended Petition for Writ of Habeas Corpus asserts three grounds for relief; ineffective assistance of counsel violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution; deprivation of the right to testify at his own trial by the actions of his attorney and the trial court violating his rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution; and deprivation of the right to a fair trial and due process of law due to threats made by the prosecutor to the alleged victim violating his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.*fn34 The State of Alaska‟s Motion to Dismiss the Second Amended Petition argues the Amended Petition must be dismissed for procedural default because Mute failed to present the federal nature of his claims or failed to raise the claims altogether to the Alaska courts.*fn35 The State asserts that he cannot now return to the Alaska courts for relief, and he cannot demonstrate cause for his default.*fn36 The Opposition to the Motion to Dismiss argues the federal claims were adequately presented to avoid procedural default and in the alternative the failure to do so should be excused under the doctrine of "cause and prejudice" resulting from ineffective assistance of counsel at trial and on the merit appeal.*fn37
It is not contested that Petitioner‟s claims are in fact exhausted and that he may no longer bring a post-conviction action in Alaska courts under AS 12.72.020. After appealing to the Alaska Supreme Court, Petitioner filed two applications for post conviction relief and appealed those rulings. The second application for post conviction relief was filed because it alleged ineffective assistance of counsel in the filing of the appeal and the first post conviction relief. However the second petition itself did not reference ineffective assistance of counsel by the trial counsel.
The Respondent claims that Petitioner has failed to raise a federal claim in the Supreme Court of Alaska. Respondent asserts that Petitioner‟s claims were cast as state law claims, rather than as federal constitutional claims, and that the claims were not fairly presented before the Alaska appellate courts. If Respondent is correct, then Petitioner‟s habeas claims would be procedurally barred.
A.Standard for Exhaustion.
The court may review the merits of Petitioner‟s habeas petition only if he exhausted state court remedies.*fn38 To satisfy the exhaustion requirement, Petitioner had to "fairly present" his federal claims in state court "to give the State the opportunity to pass upon and correct alleged violations of its prisoners‟ federal rights."*fn39 In other words, Petitioner fairly presented federal claims only if he alerted the state court that his claims rested on the federal Constitution.*fn40 In order to alert the state court, a petitioner must make ...