UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
June 16, 2011
STANLEY J. MUTE,
BRUNO STOLC, ET AL., RESPONDENT.
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 reference to provisions of the federal Constitution or must cite either federal or state case law that engages in a federal constitutional analysis.*fn41
B.Petitioner's First Ground for Habeas Relief.
Petitioner‟s first claim for habeas corpus relief is that his conviction and sentence were secured in violation of the Sixth Amendment right to effective assistance of counsel.*fn42
Petitioner‟s briefing on this issue to the Alaska Court of Appeals in
his merit appeal did not make reference to provisions of the federal
Constitution and did not cite either federal or state law that engages
in a federal constitutional analysis.*fn43 However, in
a published decision, the Alaska Court of Appeals decided Petitioner‟s
case, referencing the federal Constitution and citing to federal case
law. The Court of Appeals found that Petitioner had not been deprived
of effective assistance of counsel by the trial court‟s refusal to
give Petitioner a new lawyer.*fn44 In making its
decision, the Court of Appeals relied on Monroe v. State, 752 P.2d
1017, 1020 (Alaska App.1988), which cites to Morris v. Slappy, 461
U.S. 1, 13-14 (1983), for the reasoning that the "due process clauses
of the state and federal constitutions do not guarantee a "meaningful
relationship‟ between client and his appointed counsel."*fn45
Accordingly, because the Court of Appeals used federal
analysis in rendering its decision, the Court was alerted as to
Petitioner‟s federal ineffective assistance of counsel claim.
Petitioner thereafter filed a pro se Petition for Hearing to the
Alaska Supreme Court from the merit appeal opinion.*fn46
Petitioner again described his trial counsel‟s inadequacy,
Petitioner‟s own efforts to obtain new counsel, and the trial court‟s
failure to adequately inquire, but Petitioner‟s briefing to the Alaska
Supreme Court did not make reference to provisions of the federal
Constitution and did not cite to either federal or state law that
engages in federal constitutional analysis. Though the justices of the
Alaska Supreme Court did have an opportunity to read the Court of
Appeals opinion in Petitioner‟s case, that opportunity means that the
judges could have read them.*fn47 But to say that a
petitioner "fairly presents" a federal claim when an appellate judge
can discover that claim only by reading lower court opinions in the
case is to say that those judges must read the lower court opinions --
for otherwise they would forfeit the State‟s opportunity to decide
that federal claim in the first instance.*fn48
However, federal habeas corpus law does not impose such a
Nonetheless, under the analysis in Peterson v. Lampert, 319 F.3d 1153 (9th Cir.2003), I believe Petitioner has exhausted his federal ineffective assistance of counsel claim.
First, Peterson makes clear that, for the purposes of exhaustion, pro se petitions are held to a more lenient standard that counseled petitions.*fn50 The Ninth Circuit Court of Appeals has disavowed language suggesting that pro se and counseled petitions should be read the same way and held to the same standard. Petitioner‟s brief to the Alaska Court of Appeals was counseled, but his brief to the Alaska Supreme Court was pro se.
Second, Peterson makes clear that, depending on the context of his claim, a prisoner may alert a state court to the federal nature of the asserted right by using the phrase "ineffective assistance of counsel." Peterson had argued his federal ineffective assistance claim to the Oregon Court of Appeals, but in his petition to the Oregon Supreme Court he had only argued that he received "inadequate assistance of counsel," and thus employed the phrase usually used to refer to the Oregon state constitutional right.*fn51 By contrast, Petitioner consistently mentioned "ineffective assistance of counsel" in his briefing.
Third, Peterson did not decide whether a prisoner may exhaust a federal constitutional claim by referring to a state constitutional right when the contours of the federal and state constitutional rights are identical. In Duncan v. Henry, 513 U.S. 364, 365-66 (1995), the Supreme Court held that a petitioner does not exhaust a federal claim by raising a state claim that is similar to the federal claim: "mere similarity of claims is insufficient to exhaust." A prisoner‟s vague claim in state court that his conviction was a "miscarriage of justice" was insufficient to alert the state court to an alleged violation of federal Due Process rights.*fn52 But
"[t]he Supreme Court in Duncan left open the question of what happens when the state and federal standards are not merely similar, but are, rather, identical or functionally identical."*fn53
The right to effective assistance of counsel is identical under the
United States Constitution and the Alaska Constitution.*fn54
When faced with ineffective assistance of counsel claims
under both the federal and state constitutions, Alaska courts analyze
them using the same Strickland test.*fn55 Petitioner‟s
brief to the Alaska Supreme Court states that he was not effectively
represented, and throughout the brief describes his trial attorney‟s
actions. Although there is no citation to the federal Constitution or
federal case law, there is nothing to suggest that Mute, a pro se
petitioner, meant to allege "specifically and exclusively" a violation
of his state constitutional right.*fn56
For the foregoing reasons, Petitioner presented his federal ineffective assistance of counsel claim to the Alaska Court of Appeals and the Alaska Supreme Court in such a manner that that court had a "fair opportunity" to address his claim.*fn57 Petitioner‟s federal ineffective assistance of counsel claim was therefore exhausted in state court, and Respondents‟ motion should be denied as to Petitioner‟s first ground for habeas corpus relief.
C.Petitioner's Second Ground for Habeas Relief.
Petitioner‟s second ground for habeas relief is that he was deprived of the right to testify at his own trial by the actions of his trial attorney and the trial court, all in violation of his right to effective assistance of counsel, his right to testify in his own defense, his right to confrontation, his right to due process, and his right to compulsory process, under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.*fn58 Petitioner raised the deprivation of his right to testify both to the Alaska Court of Appeals and in his Petition for Hearing to the Alaska Supreme Court.*fn59 Petitioner argued before both the Court of Appeals and the Alaska Supreme Court that the Alaska Supreme Court‟s decision in LaVigne v. State, 812 P.3d 217 (Alaska 1991), established the deprivation of his right to testify. Petitioner asserts that because the LaVigne decision rests principally on federal constitutional analysis, his federal claim was fairly presented to the state courts through citation to the LaVigne case.*fn60 Respondent contends that citation to LaVigne only for the point that a trial court should inquire of defendant whether he wishes to testify does not make Petitioner‟s second habeas ground a federal claim.*fn61
Petitioner is asserting that he fairly presented a federal claim by citing to LaVignev. State, 812 P.3d 217 (Alaska 1991), a state court decision that reviewed petitioner‟s right to testify claims under both state and federal law. However, as asserted by Respondent, Petitioner cited to LaVigne primarily for the point that a trial court should inquire of a defendant whether he wishes to testify -- not for the purpose of making a federal claim. And as required by LaVigne, in Petitioner‟s case, the trial court clearly inquired Petitioner as to whether he understood his right to testify, and whether he chose to testify at trial.*fn62 Petitioner clearly stated that he was choosing not to exercise his right to testify.*fn63
Nonetheless, when a petitioner does not label his claim as federal, the mere citation to a state court case that engages in both state and federal constitutional analysis does not suffice to exhaust the federal claim.*fn64
Moreover, unlike Petitioner‟s ineffective assistance of counsel claim, which is identical to the federal claim of ineffective assistance of counsel, in Alaska, the state constitution only similarly accords criminal defendants a constitutional right to testify on their own behalf.*fn65
LaVigne cites to U.S. Supreme Court case Rock v. Arkansas, 483 U.S. 44
(1987), stating that the U.S. Supreme Court found the right to testify
grounded in the Fifth, Sixth, and Fourteenth Amendments.*fn66
However, in the next paragraph, the Alaska Supreme Court
states that in Alaska, "the state constitution similarly accords
criminal defendants a constitutional right to testify on their own
behalf."*fn67 Raising a state claim that is merely
similar to a federal claim does not exhaust state
remedies.*fn68 Accordingly, Petitioner‟s second ground
for habeas relief is procedurally barred because he failed to "fairly
present" a federal claim to the Alaska Court of Appeals or Alaska
Petitioner asserts that in the alternative, any procedural default should be excused under the doctrine of "cause and prejudice." Petitioner asserts that because he believes his appellate counsel was ineffective, there is sufficient "cause" to prevent a procedural default. Respondent asserts that Petitioner cannot demonstrate cause for his procedural default.
A federal court cannot review the merits of a procedurally defaulted
claim unless the petitioner demonstrates either cause for the
procedural default and actual prejudice resulting
therefrom.*fn69 The mere fact that counsel failed to
recognize the factual or legal basis for a claim, or failed to raise
the claim despite recognizing it, does not constitute cause for a
default.*fn70 To demonstrate cause for a procedural
default, the petitioner must show that "some objective factor external
to the defense impeded counsel‟s efforts to comply with the State‟s
procedural rule."*fn71 To demonstrate actual
prejudice, the petitioner must show that the errors during his trial
created more than a possibility of prejudice; he must show that the
errors "worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions."*fn72
Counsel‟s failure to raise a particular claim on appeal is
also to be scrutinized under the cause and prejudice standard when
that failure is treated as a procedural default by the state
courts.*fn73 Cause for procedural default on appeal
ordinarily requires a showing of some external impediment preventing
counsel from constructing or raising the claim.*fn74
Ineffective assistance of counsel, can be cause for a procedural default.*fn75
However, the exhaustion doctrine, which is "principally designed to protect the state courts" role in the enforcement of federal law and prevent disruption of state judicial proceedings, generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.*fn76 This is so because:
[I]f a petitioner could raise his ineffective assistance claim for
the first time on federal habeas in order to show cause for a
procedural default, the federal habeas court would find itself in the
anomalous position of adjudicating an unexhausted constitutional claim
for which state court review might still be available.*fn77
In this case, Petitioner asserts that at the time of Petitioner‟s appeal, his appellate attorney was suffering from chronic depression, which caused him to virtually neglect and ignore his professional obligations to his clients.*fn79 Petitioner further asserts that if his appellate counsel had rendered effective assistance of counsel at appeal, Petitioner should have prevailed on the claim that the state court violated his Sixth Amendment right to effective assistance of trial counsel when it denied his motion for different appointed counsel.*fn80
Though Petitioner‟s appellate counsel was allegedly suffering from chronic depression at the time of Petitioner‟s appeal, which could be considered "some objective factor external to the defense," thereby impeding counsel‟s representation of Petitioner, and therefore constituting cause for procedural default,*fn81 "the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default."*fn82 Here, Petitioner did raise the right to testify claim before the Alaska Court of Appeals and the Alaska Supreme Court. However, as established in the foregoing, Petitioner did not present the right to testify claim as a federal claim, and Petitioner failed to raise before the appellate courts an independent claim that his appellate attorney was ineffective in his failure to present a federal right to testify claim. Petitioner also failed to raise the claim in his post-conviction relief petitions. Accordingly, Petitioner‟s claim of ineffective assistance cannot be used to establish cause for procedural default.
Even if Petitioner‟s claim of ineffective assistance due to depression could be used to establish cause for procedural default, Petitioner‟s appellate counsel clearly presented a state right to testify claim before the Alaska appellate courts, and unfortunately for Petitioner, appellate counsel failed to explicitly state that the claim was federal as well. The mere fact that counsel failed to recognize that he should have raised a federal claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.*fn83
Because Petitioner fails to show cause for the procedural default, the court need not assess whether prejudice resulted therefrom because it is necessary that Petitioner show both cause and prejudice in order for the court to reach such a claim as posed herein on the merits.*fn84
The Ninth Circuit has found that in such circumstances the federal court need not address the argument on the merits.*fn85
D.Petitioner's Third Ground for Habeas Relief.
Petitioner‟s third ground for habeas relief is that he was deprived of a fair trial, of due process of law, of the right of confrontation, and of compulsory process by the misconduct of the state prosecutor, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.*fn86 Specifically, Petitioner asserts that he was deprived of these rights because the state prosecutor threatened and coerced the victim, M.E., in advance of trial, and M.E. refused to testify even though her testimony would have been exculpatory.*fn87 Respondent contends that Petitioner did not fairly present these claims before the Alaska courts.*fn88 Petitioner asserts that the claims were fairly presented to the Alaska courts, or, alternatively, Petitioner‟s failure to present them should be excused under the doctrine of "cause and prejudice."*fn89
Petitioner did not present the third ground for habeas relief to the Alaska Court of Appeals or the Alaska Supreme Court; the issue was raised in Petitioner‟s second application for post-conviction relief, but it was not presented as a federal claim.*fn90 Thus, Petitioner must demonstrate cause and prejudice for a procedural default.*fn91
Petitioner asserts that the alleged misconduct of the state prosecutor constitutes cause and that he was prejudiced as a result of the misconduct, particularly because M.E.‟s testimony might well have changed the outcome of the trial. At a minimum, however, Petitioner must show that "something external to [him], something that cannot fairly be attributed to him," caused the procedural default.*fn92 It is true that government interference can constitute cause for a procedural default.*fn93 However, cause, "whether it be government interference . . . must have prevented petitioner from raising the claim."*fn94 I do not make a finding that there was government interference or prosecutorial misconduct at the trial level; however, even if the government interfered by harassing M.E., thereby preventing her from presenting exculpatory evidence, that interference did not prevent Petitioner from raising a federal claim on this issue before the Alaska appellate courts. Accordingly, Petitioner has failed to show cause such that the procedural default should be excused.
And again, because Petitioner fails to show cause for the procedural default, the court need not asses whether prejudice resulted therefrom because it is necessary that Petitioner show both cause and prejudice in order for the court to reach such a claim as posed herein on the merits.*fn95 Petitioner‟s third ground for habeas relief is thus procedurally barred and Respondents‟ Motion regarding this claim should be granted.
Accordingly, Respondent‟s Motion to Dismiss should be denied as to Petitioner‟s first ground for habeas relief. The Motion to Dismiss should be granted as to the second and third grounds for habeas relief. IT IS SO RECOMMENDED.
s/SCOTT A. ORAVEC
Pursuant to Local Magistrate Rule 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON on Monday, June 27, 2011. The failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON on Thursday, July 7, 2011. The parties shall otherwise comply with provisions of Local Magistrate Rule 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).