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Clarence Solomon v. Charles Stevenson

May 4, 2012

CLARENCE SOLOMON,
PETITIONER,
v.
CHARLES STEVENSON, RESPONDENT.



The opinion of the court was delivered by: Scott A. Oravec United States Magistrate Judge

FINAL REPORT AND RECOMMENDATION REGARDING RESPONDENT'S MOTION FOR SUMMARY ADJUDICATION (Docket No. 22)

INTRODUCTION

Clarence Solomon is a state prisoner convicted of Driving Under the Influence of an Intoxicating Substance under Alaska state law. He filed a federal petition for a writ of habeas corpus, claiming that the trial court erred in refusing to instruct the jury on the defense of voluntary intoxication based on his consumption of an over-the-counter flu medicine containing alcohol, as well as the trial courts failure to instruct the jury that the State must prove beyond a reasonable doubt that Solomon "knowingly" ingested an intoxicant. On March 22, 2012, Stevenson filed objections to the Report and Recommendation.*fn1 Solomon filed his objections on March 29, 2012.*fn2 The parties filed their respective replies on March 29*fn3 and April 5, 2012.*fn4

The respondent, Charles Stevenson, has filed a motion which will be construed as a motion to dismiss because Solomon failed to exhaust his remedies in state court as required by 28 U.S.C. 2254(b)(1)(A). Although three of Solomon's claims were properly exhausted in his Petition for Hearing to the Alaska Supreme Court, the remaining three claims were unexhausted. Because a federal habeas petition may not contain both exhausted and unexhausted claims, Solomon's petition will be dismissed to allow him to return to state court to fully exhaust his claims unless he amends his petition to contain only unexhausted claims.

ISSUES PRESENTED

Did Solomon adequately exhaust his state remedies before the filing of his federal habeas corpus claim as required by 28 U.S.C. 2254(b)(1)(A)?

FINDINGS OF FACT

1. Underlying Offense and Trial

On December 30, 2007, Clarence Solomon was driving his truck in the Fairbanks area when he was contacted by a taxi driver who noticed Solomon driving erratically.*fn5 The driver later told police that Solomon admitted he was intoxicated, and that he needed a ride because the axel on his truck was bent.*fn6 The driver refused, but agreed to follow behind Solomon as he drove to a nearby gas station.*fn7 In the meantime, the driver contacted police to report Solomon's suspicious behavior.*fn8 Several minutes after the driver and Solomon arrived at the gas station, Fairbanks Police Officer John Merrion arrived to investigate the report.*fn9 When Merrion contacted Solomon, he observed that Solomon's eyes were red and watery, his speech was slurred, and he swayed back and forth.*fn10 However, Solomon denied consuming alcohol (although he did admit that he had taken Vicodin).*fn11 Solomon agreed to a breath test, which showed that he had a blood alcohol content of .169 percent.*fn12 Solomon was arrested and charged with driving under the influence.*fn13

Solomon plead not guilty and was tried by a jury. Solomon testified at trial that he had not consumed any alcohol on the night of December 30, but he had consumed approximately 30 ounces of NyQuil to treat symptoms for the flu.*fn14 Solomon argued that he did not read the labels on the NyQuil bottle, and was unaware that NyQuil contained alcohol.*fn15 The State presented evidence that NyQuil bottles indicate that they contain 10% alcohol.*fn16 They also argued that 30 ounces of NyQuil contained so little alcohol that it could not explain Solomon's .169 percent blood alcohol test.*fn17

Solomon's attorney requested the trial court judge to instruct the jury on the affirmative defense of involuntary intoxication and/or instruct the jury that the State must prove beyond a reasonable doubt that Solomon "knowingly ingested intoxicants."*fn18 The judge denied Solomon's requests, ruling that because the label indicated that NyQuil contained alcohol, Solomon was on "constructive notice" that he was consuming alcohol, even if he did not actually read the label.*fn19

A jury found Solomon guilty of driving under the influence.*fn20

2. State Appellate Proceedings/State Post-Conviction Relief

Solomon appealed to the Alaska Court of Appeals, claiming that the trial court judge erred in not instructing the jury on involuntary intoxication and not instructing the jury that it must find beyond a reasonable doubt that Solomon had knowingly ingested an intoxicant.*fn21 The Court of Appeals determined that involuntary intoxication was a defense recognized in the state of Alaska, but that it was unavailable to Solomon because the defense only applies when the defendant's consumption of alcohol was non-negligent.*fn22 The Court concluded that no reasonable jury could find that Solomon's failure to read the NyQuil bottle was non-negligent, and therefore the trial court judge did not err by refusing to provide Solomon's instruction.*fn23

Solomon filed a Petition for Hearing in the Alaska Supreme Court on May 5, 2010.*fn24

The State filed a response.*fn25 In his Petition, Solomon made three arguments:

(I) "The Court of Appeals erred in applying the defense [of involuntary intoxication] to the evidence";*fn26

(II) "The Court of Appeals erred in imposing a burden of production";*fn27

(III) "The Court of Appeals erred in adopting a civil negligence standard";*fn28

The Supreme Court denied the Petition without comment.*fn29 Solomon filed an application for post-conviction relief on July 7, 2010.*fn30 Solomon was appointed counsel, but Solomon chose to dismiss the application before a response was filed.*fn31

3. Federal Habeas Proceedings

On July 12, 2011, Solomon filed a petition for a Writ of Habeas Corpus in the U.S. District Court for the District of Alaska.*fn32 Counsel was appointed on August 2, 2011.*fn33
Solomon filed an Amended Petition on November 30, 2011.*fn34 Solomon's Amended Petition asserts six grounds for relief -- namely that the Alaska Courts violated his Fifth and Fourteenth Amendment rights under the ...

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