United States District Court, D. Alaska
July 29, 2015
JOHN WHITEHORSE VANN,  Petitioner,
STATE OF ALASKA, Respondent.
ORDER REGARDING PETITION
SHARON L. GLEASON, District Judge.
On July 9, 2015, John Whitehorse Vann, a state prisoner representing himself, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 30-year sentence and conviction for sexual assault and kidnapping in State of Alaska Superior Court Case Number 3SW-03-00116CR. Under Rule 4 of the Rules Governing Section 2254 Cases, the Court must review the petition to determine whether "it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." If so, "the judge must dismiss the petition."
1. When filing a federal habeas petition, a petitioner must comply with the Antiterrorism and Effective Death Penalty Act.
A petition filed under § 2254 "is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." The Supreme Court explains as follows:
AEDPA instructs that, when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, the federal court may overturn the state court's decision only if it was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The prisoner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." § 2254(e)(1).... [This Court] reiterate[s] "that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."... AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state courts: A writ of habeas corpus may issue only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by" this Court. § 2254(d)(1).
Under § 2254, habeas relief is available to a state prisoner only if his custody violates federal law. 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.
2. A habeas petitioner must fully exhaust his or her state court remedies before bringing a federal petition for writ of habeas corpus.
Habeas relief is not available "unless the applicant has exhausted the remedies available in the courts of the State." That is, "[b]efore seeking a federal writ of habeas corpus, a state prisoner must... giv[e] the State the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." To satisfy the exhaustion requirement, a "prisoner must fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim."
Further, the United States Supreme Court has held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that resulted in' a decision that was contrary to, or involved' an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court."
The Court takes judicial notice that Mr. Vann appears to have fully exhausted Ground 3, his claim that DNA evidence should not have been presented by one lab technician about the results of DNA testing conducted by another lab technician, in violation of the Confrontation Clause.
Mr. Vann, however, brings three other claims for relief. In Ground 1, he claims that he received ineffective assistance of counsel as to several issues; in Ground 2, he claims a "violation of the rape shield law" for being prohibited from presenting evidence of the "complaining witness' prior false allegations of sexual assault"; and in Ground 4 he claims that he was denied his right to a speedy trial. The Court of Appeals decision does not mention any of those grounds for relief in its decision on direct appeal.
The public record shows that, after Mr. Vann completed his direct appeal, he filed a petition for post-conviction relief in the Superior Court for the State of Alaska. That case was dismissed on January 29, 2015. Mr. Vann has filed an appeal from that decision, which is pending before the Alaska Court of Appeals, and is currently in the briefing stage. Thus, Mr. Vann may be in the process of exhausting his remaining grounds for relief.
3. The federal habeas statute of limitations is tolled while a properly filed state petition for post-conviction relief is pending.
There is a one-year limitations period in which to file a habeas petition under 28 U.S.C. § 2254:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
But under the statute, "[t]his one-year limitations period is tolled during the pendency of a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim....' § 2244(d)(2)." The Supreme Court explains that "[t]he time that an application for state post-conviction review is pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law."
Direct review of Mr. Vann's judgment became final on November 23, 2010,  and Mr. Vann did not file his petition for post-conviction relief until August 9, 2011. So although the one-year limitations period appears to have been stayed since August 9, 2011, several months of the one-year statute of limitations had already run prior to that date. Therefore, after the post-conviction relief proceeding has been concluded in the state court, and assuming the result is unfavorable to him, Mr. Vann should immediately file a petition under 28 U.S.C. § 2254 in this Court if he seeks federal habeas relief.
Mr. Vann may elect to proceed solely on his one exhausted ground for relief now. However, this Court may not consider a second or successive § 2254 petition without first receiving authorization from the Court of Appeals for the Ninth Circuit. And federal law limits the type of cases that can be presented in a second or successive application. That is, by proceeding now on the one exhausted claim, Mr. Vann risks being precluded from obtaining habeas review of his unexhausted grounds for relief in the future.
4. The respondent in a federal habeas case is the petitioner's custodian.
Mr. Vann has named the State of Alaska as the Respondent in his Petition. The Court of Appeals for the Ninth Circuit, however, explains as follows:
It is well-established in our Circuit that a petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name "the state officer having custody of him or her as the respondent to the petition." Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see also Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts;.... "This person typically is the warden of the facility in which the petitioner is incarcerated." Stanley, 21 F.3d at 360. We explained in Stanley that "[f]ailure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction" over the custodian. Id. 
IT IS THEREFORE ORDERED:
1. Mr. Vann may file the enclosed Notice of Voluntary Dismissal, without prejudice, on or before August 31, 2015. Mr. Vann may then promptly file a timely new Petition for Writ of Habeas Corpus in this Court after all issues that he seeks to raise are exhausted in the state courts by presentation first to the Alaska Superior Court then, if he disagrees with that result, to the Alaska Court of Appeals and then, if he disagrees with that result, in a petition for hearing to the Alaska Supreme Court.
2. The Clerk of Court is directed to send form PS09, Notice of Voluntary Dismissal, to Mr. Vann with this Order.
3. In the alternative, on or before August 31, 2015, Mr. Vann may file an Amended Petition on the Court's habeas form, using his legal name,  naming his custodian (the warden) as the respondent, and setting forth only fully exhausted grounds for relief.
4. The Clerk of Court shall send Mr. Vann the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 form, with this Order.
5. The Court will take no further action in this case until Mr. Vann complies with this Order. If Mr. Vann fails to comply with this Order, this action will be dismissed without further notice.
6. The Clerk of Court is directed to send a copy of the District Court's handbook, "Representing Yourself in Alaska's Federal Court, " to Mr. Vann with this Order.