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Lepping v. Taylor

United States District Court, D. Alaska

October 1, 2015

KURT LEPPING Petitioner,



Counsel for Kurt Lepping filed an Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, [1] challenging the judgment of conviction entered by the Alaska Superior Court in State of Alaska v. Kurt Lepping, 3AN-10-01773CR.[2] Counsel for Mr. Lepping asserted that each ground on which the Amended Petition is based was raised in the state courts, up through and including the Alaska Supreme Court, as required by § 2254(b).[3]

The Respondent has moved to dismiss, Mr. Lepping has responded, and the Respondent has replied.[4] In the Motion to Dismiss, the Respondent argues that (1) the denial of Mr. Lepping’s request for a continuance by the state trial court was decided solely on state law grounds; (2) Mr. Lepping failed to exhaust his state court remedies on his claim of ineffective assistance of counsel; and (3) his claim that he lacked notice of his right to a post-seizure hearing is not a cognizable federal habeas claim.[5]

1. A Petitioner Must Comply With the Antiterrorism and Effective Death Penalty Act When Filing a Federal Habeas Petition.

A petition filed under § 2254 “is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).”[6] 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).[7]

2. Mr. Lepping Exhausted His Claim That the State Trial Judge’s Failure to Grant a Continuance Violated his Right to Due Process.

A state prisoner may challenge his or her judgment of conviction in federal court only if his or her custody violates federal law.[8] The Respondent argues that the Alaska Court of Appeals based its decision solely on state law when addressing Mr. Lepping’s allegation that the trial court should have granted his motion for a continuance was based upon anything other than state law.[9]

Further, “the availability of federal habeas relief is limited with respect to claims previously ‘adjudicated on the merits’ in state-court proceedings.”[10] That is, habeas relief is not available “unless the applicant has exhausted the remedies available in the courts of the State.”[11] So “[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.”[12] 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.”[13]

On direct appeal, the Alaska Court of Appeals explains that “[n]ot every denial of a request for additional time violates due process[, ]”[14] citing an Alaska Supreme Court case, Klockenbrink v. State, in support.[15] And the Alaska Supreme Court, in discussing due process in Klockenbrink, relies upon Ungar v. Sarafite, 376 U.S. 575 (1964).[16] In Lepping, the appellate court also cites the Klockenbrink decision for the proposition that “[o]nly an arbitrary refusal violates due process, and whether this has occurred ‘depends upon the circumstances of each case, especially the reasons supporting the request for continuance[, ]’”[17] relying upon another United States Supreme Court case.[18]

As the Ninth Circuit reasoned in Peterson v. Lampert, “for purposes of exhaustion, a citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue.”[19]

Further, both the Alaska and the United States Constitutions prohibit the State from “depriv[ing]” any person “of life, liberty, or property, without due process of law.”[20] Thus, the claim was presented to the Alaska “Supreme Court in such a manner that that court had a ‘fair opportunity’ to address his claim.”[21]

The Court, therefore, agrees with Mr. Lepping that he exhausted the issue of whether the denial of his motion for a continuance violated his right to federal due process, [22] and the ...

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