United States District Court, D. Alaska
ORDER RE COMBINED MOTION TO DISMISS AND MOTION FOR
SUMMARY JUDGMENT
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 32 is Respondent William Lapinskas's
Combined Motion to Dismiss, Motion for Summary Judgment, and
Answer to the First Amended Petition. The motions are fully
briefed.[1] Oral argument was not requested and was
not necessary to the Court's determination of the
motions.
Mr.
Torrence's First Amended Petition for Writ of Habeas
Corpus raises the following two arguments:
1. The evidence at trial was insufficient to establish Mr.
Torrence's guilt beyond a reasonable doubt on the
kidnapping and sexual assault charges, in violation of Mr.
Torrence's right to a fair trial and proof of guilt on
the essential elements of the charged offense, see
Jackson v. Virginia, 443 U.S. 307 (1979).
2. The prosecutor's failure to present exculpatory
evidence to the grand jury violated Mr. Torrence's right
to due process, see Rose v. Mitchell, 443 U.S. 545,
557 (1979 (14th Amendment due process applies to grand jury
procedures in states).[2]
Respondent
maintains that the amended petition should be dismissed
because it fails to provide sufficient facts to support Mr.
Torrence's claims, as required by Habeas Rule 2(c).
Respondent also argues that because Mr. Torrence did not
adequately present these federal claims to the Alaska Court
of Appeals, he is now precluded from asserting these claims
in state court. Finally, Respondent maintains that even if
Mr. Torrence's claims are not procedurally defaulted,
“[Mr.] Torrence's petition fails to establish that
the Alaska Court of Appeals unreasonably applied clearly
established federal law” to either claim.[3]
Mr.
Torrence responds that his amended petition adequately
notifies Respondent of the claims raised on federal habeas
review. And because the federal due process standard for
sufficiency of the evidence is identical to the Alaska
standard, Mr. Torrence argues they are interchangeable; thus,
he maintains that by making his argument under Alaska law, he
fairly presented his federal claim on that topic to the
Alaska state courts. As for his federal grand jury claim, Mr.
Torrence maintains that he fairly presented his claim to the
state court by citing to the Fifth and Fourteenth Amendments
of the U.S. Constitution. Finally, Mr. Torrence argues that
because neither claim is “palpably incredible” or
“patently frivolous, ” summary dismissal is
inappropriate and the Court “should set a briefing
scheduling in accordance with the Local Rules Governing
Section 2254 proceedings.”[4]
DISCUSSION
1.
Habeas Rule 2(c)
As an
initial matter, Respondent argues that Mr. Torrence's
petition should be dismissed for failure to comply with
Habeas Rule 2(c). That rule requires that a petition (1)
“must specify all the grounds for relief available to
the petitioner, ” and (2) must “state the facts
supporting each ground.”[5] “Notice pleading is not
sufficient, for the petition is expected to state facts that
point to a ‘real possibility of constitutional
error.'”[6] A petitioner must state specific,
particularized facts, which entitle him to habeas corpus
relief for each ground identified. “These facts must
consist of sufficient detail to enable a court to determine,
from the facts of the petition alone, whether the petition
merits further habeas corpus review.”[7]
Respondent
argues that Mr. Torrence's amended petition fails to
comply with Rule 2(c) because it does not state the facts
supporting each of Mr. Torrence's claims.[8]Respondent adds,
“[t]o the extent that Torrence might raise different
claims or might rely on legal theories or evidence different
from those upon which he relied in his state court briefings,
the State has insufficient notice of such claims to provide a
response.”[9]
On
review, the Court finds that Mr. Torrence's amended
petition adequately informs Respondent of the supporting
facts on which it relies. Regarding Mr. Torrence's
sufficiency of the evidence claim, the amended petition
asserts that the Alaska Court of Appeals unreasonably applied
clearly established federal law when it failed to find that
“the evidence at trial was insufficient to establish
Mr. Torrence's guilt beyond a reasonable doubt on the
kidnapping and sexual assault charges.”[10] Regarding the
grand jury claim, Mr. Torrence alleges that “the
prosecutor had failed to present exculpatory evidence to the
grand jury that Torrence had handed C.T. the firearm prior to
having sex, and that C.T. had placed the firearm on the
floor.”[11] The facts alleged in Mr. Torrence's
amended petition adequately inform Respondent of the nature
of the claims, such that dismissal on this basis is
unwarranted.
2.
Procedural Default
Respondent
next argues that Mr. Torrence failed to fairly present his
federal claims to the state court, and as a result, he failed
to exhaust those claims and is now procedurally defaulted
from asserting these federal claims in state court.
Exhaustion
of a federal claim for federal habeas review requires that a
petitioner fairly presented his claim to each of the state
courts. “Fair presentation requires that the petition
‘describe in the state proceedings both the operative
facts and the federal legal theory on which his claim is
based so that the state courts have a fair opportunity to
apply controlling legal principles to the facts bearing upon
his constitutional claim.'”[12]
The
procedural default rule bars consideration of a federal claim
that has not been presented to the state court when “it
is clear that the state court would hold the claim
procedurally barred.”[13] Accordingly, if state court
remedies are no longer available, a petitioner's federal
claims that were never presented to the state court may be
procedurally defaulted in such circumstances.
a.
Sufficiency of the Evidence
Respondent
argues that Mr. Torrence's federal sufficiency of the
evidence claim has been procedurally defaulted because Mr.
Torrence failed to exhaust this claim in state court and
state court remedies are no longer available. Mr. Torrence
concedes that he referenced only Alaska law when arguing this
claim on direct appeal in state court; but he maintains that
citation to federal authority is unnecessary because the
Alaska and federal standards for sufficiency of the evidence
claims are identical. Mr. Torrence argues that because the
standards are identical, his reliance on state law also
“fairly presented” this federal constitutional
claim; thus, this federal claim is sufficiently
exhausted.[14]
Respondent
does not contest that the federal and state standards for
insufficiency of the evidence are identical.[15] However,
Respondent argues that in state court Mr. Torrence advocated
for a completely different standard from both the state and
federal standard, and that the Ninth Circuit case law relied
upon by Mr. Torrence is inapplicable in his
case.[16]
In
Duncan v. Henry, the Supreme Court left unresolved
the question of whether a claim can be properly exhausted
when it is unclear from the petition whether the petitioner
is relying on a state or federal standard, and the two
standards are the same.[17] After Duncan was decided,
the Ninth Circuit in Sanders v. Ryder held that a
federal ineffective assistance of counsel claim was properly
exhausted in the state courts where the Washington state
courts had analyzed the ineffective assistance claim under
the Strickland standard, which was the standard
applicable under both state and federal law.[18] In
Sanders, the Ninth Circuit found it significant both
that the petitioner was self-represented and that he had made
it “abundantly clear” in a reply brief filed in
the state appellate court “that his ineffective
assistance of trial counsel claim was a federal
claim.”[19]The Ninth Circuit has not applied
Sanders to instances, such as this case, where the
petitioner was represented by counsel in the state court and
cited there only to state law. To the contrary, in Cook
v. Schriro, the Ninth Circuit held that
“[e]xclusive citation to . . . state court cases in a
counseled petition for review is not sufficient to give a
‘fair opportunity' to the [state court] to decide a
federal claim.”[20]
Mr.
Torrence was represented by counsel in his briefing to the
Alaska Court of Appeals and in his petition to the Alaska
Supreme Court.[21] In both instances, Mr. Torrence cited
only state law for his insufficiency of the evidence
claim.[22] He conducted a thorough analysis under
state law and distinguished his case from Reynolds v.
State, where the Alaska Court of Appeals held there was
sufficient evidence to establish that the defendant kidnapped
and committed first-degree sexual assault against the
victim.[23]Mr. Torrence's Petition for Review to
the Alaska Supreme Court does not apply or even cite the U.S.
Constitution or any federal case law on this claim, and there
is no indication that Mr. Torrence was implicitly making a
federal claim. Rather, a fair reading of Mr. Torrence's
counseled petition to the Alaska Supreme Court is that he was
arguing that the evidence at trial was insufficient under a
novel standard he proposed under state law.[24] Accordingly,
the Court finds that Mr. Torrence did not fairly present his
federal sufficiency of the evidence claim to the state
courts.
Mr.
Torrence is now procedurally barred from returning to state
court to assert this federal claim. AS 12.72.020(a)(3)(A)
bars an application for post-conviction relief if one year
has passed since a final decision on appeal, notwithstanding
two exceptions not applicable here.[25] Here, the Alaska Court of
Appeals issued its final decision in Torrence v.
State on March 27, 2013, and the Alaska Supreme Court
denied Mr. Torrence's petition for rehearing on May 28,
2013.[26] More than four years have passed since
that order. AS 12.72.020(a)(6) also bars a successive
application for post-conviction relief. Mr. Torrence has
previously filed an application with the state superior
court.[27] If Mr. Torrence attempted to return now
to state court on his insufficiency of the evidence claim, he
would be procedurally barred by state law from proceeding at
this time.
“A
federal claim that is defaulted in state court pursuant to an
adequate and independent procedural bar may not be considered
in federal court unless the petitioner demonstrates cause and
prejudice for the default, or shows that a fundamental
miscarriage of justice would result if the federal court
refused to consider the claim.”[28]Here, Mr.
Torrence has not demonstrated cause or prejudice for the
default nor has he shown that a fundamental miscarriage of
justice would result if this Court declined to consider his
federal insufficiency of evidence claim. The Court will not
consider the claim for the first time on federal habeas
review. Respondent's motion to dismiss this claim will be
granted.
b.
Exculpatory Evidence Claim
Respondent
also argues that Mr. Torrence did not fairly present a
federally based exculpatory evidence claim to the state
courts.[29] Mr. Torrence responds that in his
opening brief before the Alaska Court of Appeals, he
“argued that the prosecution's failure to inform
the grand jurors that Torrence gave C.T. the gun prior to
sexual intercourse violated his due process right” to a
fair and impartial grand jury, and he specifically cited
“to the Fifth and Fourteenth
Amendments.”[30] And Mr. Torrence notes that in his
petition to the Alaska Supreme Court, he again argued that
“[t]he errors violated Torrence's due process right
to a fair and impartial grand jury.”[31]
In
Galvan v. Alaska Department of Corrections, the
Ninth Circuit affirmed the district court's dismissal of
a habeas petition for failure to exhaust state
remedies.[32]There, Ms. Galvan had petitioned the
Alaska Supreme Court for review of her ineffective assistance
of counsel claim. The petition included twelve citations, all
but one of which were to decisions of the Alaska Supreme
Court and Alaska Court of Appeals. The sole federal citation
was to a Fourth Circuit case that was cited in support of Ms.
Galvan's argument that her lawyer performed below the
Alaska minimum standard. The Ninth Circuit held “[t]he
problem with Galvan's argument is not particularly the
sparseness of federal law in her petition to the Alaska
Supreme Court . . . [but] the context in which Galvan cited
her sole federal authority.”[33]
The
Ninth Circuit's holding in Galvan indicates that
a single citation to federal authority, may, in the right
context, be sufficient to fairly present a federal claim. The
key consideration is whether the petitioner has done enough
to “alert the state court to the fact that the relevant
claim is a federal one.”[34]
Here,
Mr. Torrence's filings in the state courts cited the
Fifth and Fourteenth Amendments of the U.S. Constitution in
the context of his grand jury claim. The Court finds that Mr.
Torrence's citation to the two amendments of the U.S.
Constitution was sufficient to alert the state court to the
federal nature of his claim. Accordingly, Mr. ...