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Olson v. Houser

United States District Court, D. Alaska

May 14, 2018

GLENN OLSON, Petitioner,
v.
EARL HOUSER, Superintendent, Goose Creek Correctional Center, [1] Respondent.

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Glenn Olson, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Olson is in the custody of the Alaska Department of Corrections and incarcerated at Goose Creek Correctional Center. Respondent has answered, and Olson has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On April 4, 2008, Olson was charged with second-degree sexual assault and fourth-degree assault. Following his arraignment, Olson was appointed counsel and pleaded not guilty. He subsequently moved pre-trial to represent himself. After numerous hearings, the trial court ruled that Olson could represent himself and would be permitted to have appointed counsel serve as advisory counsel. On direct appeal of his conviction, the Alaska Court of Appeals laid out the following facts underlying the charges against Olson and the procedural background of his case:

         Factual and procedural background

         Benjamin Samuels, Peter Togiak, and M.B. went to a residence on the evening of March 28, 2008, after consuming a significant amount of alcohol. Glenn Olsen[2] arrived at the residence later that night. He had also been drinking alcohol. During the evening, Olsen told Togiak and Samuels to leave. Olsen and Togiak got into an altercation, and Olsen allegedly punched Togiak. Togiak and Samuels went to a neighbor's house to call the police.

         Officers Tracy O'Malley and Michael Barnett and Police Chief Richard Thompson responded to a report of a fight at the residence around 6 p.m. According to the officers, everyone at the house appeared intoxicated, and people were screaming and yelling. M.B. was sitting on the floor, highly intoxicated and unable to talk. Olsen acted belligerently toward the officers. Because no one wanted to file a complaint, the officers left.

         Following this first police visit, Olsen again told Togiak and Samuels to leave. Samuels testified that Olsen told him and Togiak that it was his house and that Olsen punched, grabbed, and kicked Togiak.

         Samuels testified that he saw Olsen grab M.B. by the hair and pull her to the bedroom. Samuels testified that M.B. tried to tell Olsen not to grab her hair and that he believed that M.B. did not want to go to the bedroom. Togiak testified that he saw Olsen hold M.B. by her hair and rape her in the bedroom. Togiak stated that he and Samuels tried to intercede on M.B.'s behalf, but Olsen fought them. Samuels and Togiak then returned to the neighbor's house and called the police.

         The police officers returned to the residence around 6:30 p.m. after receiving the report of a second assault. The officers found Samuels and Togiak outside. Samuels told the officers that he had seen Olsen threaten Togiak with a knife. Togiak completed a citizen's arrest form. The officers heard yelling from inside the residence. Based on the report of the knife, the yelling inside the residence, and the knowledge that M.B. was intoxicated and likely inside the residence, the officers went inside. In a bedroom, the officers found M.B. face down on a mattress with Olsen on top of her. Both M.B. and Olsen were dressed, but their pants and underwear were pulled down, and Olsen was wearing a condom. The officers either picked up Olsen or told Olsen to get off of M.B. M.B. continued to lie on the bed and was not able to coherently converse with the officers. . . . .

         Prior to trial, Olsen filed a motion to suppress all of the evidence the police observed inside the house. Olsen claimed that the police illegally entered the residence where he and M.B. were having sex because they entered without permission and no exigent circumstances justified the police entry. Olsen argued that all of the evidence that the police obtained from the illegal entry should be suppressed.

         Superior Court Judge Fred Torrisi conducted an evidentiary hearing on the motion to suppress. Dillingham Police Officer Michael Barnett and Police Chief Richard Thompson testified at the evidentiary hearing. Officer Barnett testified that when the officers responded to the second report of an assault at the residence, Togiak told the officers that Olsen had kicked him in the ribs, pointed a knife at Togiak, and told Togiak to get out of the house. Samuels also told Barnett that Olsen had a knife. Barnett also testified that while he was talking with Togiak and Samuels, he could hear a male and a female yelling in the residence. He concluded that it was likely that M.B. was in danger. Barnett testified that these facts made it necessary to enter the residence. Chief Thompson testified that he concluded it was necessary to enter the house because he did not see M.B. outside, he believed that M.B. was highly intoxicated, he had heard Togiak say that Olsen had used a knife in an assault, and he heard yelling coming from the house. He also concluded that M.B. was in danger.

         Following the presentation of the evidence, Judge Torrisi found the police officers' testimony credible. He concluded that the officers reached a reasonable conclusion that M.B. was in danger and that exigent circumstances justified the police entry.

Olsen v. State, No. A-10782, 2013 WL 596524, at *1-2 (Alaska Ct. App. Feb. 13, 2013).

         Olson proceeded to a jury trial with advisory counsel. After conducting voir dire pro se, Olson indicated that he no longer wished to represent himself and requested that his advisory counsel take over the case. The trial court granted the request, and Olson's attorney handled the case from opening arguments through the verdict.

         During trial, M.B. testified that she could not remember the events of that night due to her intoxication and had no memory of the alleged sexual assault, but the State relied on the testimony of other witnesses, as described in the Court of Appeals' factual summary above, to argue that a sexual assault had occurred. Olson testified that M.B. initiated sex and that he believed that she consented to the sexual activity. He also sought to admit the testimony of Jack Allen, a cab driver in Dillingham, who would testify that, when M.B. was intoxicated, she had acted in a flirtatious and seductive manner toward Allen when he had given her a ride in his cab. The trial court concluded that the proposed testimony was not admissible.

         At the conclusion of trial, the jury convicted Olson as charged. Following the conviction, Olson moved for a new trial, claiming that his attorney had exhibited racial bias against him and had threatened him in an attempt to coerce him into entering a guilty plea. The superior court found that Olson's claims were not credible and denied the motions.

         Olson then sought to represent himself at sentencing. Following a hearing, the trial court permitted Olson to present any written or oral legal and factual arguments to the court during sentencing proceedings, and also permitted Olson's attorney to make any arguments. The trial court sentenced Olson to 25 years' imprisonment with 5 years suspended and 15 years' probation on the second-degree sexual assault charge, and a consecutive term of 1 year imprisonment with 180 days suspended and a 5-year probationary period on the fourth-degree assault charge. The trial court also ordered that Olson have no contact with Togiak during the 5-year period of probation imposed on the fourth-degree assault charge and that Olson register as a sex offender for a period of 15 years after his unconditional discharge for the sexual assault charge as well as during his period of probation. After sentencing, Olson filed a motion for a hearing so that he could obtain bail on appeal. The State opposed the motion, arguing among other things that Olson was ineligible for bail pending appeal under Alaska Stat. § 12.30.040(b)(2) because he had been convicted of a sexual felony.[3] The superior court denied the motion “for the reasons put forth by the state.”

         Pursuant to Olson's request for self-representation, the trial court allowed Olson to represent himself on appeal. Olson filed a pro se brief arguing that: 1) the trial court erred by denying his motion to suppress; 2) the trial court erred by “not granting in propria persona before trial and after;” 3) the trial court abused its discretion by refusing to admit character evidence of the victim; 4) the superior court did not have jurisdiction over Olson; 5) he received the ineffective assistance of counsel; and 6) the trial court abused its discretion in denying his motion for bail pending appeal. The Court of Appeals unanimously affirmed Olson's convictions in a reasoned, unpublished opinion issued on February 13, 2013. Olsen, 2013 WL 596524, at *5. It nonetheless remanded Olson's case for the trial court to revisit the bail pending appeal issue and the ineffective assistance of counsel claim. Id. The appellate court concluded that the record was insufficient for the trial court to deny the ineffective assistance claim without holding an evidentiary hearing and that the trial court erred in denying the bail pending appeal issue by relying on amendments to the bail statute that did not become effective until after Olson had filed his petition for a bail hearing. Id.

         On remand, the superior court held an evidentiary hearing at which Olson testified in support of his allegations. Olson's attorney testified that she did not use racial slurs or exhibit bias against Olson. She also testified that she made no threats to Olson and that she was prepared for his trial. She further testified that, whenever possible, she had another attorney or witness present when communicating with Olson. The superior court found the attorney's testimony credible, concluding that the attorney's performance at trial corroborated her testimony that she was prepared for trial and that Olson's demeanor in court was consistent with the attorney's assertion that communicating with Olson was “challenging.” The superior court affirmed its denial of Olson's motion for a new trial. Olson appealed that decision pro se, and the Court of Appeals unanimously affirmed in a reasoned, unpublished opinion. Olsen v. State, No. A-11941, 2014 WL 4536295, at *2 (Alaska Ct. App. Sept. 10, 2014). Olson filed a pro se petition for review in the Alaska Supreme Court, raising his claims that the Court of Appeals erred by: 1) not ruling on the merits of his claim that he was subject to an unlawful arrest; 2) concluding that the superior court acted appropriately in permitting Olson to represent himself; and 3) determining that the superior court was within its discretion in not allowing the proposed testimony of Allen. The Supreme Court summarily denied the petition on September 13, 2013.

         While that appeal was still pending, Olson filed a pro se petition for post-conviction relief on the ground that much of the evidence against him was the fruit of an allegedly unlawful arrest. The superior court dismissed the petition as barred by the provisions of Alaska Stat. § 12.72.020(a).[4] Olson also filed in the superior court a pro se petition for habeas relief which again attacked the convictions on the same ground. The superior court ruled that the habeas corpus action was likewise barred by law. Olson appealed the denial of his habeas petition to the Court of Appeals. Olson v. State, 383 P.3d 661, 662 (Alaska Ct. App. 2016). Although he acknowledged that his motion for post-conviction relief was barred and that a criminal defendant is generally not entitled to pursue habeas corpus litigation where a petition for post-conviction relief would be barred, he argued that he was nonetheless entitled to pursue habeas relief because the judgment against him is void. Id. at 663. The Court of Appeals rejected Olson's argument that a criminal conviction is void if the prosecution's case was based on evidence obtained in violation of the Fourth Amendment and that, as already decided on direct appeal, the officers' warrantless entry into the residence was lawful under the emergency aid doctrine and thus no Fourth Amendment violation had been shown in any event. Id. at 663-64. Olson filed a petition for hearing to the Alaska Supreme Court on the grounds that he was subject to an unlawful arrest and that the lower courts had erred by not permitting him to litigate his claim in a state habeas proceeding. The Supreme Court denied the petition without comment on February 15, 2017.

         Olson then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on May 11, 2017. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A).

         II. GROUNDS/CLAIMS

         In his pro se Petition before this Court, Olson argues that: 1) his due process rights were violated because he was subject to an unlawful arrest, and the state courts did not rule on his “Illegal Warrantless Misdemeanor Arrest Issue;” 2) the trial court both denied him of his constitutional right to self-representation and erred in granting him pro se status; 3) his rights to confrontation and to present a defense were violated when the trial court refused to allow him to present character evidence of the victim; 4) counsel displayed racial bias against him and was ineffective for trying to coerce him into taking a plea deal; and 5) he was convicted based on unlawfully-obtained evidence.

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.'” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         IV. DISCUSSION

         A. Illegal ...


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