United States District Court, D. Alaska
ORDER RE MOTION TO DISMISS
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 29 is Respondent Mike Gilligan's
motion to dismiss Ms. Welton's First Amended Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254(d)
(“Petition”). Ms. Welton opposed at Docket 32,
and Respondent replied at Docket 33. Oral argument was not
requested and was not necessary for the Court's
determination.
BACKGROUND
On May
31, 2002, an Alaska state jury found Ms. Welton guilty of
first-degree murder, second-degree murder, first-degree
attempted murder, and first-degree arson.[1]On direct appeal,
the Alaska Court of Appeals affirmed Ms. Welton's
conviction.[2]Pursuant to Criminal Rule 35.1, Ms. Welton
filed an Application for Post Conviction Relief From
Conviction or Sentence (“First PCR Application”)
in the state court.[3] Among other assertions, Ms. Welton
maintained that she “was not afforded effective
assistance of counsel at trial or on direct
appeal.”[4] She based this assertion on her trial
counsel's failure to impeach her son, Jeremiah, regarding
his prior admission that he had taken sleeping
pills.[5] On May 27, 2008, the Superior Court denied
Ms. Welton's First PCR Application.[6]The Court of
Appeals affirmed on May 25, 2011, [7] and on July 27, 2011, the
Alaska Supreme Court denied Ms. Welton's petition for
hearing.[8]
While
still litigating her First PCR Application, Ms. Welton filed
a Second PCR Application on February 17, 2010, [9] which she amended
dated April 16, 2013.[10] The issues raised in her second
petition do not relate to the current question before this
Court. On March 3, 2014, the Superior Court granted the
state's motion to dismiss Ms. Welton's Second PCR
Application.[11] Ms. Welton appealed that decision to the
Court of Appeals, [12] which affirmed the Superior Court's
ruling on December 6, 2017.[13] The Alaska Appellate Courts
website indicates that Ms. Welton filed a petition for
hearing with the Alaska Supreme Court on January 8, 2018,
[14]
which the Supreme Court denied on April 4,
2018.[15]
While
still litigating her Second PCR Application, Ms. Welton filed
her first § 2254 petition in the District of Alaska on
June 26, 2012, [16] which she amended on April 22,
2013.[17] The amended petition alleged, among
other claims, ineffective assistance of trial counsel for
failing to cross examine Jeremiah regarding his use of
sleeping pills. Ms. Welton acknowledged that her other three
claims had not been exhausted in the state court. As to the
sleeping pills claim, the Court held that Ms. Welton had not
fairly presented a federal claim on that issue to the Alaska
Supreme Court, and hence it too was not properly exhausted.
Accordingly, the District Court granted the State's
motion to dismiss all four claims for failure to exhaust and,
on January 27, 2014, dismissed the petition.[18]
Ms.
Welton then filed an application with the Alaska Court of
Appeals, dated November 18, 2014, pursuant to Alaska Rule of
Appellate Procedure 404 in which she attempted to include a
federal claim challenging trial counsel's failure to
impeach Jeremiah with his admission about sleeping pill
use.[19] The Clerk of the Appellate Courts
refused to file the application, stating that Rule 404
“is not a vehicle to allow an untimely
appeal.”[20] A single judge of the Court of Appeals
affirmed the Clerk's decision on January 9, 2015,
[21]
as did a Court of Appeals panel on February 6,
2015.[22] The Supreme Court of Alaska denied Ms.
Welton's petition for hearing on July 9,
2015.[23]
On
August 25, 2015, Ms. Welton filed with this Court a Petition
for Writ of Habeas Corpus under 28 U.S.C. §
2254.[24] Ms. Welton amended her petition at
Docket 27 to bring three claims, including an ineffective
assistance of counsel (“IAC”) claim based on the
failure to cross-examine Jeremiah regarding his use of
sleeping aids (“Claim One”).[25]She later
abandoned Claim Three.[26] As to Claim Two, the parties agreed
that it had not been properly exhausted. This Court adopted
the Magistrate Judge's report that recommended dismissal
of that claim for failure to exhaust.[27] In its
analysis, the Court found that good cause for the failure to
exhaust had not been established, because on the merits, Ms.
Welton's claim that her first PCR counsel was ineffective
was without merit.[28] The Court adopted the Magistrate
Judge's ruling that “[i]t would be premature to
find that Welton's first claim has been procedurally
defaulted, under the total exhaustion doctrine, ”
because her petition was mixed at that time.[29] Ms. Welton
did not notify the Court whether she opted to delete the
unexhausted claim, and the Court therefore dismissed the case
on November 1, 2017.[30] Ms. Welton filed a notice of
appeal.[31]However, Ms. Welton's motion for
voluntary dismissal of the appeal was later granted, and the
matter was remanded to this Court to proceed on Claim
One.[32] Respondent now maintains that the
remaining first claim is procedurally defaulted.
LEGAL
STANDARD
I.
Procedural Default
The
U.S. Supreme Court has long declined to “review a
question of federal law decided by a state court if the
decision of that court rests on a state law ground that is
independent of the federal question and adequate to support
the judgment.”[33] In the district court, “[t]he
[independent and adequate state ground] doctrine applies to
bar federal habeas when a state court declined to address a
prisoner's federal claims because the prisoner had failed
to meet a state procedural requirement.”[34]
“For
a state procedural rule to be ‘independent,' the
state law ground for decision must not be ‘interwoven
with the federal law.'”[35] “A state law ground
is so interwoven if ‘the state has made application of
the procedural bar depend on an antecedent ruling on federal
law [such as] the determination of whether federal
constitutional error has been
committed.'”[36] “To qualify as an
‘adequate' procedural ground, a state rule must be
‘firmly established and regularly
followed'.”[37] “A rule can be firmly
established and regularly followed . . . even if the
appropriate exercise of discretion may permit consideration
of a federal claim in some cases but not
others.”[38]
II.
Excuse of Procedural Default
A.
Cause and Prejudice
“[A]n
adequate and independent finding of procedural default will
bar federal habeas review of the federal claim, unless the
habeas petitioner can show ‘cause' for the default
and ‘prejudice attributable thereto,' or
demonstrate that failure to consider the federal claim will
result in a ‘fundamental miscarriage of
justice.'”[39] “To demonstrate cause, the
petitioner must show the existence of ‘some objective
factor external to the defense [which] impeded counsel's
efforts to comply with the State's procedural
rule.'”[40]The U.S. Supreme Court in Martinez v.
Ryan, concerned about instances in which “the
initial-review collateral proceeding [is] a prisoner's
one and only appeal as to an ineffective-assistance claim,
” established a narrow exception: “Inadequate
assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at
trial.”[41] In Alaska, the initial-review collateral
proceeding is not “a prisoner's one and
only appeal as to an ineffective assistance claim”; the
Alaska Court of Appeals held in Grinols v. State
that “a defendant may be entitled to relief if they can
later prove that their [first] post-conviction relief
attorney's performance was not competent, and they must
be allowed an opportunity to present this claim in a second
petition for post-conviction relief.”[42]
B.
Miscarriage of Justice
“[I]n
an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default.”[43] “The miscarriage of justice
exception to cause serves as an additional safeguard against
compelling an innocent man to suffer an unconstitutional loss
of liberty, guaranteeing that the ends of justice will be
served in full.”[44] “In order for [a petitioner] to
overcome the procedural bar by means of the miscarriage of
justice exception, he must supplement his claim with a
‘colorable showing of factual
innocence;'”[45] in other words, “it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable
doubt.”[46]
DISCUSSION
I.
Procedural Default
Respondent
first asserts that Claim One is procedurally defaulted.
Respondent maintains that, in Ms. Welton's first §
2254 proceeding, “this court held that the claim was
procedurally defaulted because, although [Ms.] Welton raised
the claim in her first state post-conviction action, she did
not present the federal nature of the claim in her petition
to the state supreme court.”[47] This assertion is not
entirely correct. In Ms. Welton's first § 2254
proceeding, this Court held that the claim had not been fully
exhausted in the state court, but it did not reach the
procedural default question.[48]
At the
time of the first § 2254 proceeding, Ms. Welton had not
yet filed her Rule 404 Application in the state court. Ms.
Welton maintains that she has now exhausted “the
federal merits of this claim” by presenting her
“Rule 404 Applications . . . in the Alaska Court of
Appeals and the Alaska Supreme Court. Those courts have
freestanding power to dispense with the Rules prohibiting
otherwise untimely petitions for rehearing when failure to do
so would result in manifest injustice.”[49] She claims
that Rule 404's “discretionary nature”
precludes it from being “‘independent' and
‘adequate' to bar federal
relief.”[50] Respondent replies that “Rule 404
was not the proper vehicle to challenge the court of
appeals' earlier ruling.”[51]
Ms.
Welton does not appear to challenge the independence of Rule
404. Although Rule 404 “is a close cousin of the
federal ‘All Writs Act', ” the Rule does not
rely on a federal right for its application.[52] Therefore, it
is independent. Ms. Welton does challenge Rule 404's
adequacy. She notes that Rule 404 would permit the state
appellate courts to reach the merits when “necessary to
correct obvious errors.”[53] However, the U.S. Supreme
Court has held that “a state procedural bar may count
as an adequate and independent ground for denying a federal
habeas petition even if the state court had discretion to
reach the merits despite the default.”[54] The Court
added: “Discretion enables a court to home in on
case-specific considerations and to avoid the harsh results
that sometimes attend consistent application of an unyielding
rule.”[55] Discretion renders a state ground
inadequate “when discretion has been exercised to
impose novel and unforeseeable requirements without fair or
substantial support in prior state
law[.]”[56]Here, the Alaska Court of Appeals refused
to consider the merits of Ms. Welton's 404 Application,
finding it was not the appropriate procedural device for her
claim.[57] Ms. Welton makes no showing that the
Alaska Court of Appeals' refusal to allow her to cure her
procedural default through Rule 404 imposed “novel and
unforeseeable” requirements on her. Moreover, as
Respondent points out, “other avenues of relief were
available to [Ms.] Welton: she could have raised the issue in
a petition for rehearing or a post-conviction relief
application.”[58] Based on the foregoing, Ms. Welton's
federal IAC claim regarding trial counsel's cross
examination of Jeremiah's use of sleeping pills is
procedurally defaulted.
II.
Excuse of Procedural Default
A.
Whether Martinez Applies Respondent argues that
“Martinez does not apply in Alaska because
Alaska has a vehicle under state law for challenging the
ineffectiveness of post-conviction
counsel.”[59]“Not only does Alaska appoint
counsel in post-conviction actions, it also protects the
right to effective assistance of counsel in such actions,
” as recognized by the Alaska Court of Appeals in
Grinols v. State.[60] “[A] defendant may file
a successive application for post-conviction relief asserting
that his post-conviction attorney's performance in the
earlier action was incompetent. Counsel is usually appointed
in such cases.”[61] This protection, Respondent asserts,
“negates the Supreme Court's concern in
Martinez; there is no need for the federal court to
excuse the procedural default because in Alaska there is a
vehicle for raising the issue in state
court.”[62]
Ms.
Welton responds by citing to Trevino v. Thaler, in
which the U.S. Supreme Court held that Martinez
applied where state requirements made it possible but
“highly unlikely” for a petitioner to raise an
IAC claim on direct appeal.[63] Ms. Welton maintains that
Alaska “is not exempt from the Martinez rule
simply because there is a possibility that a
defendant can present a trial-counsel IAC claim outside of
the post-conviction relief process. . . . [I]t is
‘highly unlikely' that a trial counsel IAC claim
can be adjudicated in Alaska outside of the initial-review
PCR process.”[64] Ms. Welton further argues that the
“availability of review” in Alaska “is not
a substitute for federal habeas review” because Alaska
requires a “more demanding” showing “to
present a procedurally defaulted IAC claim” than
Martinez requires “to excuse a procedurally
defaulted IAC claim[.]”[65]
Respondent
replies, “the question is whether a Grinols
claim offers a meaningful opportunity for a state prisoner to
challenge the ineffectiveness of his post-conviction
attorney, thereby opening the door to a renewed claim of
trial-counsel ineffectiveness if successful. It clearly
does.”[66] Further, Respondent maintains,
“[a] procedural default is excused under
Martinez because, without federal review, there
would be no meaningful opportunity for review of the
claim”[;] the same is not true in Alaska.[67]
Aside
from her citation to Trevino, Ms. Welton has not
shown that “it is ‘highly unlikely' that a
trial counsel IAC claim could be adjudicated in Alaska
outside of the initial-review PCR
process.”[68] The Texas procedural rules at issue in
Trevino made it so difficult to raise an IAC claim
on direct appeal that “Texas' highest criminal
court has explicitly stated that ‘[a]s a general
rule' the defendant ‘should not raise an
issue of ineffective assistance of counsel on direct
appeal,' but rather in collateral review
proceedings.”[69] Ms. Welton fails to explain how
Texas's procedural hurdles would apply in Alaska. Without
more, Ms. Welton's assertion fails.
Ms.
Welton also maintains that “[t]he showing necessary to
present a procedurally defaulted IAC claim under
[Grinols] is more demanding - both in terms of the
quantum of evidence needed and the legal standard that is
applied - than the showing necessary to excuse a procedurally
[defaulted IAC] claim under
[Martinez].”[70] That may be true. But nowhere
in Martinez does the Court suggest that a
state's requirements to renew an IAC claim must match the
federal requirements. The Martinez Court's
concern was with instances in which “the initial-review
collateral proceeding [is] a prisoner's one and only
appeal as to an ineffective-assistance claim . . .
.”[71] Grinols eliminates that concern
by allowing a second PCR application challenging the
effectiveness of the first PCR attorney as a vehicle renew to
a challenge to the effectiveness of the trial attorney,
particularly because, as Respondent represents to the Court,
“[a]ppointment of counsel is discretionary but rarely
denied in such cases.”[72] Therefore, the Court finds
that Martinez does not apply in Alaska. Ms. Welton
has failed to establish cause to excuse her procedural
default.
B.
Miscarriage of Justice Exception
Neither
party briefed this issue. Claim One makes no assertion
regarding Ms. Welton's innocence. Based on the foregoing,
the Court will find no miscarriage of justice as to Claim
One.
CONCLUSION
In
light of the foregoing, Respondent's Motion to Dismiss at
Docket 29 is GRANTED. The Clerk of Court is directed to enter
a final judgment accordingly. The Court further finds that
Ms. Welton has not made the requisite substantial showing of
the denial of a constitutional right, and therefore a
certificate of appealability will not be issued by this
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