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David v. Conant

United States District Court, D. Alaska

January 22, 2019

DAVID N DAVID, Petitioner,
JOHN CONANT, [1] Respondent.


          JAMES K. SINGLETON, JR. Senior United States District Judge

         David N David, a state prisoner now represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. David is in the custody of the Alaska Department of Corrections and incarcerated at Goose Creek Correctional Center. After this Court, through a previously-assigned judge, appointed counsel for David, counsel filed an Amended Petition (“Petition”). Docket No. 16. David concurrently moved to stay these proceedings and hold them in abeyance while he pursues post-conviction relief in state court. Docket No. 11-1. Respondent has answered the Petition, Docket No. 17, and has opposed the motion to stay, Docket No. 14. The motion to stay is now before the undersigned judge and ripe for adjudication.


         On June 14, 2001, David was charged with one count of sexual assault in the first degree and one count of sexual assault in the fourth degree in an indictment that alleged David had engaged in non-consensual sexual penetration of the victim D.H. David pled not guilty and proceeded to a jury trial, which began on October 30, 2001. The jury was unable to reach a verdict, and the trial court declared a mistrial. On June 25, 2002, the State retried the case in a second jury trial. On direct appeal of his conviction, the Alaska Court of Appeals laid out the following facts underlying the charges against David and the evidence presented at trial:

Sometime after midnight, D.H. was dropped off at home by a taxi. She lived at the Swanson apartments in Bethel. However, D.H. was locked out and was unable to get anyone to let her into her apartment. She began walking back to Hospital Housing, where she had been earlier that night.
At some point a young Alaska Native man approached D.H. from the opposite direction. The man was wearing glasses, a black baseball hat, and a black jacket with white stripes down the sleeves. The man claimed to know D.H., and her boyfriend Paul Chief, and he asked D.H. to go with him to a party on Alder Street. D.H. did not recognize the man. After initially agreeing to accompany him, she quickly changed her mind.
D.H. turned to walk away, but the man grabbed her from behind and pulled her behind a nearby hardware store. D.H. fought against the man, but he hit her in the jaw. He then pinned her down, removed her pants, and penetrated her vagina with his fingers. D.H. testified that this attack continued for “a long time.”
At some point a woman, Margene Egoak, happened by. Egoak saw a man kneeling over D.H. with his hand covering her mouth. Egoak described this man as young and Native. When Egoak approached to check on D.H., the man ran away. Egoak then helped D.H. put on her pants and shoes, and later helped her flag down a police officer. While assisting D.H., Egoak found a black “Raiders” baseball cap near the site of the attack. She gave this hat to the police.
Bethel Police Sergeant Terry Stonecipher interviewed D.H. in the hospital. Based on the description provided by D.H. and Egoak, Sergeant Stonecipher suspected that the assailant was David. This suspicion was based on the fact that Sergeant Stonecipher believed that David lived on Alder Street and the fact that David had been dressed in black pants, coat, and hat during all of Stonecipher's previous contacts with him. Immediately after speaking with D.H., Sergeant Stonecipher went to the crime scene and recovered a CD case and condom packages which were on the ground. Sergeant Stonecipher attempted to contact David at the Alder Street address, but he had recently moved out.
In the days after the assault, D.H.'s boyfriend, Paul Chief, pointed out different men to D.H. and asked whether any of them was her assailant. Some time after the assault, Chief and D.H. saw a man across the street. Chief asked D.H. if this man was her assailant. At first D.H. said she didn't know, but after getting a better look, she said he “looks like the guy.”
D.H. then called Sergeant Stonecipher and told him that she had identified the man who had assaulted her and his name was David David. Sergeant Stonecipher prepared a photo lineup of six men including David. The other five men had roughly the same appearance as David. D.H. “immediately pointed [to] . . . David David as the person who assaulted her.”
David's cousin Alfred Nicolai testified that, around the time of the attack, he had overheard David telling his [David's] brother that he was “scared that the police were looking for him and that [the] woman he raped might have told on him.” David later told Nicolai not to tell the police what he had said or he would “beat [Nicolai] up.”

David v. State, No. A-8548, 2005 WL 662691, at *1-2 (Alaska Ct. App. Mar. 23, 2005).

         At the conclusion of the second trial, the jury found David guilty as charged. The trial court found that David was a worst offender and sentenced him to 30 years of imprisonment for the first-degree sexual assault conviction, along with ...

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