United States District Court, D. Alaska
ORDER [RE: MOTION TO STAY AT DOCKET NO.
K. SINGLETON, JR. Senior United States District Judge
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
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
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
David v. State, No. A-8548, 2005 WL 662691, at *1-2
(Alaska Ct. App. Mar. 23, 2005).
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 ...