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Kon v. Dahlstrom

United States District Court, D. Alaska

October 16, 2019

MARK JOSEPH KON, Petitioner,
v.
NANCY DAHLSTROM, Commissioner, Alaska Department of Corrections, [1] Respondent.

          MEMORANDUM DECISION

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

         Mark Joseph Kon, a former 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, seeking review of the Alaska Superior Court's revocation of his probation related to his 1998 conviction for first-degree sexual abuse of a minor. At the time he filed his Petition, Kon was in the custody of the Alaska Department of Corrections (“DOC”) and incarcerated at Goose Creek Correctional Center. Public records indicate that Kon was released on probation on May 18, 2018, and is now under supervised custody. See https://vinelink.vineapps.com/search/AK (Inmate No. 389388). Respondent has answered, and Kon has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         In 1998, Kon pleaded no contest to two counts of first-degree sexual abuse of a minor involving his daughters. He was sentenced to a composite term of 30 years' imprisonment with 18 years suspended. After serving his active term of imprisonment, Kon was released on probation in 2010. As a condition of probation, Kon was required to “actively participate in and successfully complete an approved sexual offender treatment program as directed by the Department of Corrections.” The same condition mandated that Kon “[was] not to discontinue treatment without the written approval of [his] Probation/Parole Officer.” Pursuant to this condition, Kon was assigned to a sex offender treatment program tailored to defendants, like Kon, who refused to acknowledge that they had committed a sexual offense, known as a “deniers group.”

         In September 2013, the DOC petitioned the superior court to revoke Kon's probation on the ground that he had violated the condition requiring him to engage in sex offender treatment. According to the petition, Kon was discharged from the deniers group when he yelled “Up yours!” to the group leader and said “I don't give a fuck about you or your fucking program” after the group leader asked him to leave for answering a phone call during a session. The superior court found that Kon had violated his probation and imposed 40 months of previously-suspended prison sentence.

         Through counsel, Kon appealed the revocation of his probation and his sentence, arguing that: 1) the evidence presented to the superior court was legally insufficient to support the superior court's finding that he willfully discontinued his sex offender treatment; 2) the probation condition requiring him to engage in sex offender treatment was so vague that he lacked fair notice of what conduct would constitute a violation of the condition; and 3) the 40-month sentence was excessive. The Alaska Court of Appeal unanimously affirmed the judgment of the superior court is a reasoned, unpublished opinion issued on November 29, 2017. Kon v. State, No. A-11867, 2017 WL 5998766, at *3 (Alaska Ct. App. Nov. 29, 2017) (“Kon I”).

         While the appeal was pending, Kon was released on bail in July 2014 and reassigned to the deniers group. Four months later, the DOC again petitioned the superior court to revoke Kon's probation for failure to comply with the probation condition requiring him to engage in sex offender treatment. Although Kon had attended the required sessions, he refused to acknowledge that he had sexually abused his daughters at the end of the month-long session. The superior court held an evidentiary hearing on the motion, at which Kon's probation officer testified that, even in the deniers group, “defendants are required to admit that they engaged in some kind of sexual offense, so that they ‘can then move forward [with] community-based sex offender treatment,' work out a ‘relapse prevention plan,' and work on ‘coping strategies to deal with high-risk situations.'” Kon v. State, No. A-12287, 2018 WL 480454, at *2 (Alaska Ct. App. Jan. 17, 2018) (“Kon II”). At the conclusion of the hearing, the trial court “f[ound] . . . by the preponderance of the evidence that [Kon] was discharged as unsuccessful from the deniers group.” Id. at *3. The court revoked Kon's probation and imposed 18 months of Kon's previously-suspended jail time.

         Again proceeding through counsel, Kon filed another direct appeal that challenged the second probation revocation. Kon argued inter alia that the wording of his condition of probation failed to give him sufficient notice of what it meant to “actively participate in” or “successfully complete” sex offender treatment and that his sentence was excessive. The Alaska Court of Appeal affirmed the revocation of Kon's probation and the 18-month sentence he received in a reasoned, unpublished opinion issued on January 17, 2018. Kon II, 2018 WL 480454, at *5. Kon petitioned the Alaska Supreme Court for discretionary review of both revocation decisions, which were summarily denied on March 6, 2018, and April 30, 2018, respectively.

         Kon timely filed a pro se Petition for a Writ of Habeas Corpus to this Court dated April 26, 2018. Docket No. 1; see 28 U.S.C. § 2244(d)(1), (2). Kon concurrently moved for the appointment of counsel, and a previously-assigned district court judge appointed the Federal Public Defender's Office as counsel. Docket Nos. 3, 5. After reviewing Kon's case, appointed counsel filed a Certificate of No. Merit Briefing Pursuant to Anders v. California, 386 U.S. 738 (1967). Docket No. 13 (“Anders brief”). Appointed counsel concluded that, because Kon's petitions for hearing to the Alaska Supreme Court did not cite or discuss federal law, Kon had not exhausted his potential federal habeas claims. Id. at 1. Counsel moved to withdraw from the case. Id. at 4.

         This Court held a hearing to address counsel's withdrawal motion and ordered Respondent to file briefing addressing Kon's claims for relief and the Anders certificate. Docket No. 19. The Court also ordered that the Federal Public Defender's Office would continue to represent Mr. Kon, but allowed Kon an opportunity to reply to Respondent's briefing on his own behalf and also address the Anders brief. Docket No. 27. Briefing is now complete, and the case is before the undersigned judge for adjudication.

         II. GROUNDS/CLAIMS

         In two direct appeals before the state courts, Kon challenged the two revocations of probation on the grounds that: 1) there was insufficient evidence that he violated the probation condition; 2) the probation condition was too vaguely worded to give him sufficient notice of what type of conduct would violate the condition; and 3) each sentence imposed following revocation was excessive. In his pro se Petition before this Court, Kon raises two claims relating to his initial 1998 conviction following his no contest plea. Namely, Kon contends that: 1) his original trial attorney failed to file an appeal on his behalf; and 2) he was subjected to anti-Semitic comments while incarcerated on his initial conviction.

         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 term unreasonable is a common term in the legal world. The Supreme Court has cautioned, however, that the range of reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”).

         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. ...


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