United States District Court, D. Alaska
ORDER OF DISMISSAL
JAMES
K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE
Bobby
Dupree, 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. § 2241. Docket No. 1
(“Petition”). Dupree is in the custody of the
Alaska Department of Corrections (“DOC”) and
incarcerated at Spring Creek Correctional Center on his 2002
conviction for first-degree sexual assault.[1] In his Petition,
Dupree does not challenge that conviction but rather contends
that the DOC has erred in calculating his sentence and
compliance credits such that he is entitled to immediate
release. Although Dupree purports to bring his claims under
28 U.S.C. § 2241, the Court construes the Petition as
brought pursuant to 28 U.S.C. § 2254 because § 2254
is the exclusive vehicle for a habeas petition by a state
prisoner in custody pursuant to a state court judgment,
[2]
even where, as here, the petitioner is not challenging the
underlying state court conviction. See White v.
Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004),
overruled on other grounds by Hayward v. Marshall,
603 F.2d 546 (9th Cir. 2010).
This
Court, through a previously-assigned district judge, granted
Dupree's request for Court-appointed
counsel.[3] Docket Nos. 8, 10. Appointed counsel
notified the Court that he intended to rely on the pro
se motion at Docket No. 1.[4] Docket No. 15. Respondent has
answered, and Dupree has not replied. The case is now before
the undersigned judge for adjudication.
I.
GROUNDS/CLAIMS
In his
pro se Petition before this Court, Dupree challenges
the calculation and execution of his sentence and apparently
avers that he is entitled to immediate release. Specifically,
Dupree argues that: 1) he is being held past the maximum term
of imprisonment; 2) “the date parole ends must be given
to parolee;” 3) his parole “has not been tolled
correctly;” and 4) “the appellant's parole
cannot be extend[ed] beyond the maximum release date.”
II.
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).
III.
DISCUSSION
The
thrust of Dupree's claims is that DOC has erred in
calculating his sentence and accounting for his time in
custody. As relief for the alleged errors, he seeks an order
requiring DOC to adjust his time accounting by correcting his
release date and the end date of his parole supervision.
Respondent
urges the Court to dismiss the Petition for lack of
exhaustion. This Court may not consider claims that have not
been fairly presented to the state courts. 28 U.S.C. §
2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29
(2004) (citing cases). Exhaustion of state remedies requires
the petition to fairly present federal claims to the state
courts in order to give the state the opportunity to pass
upon and correct alleged violations of its prisoners'
federal rights. Duncan v. Henry, 513 U.S. 364, 365
(1995). A petitioner must alert the state courts to the fact
that he is asserting a federal claim in order to fairly
present the legal basis of the claim. Id. at 365-66.
To satisfy the “fairly present” requirement, the
petitioner must present his or her federal claim to
“each appropriate court (including a state supreme
court with powers of discretionary review)” so that the
each court is alerted to the federal nature of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan
v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). In
Alaska, this means that claims must first be presented to the
Alaska Superior Court. If the petitioner disagrees with that
result, the claim should be raised to the Alaska Court of
Appeals, and if he disagrees with that result, the claim
should be raised in a petition for hearing to the Alaska
Supreme Court. Respondent correctly notes that it does not
appear that Dupree has presented his claims all the way to
the Alaska Supreme Court.
Moreover,
the Court take judicial notice[5] that the state court records
indicate that Dupree filed in the Alaska Superior Court an
application for post-conviction relief pursuant to Alaska
Criminal Rule 35.1(a)(5) on March 11, 2019. See
https://records.courts.alaska.gov/ (No. 3AN-19-05861C). The
records indicate that the State moved to dismiss the
application, and Dupree replied. Id. The records
further indicate that the case remains pending while
additional briefing has been ordered. Id. In his
response in the instant case, Respondent attaches a copy of
Dupree's state post-conviction relief application, Docket
No. 17-1, the ...