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Dupree v. Nighswonger

United States District Court, D. Alaska

October 18, 2019

BOBBY DUPREE, Petitioner,
ZANE NIGHSWONGER, Superintendent III, Alaska Department of Corrections, Respondent.



         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.


         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.”


         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).


         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 (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 ...

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