Washington v. Driver

Filing 22

REPORT AND RECOMMENDATION recommends GRANTING re 14 MOTION to Dismiss filed by Joe Driver. Signed by Judge Leslie C. Longenbaugh on 3/27/13. (NKD, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

AARON WASHINGTON,
Petitioner,
v.
JOE DRIVER,

Respondent.

)
)
)
) Case No. 1:11-cv-000016- TMB-LCL
)
)
) REPORT AND RECOMMENDATION ON
) MOTION TO DISMISS CLAIM FOR
)FAILURE TO EXHAUST STATE
)REMEDIES [DOCKET 14]
)
)
I. MOTION PRESENTED

At Docket 14, Respondent Joe Driver requests that this court dismiss
one of two claims in Petitioner Aaron Washington’s Petition for Habeas Corpus
[Dkt. 1] and Amended 28 U.S.C. § 2254 Petition [Dkt. 10]. Mr. Driver argues
that Mr. Washington failed to exhaust state remedies before raising the claim.
Mr. Washington opposes the motion, contending that Mr. Driver’s argument
depends on an overly narrow reading of the Alaska Supreme Court appeal [Dkt.
19].
II. FACTS
The facts as set out herein are derived from the parties’ submissions,
including exhibits [Dkt. 14, 19, and 21].

Washington v. Driver, 1:11-cv-0016-TMB-LCL
Report and Recommendation

In 2008, a jury convicted Aaron Washington in State of Alaska Superior
Court of first- and third-degree misconduct involving a controlled substance
(MICS). Mr. Washington was sentenced to prison. He appealed to the Alaska
Court of Appeals, arguing, inter alia, that the State had presented insufficient
evidence to support his conviction of first-degree MICS, which was based on his
actions in organizing, supervising, and managing at least five persons in a
continuing criminal enterprise. The Court of Appeals, finding sufficient
evidence, upheld the conviction.
In July 2011, Mr. Washington sought review by the Alaska Supreme
Court [Dkt. 14-31]. His Prayer for Review raised two issues; the first, which is
the subject of the present motion, asked whether the Court of Appeals “erred
when it ignored the issue of a void of case law on what it means to ‘organize,
supervise or other[wise] manage’ for purposes of a criminal enterprise and
failed to define this section under Alaska law.” [Dkt. 14-31, p. 1.] The Alaska
Supreme Court denied the petition for a hearing. [Dkt. 14-32.]
Mr. Washington next brought a Petition for Habeas Corpus [Dkt. 1],
which he later amended [Dkt. 10]. The Amended Petition argues that the Court
of Appeals erred in ruling the evidence sufficient to support the conviction for
first-degree MCIS [Dkt. 10, pp. 5-12].

Washington v. Driver, 1:11-cv-0016-TMB-LCL
Report and Recommendation

Mr. Driver has moved to dismiss the sufficiency-of-the-evidence claim,
arguing that Mr. Washington did not exhaust state remedies. The claim, Mr.
Driver argues, was not before the Supreme Court, and therefore did not meet
the habeas corpus threshold of having been fairly presented to the state courts.
Mr. Washington maintains that “[s]ufficiency of evidence is interwoven” in his
first issue in the Supreme Court Petition for Review [Dkt. 19, p. 3], and so he
exhausted state remedies before petitioning for habeas corpus.
III. ANALYSIS
Petitioner did not exhaust the sufficiency-of-the-evidence claim in
state court.
Before a petitioner in state custody may obtain habeas relief, he must
demonstrate that he “has exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). Here, Mr. Washington raised an issue in the
Court of Appeals that he did not specifically include when he petitioned to the
state’s highest court. He then included the issue in his Amended 28 U.S.C. §
2254 Petition. Mr. Washington implicitly concedes the prerequisite of raising
the issue in all courts below [Dkt. 19]. The question, then, is whether the
Petition for Review to the Supreme Court adequately preserved the sufficiencyof-the-evidence argument, making it viable in the habeas petition.

Washington v. Driver, 1:11-cv-0016-TMB-LCL
Report and Recommendation

Exhaustion of state remedies means, in part, that the petitioner must
“fairly present” the claim to the state’s highest court, giving the state courts the
“‘opportunity to pass upon and correct’ alleged violations of its prisoners’
federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v.
Connor, 404 U.S. 270, 275 (1971) (citation omitted).
Mr. Washington cites no case law to support his argument that
sufficiency of the evidence is “interwoven” in his Supreme Court petition point
that requests clarity in the definition of the elements of a continuing criminal
enterprise in Alaska [Dkt. 19, p. 3], and so he has exhausted state court
remedies. In fact, such an implied argument does not meet the legal standard
for exhaustion. In Rose v. Palmateer, 395 F.3d 1108 (9th Cir. 2005), cert.
denied, 125 S.Ct. 2971, the court considered a habeas petitioner’s similar
argument, that although he did not explicitly raise certain claims in the Oregon
courts, he “indirectly” raised them through other claims. The Ninth Circuit
wrote:
Furthermore, petitioners must plead their claims with
considerable specificity before the state courts in order to satisfy
the exhaustion requirement. See, e.g., Duncan v. Henry, 513 U.S.
364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (“[M]ere similarity
of claims is insufficient to exhaust”); Lyons v. Crawford, 232 F.3d
666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir.
2001) (“[A] petitioner must make the federal basis of the claim
explicit either by citing federal law or the decisions of federal
courts, even if the federal basis is ‘self-evident’ or the underlying
claim would be decided under state law on the same

Washington v. Driver, 1:11-cv-0016-TMB-LCL
Report and Recommendation

considerations that would control resolution of the claim on federal
grounds.” (internal citations omitted)); Johnson v. Zenon, 88 F.3d
828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state
court to the fact that he is raising a federal constitutional claim,
his federal claim is unexhausted regardless of its similarity to the
issues raised in state court”).
In addition to requiring specificity in pleading the federal
nature of a claim, we also require a petitioner to articulate the
substance of an alleged violation with some particularity. In Kelly
v. Small, 315 F.3d 1063 (9th Cir. 2003), we held that although the
petitioner had exhausted a claim of ineffective assistance based on
counsel's failure to object to several instances of alleged
prosecutorial misconduct, the petitioner had not exhausted a
related ineffective assistance claim that was premised on counsel's
failure to file a motion to recuse the prosecutor based on that same
misconduct. Id. at 1068 n. 2. We held that “it was incumbent
upon Petitioner to set forth the alleged failure to file a motion to
recuse as an independent constitutional claim in order to give the
California Supreme Court a ‘full and fair opportunity’ to act upon
it, rather than hope that the court would infer this Sixth
Amendment claim from the related failure to object.” Id.
See also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (issue not fairly presented in
state court where petitioner/appellant did not set out the issue specifically).
In appealing to the Alaska Supreme Court, Mr. Washington did not
“fairly present” the claim that the prosecution presented insufficient evidence,
in the trial court, to convict him of first-degree misconduct involving a
controlled substance.
III. CONCLUSION
Based on well-established law that requires a petitioner to have fairly
presented all issues in state court that he wishes the federal court to consider

Washington v. Driver, 1:11-cv-0016-TMB-LCL
Report and Recommendation

in his habeas corpus petition, this court respectfully recommends that Mr.
Driver’s Motion to Dismiss Claim for Failure to Exhaust State Remedies be
GRANTED.
Dated this 27th day of March, 2013.

s/LESLIE LONGENBAUGH
UNITED STATES MAGISTRATE JUDGE

Washington v. Driver, 1:11-cv-0016-TMB-LCL
Report and Recommendation