Jackson v. State of Alaska
ORDER GRANTING STAY: Petitioner to file a copy of the petition filed in state court with filing date, on or before May 26, 2021. The Clerk of Court is further directed to administratively close this case during the pendency of the stay. This closing order removes the action from the Court's active docket for record-keeping purposes; it does not affect the merits of Jackson's claims. See Order for further details. Signed by Judge James K. Singleton, Jr on 4/26/2021. (SDW, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RANDELL GENE JACKSON,
ORDER GRANTING STAY
BOB CORDLE, Superintendent, Lemon
Creek Correctional Center,1
On March 29, 2021, Randell Gene Jackson, a state prisoner proceeding pro se, filed a
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Docket No. 1 (“Petition”). Jackson
challenges his 2013 misdemeanor convictions of disorderly conduct, fourth-degree assault, and
resisting arrest following a jury trial entered by the District Court for the State of Alaska, Case
Number 1HA-12-00043CR. Id. at 1. Jackson contends that his conviction should be overturned
because the trial court issued improper jury instructions, law enforcement made false statements
in the criminal complaint against him and also at trial, the criminal complaint against him was
defective, and two jurors were improperly seated over defense objection. Id. at 5, 7, 8, 10.
Bob Cordle, Superintendent, Lemon Creek Correctional Center, is substituted for
the State of Alaska. FED. R. CIV. P. 25(c); Rule 2(a), Rules Governing Section 2254 Cases in the
United States District Courts; Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
After reviewing the Petition pursuant to Rule 4 of the Rules Governing Section 2254
Cases, the Court determined that the majority of the claims raised in the Petition had not been
presented properly to the State courts because Jackson did not petition in the Alaska Supreme
Court for hearing of the denial of his post-conviction relief (“PCR”) application. Docket No. 2
at 2-3. The Court further explained that, to raise claims before this Court on federal habeas
review, a petitioner must present those claims to the State courts and allow those courts to decide
them in the first instance. Id. The Court allowed Jackson an opportunity to address his failure to
fully raise the claims in State courts prior to filing in this Court, and gave him the option of:
1) proceeding solely on his instructional error claim, which was fully exhausted in the state
courts on direct appeal; 2) voluntarily dismissing his Petition in its entirety, which would allow
him to file a new federal habeas petition after he completed exhaustion in the state courts; or
3) requesting a stay of these proceedings while he pursued his unexhausted claims in state court.
Id. at 3-4.
In response, Jackson asks that his failure to exhaust be excused because “petitions for
hearing are regularly declined on discretion” and “it is highly unlikely” that the Alaska Supreme
Court would grant a late-filed petition for hearing. Docket No. 3 at 3. Notably, exhaustion of a
habeas claim may be excused if the petitioner cannot present his claim because there is an
absence of available state corrective process or circumstances exist that render such process
ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). The
exhaustion-of-state-remedies requirement may be excused “in rare cases where exceptional
circumstances of peculiar urgency are shown to exist.” Hendricks v. Zenon, 993 F.2d 664, 672
(9th Cir. 1993); see also Urquhart v. Brown, 205 U.S. 179, 182 (1907) (a federal court may
“sometimes appropriately interfere by habeas corpus in advance of final action by the authorities
of the [s]tate,” but such cases are “exceptional” and of “great urgency”). It is not clear from the
record or the past practices of the Alaska Supreme Court, however, that a late-filed petition for
hearing certainly would not granted. It therefore cannot be said that a state court remedy is
unavailable to Jackson such that exhaustion may be excused here.
Jackson’s response expresses a desire to raise these unexhausted claims in federal court
rather than proceed solely on the exhausted instructional error claim. Typically, a petitioner like
Jackson who files a “mixed petition” containing both exhausted and unexhausted claims may
voluntarily dismiss the entire Petition, which the Court would dismiss without prejudice to refile, and the petitioner could later file a new Petition containing all then-exhausted claims after
properly raising them through the state courts. As the Court noted in its OSC, however, that
procedure would not benefit Jackson here because the “in custody” requirement of 28 U.S.C.
§ 2254 requires a petitioner to “be ‘in custody’ under the conviction or sentence under attack at
the time his petition is filed.” See Docket No. 2 at 5 n.3. Because Jackson has now satisfied his
30-day sentence and is not subject to post-release supervision, Jackson would not meet the “in
custody” requirement if he had to file a new habeas petition.2
Jackson therefore requests that this Court issue a stay of these proceedings to allow him
to late-file in the Alaska Supreme Court a petition for hearing of the denial of his PCR
application. Docket No. 3 at 5. The Court explained in the OSC that, in proceedings like this,
where any or all claims in a petition are unexhausted with state remedy potentially available, a
district court has discretion to enter a stay of the proceedings. See Rhines v. Weber, 544 U.S.
269, 274 (2005) (stays of “mixed” petitions); Mena v. Long, 813 F.3d 907 (9th Cir. 2016)
(holding that Rhines applies to stays of fully unexhausted petitions). A Rhines stay is
inappropriate here, however, because Jackson fails to satisfy the requisite good cause for failure
to earlier exhaust his Petition. Rhines, 544 U.S. at 277.
Because Jackson expresses confusion as to the “in custody” requirement, the
Court clarifies that the requirement applies to the time the petition is filed. Maleng v. Cook, 490
U.S. 490-91 (1989). Jackson states that he was in custody at Lemon Creek Correctional Facility
when the Petition at Docket No. 1 was filed, which, if true, would satisfy the “in custody”
It appears, however, that a stay is nonetheless available to Jackson under Kelly v. Small,
315 F.3d 1063 (9th Cir. 2002), which does not require a petitioner to make a showing of good
cause.3 A Kelly stay involves a three-step procedure: “(1) a petitioner amends his petition to
delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully
exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the
deleted claims; and (3) the petitioner later amends his petition and re-attaches the
newly-exhausted claims to the original petition.” King v. Ryan, 564 F.3d 1133, 1135 (9th Cir.
2009) (citing Kelly, 315 F.3d at 1070-71).
IT IS THEREFORE ORDERED THAT Jackson’s motion for a stay is GRANTED
under Kelly on the following conditions:
On or before May 26, 2021, Jackson shall late-file in the Alaska Supreme Court
a petition for hearing of the Court of Appeals’ decision in Case No. A-13406,
which affirmed the judgment of the Superior Court denying his PCR application.
He should file with this Court a copy of the petition that shows the state court
As soon as the Supreme Court rules on that petition for hearing, Jackson must
lodge a copy of the ruling with this Court.
Assuming Jackson does not obtain relief from the Supreme Court (i.e, if the
Supreme Court does not grant his petition for hearing), the Petition at Docket No.
1, with the unexhausted claims deleted, will be held in abeyance until 30 days
after the Supreme Court’s denial. During that time, Jackson should file in this
Court a motion again raising the newly-exhausted claims. Jackson may use the
same form petition he used for filing the Petition at Docket No. 1, or even resubmit that document with the title “Motion to Amend.”
Jackson is warned that his failure to strictly comply with the terms of this Order
may result in this action being dismissed for failure to prosecute or comply with
court orders, or the stay being lifted and the Court proceeding to adjudicate only
the exhausted instructional error claim.
Moreover, a Kelly stay, unlike a Rhines stay, “does nothing to protect a
petitioner’s unexhausted claims from untimeliness in the interim.” King, 564 F.3d at 1141. This
means that, when total exhaustion has been achieved and the claims are ready to be added to the
federal petition, those claims must be timely under the one-year limitations period when they are
again presented in federal court. This means that Jackson should quickly file for hearing in the
Alaska Supreme Court and promptly again raise the claims in this Court, if necessary, once the
Supreme Court issues its decision.
The Clerk of Court is respectfully directed to send Jackson a form petition for
habeas relief, AO 241 Petition for Writ of Habeas Corpus Under 28 U.S.C.
The Clerk of Court is further directed to administratively close this case during
the pendency of the stay. This closing order removes the action from the Court’s
active docket for record-keeping purposes; it does not affect the merits of
Dated at Anchorage, Alaska this 26th day of April, 2021.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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