Dayton v. Stolc

Filing 192

ORDER OF DISMISSAL: The Amended Petition under 28:2254 for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE. The Court declines to issue a Certificate of Appealability. Signed by Judge James K. Singleton, Jr on 6/19/19. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ANDREW J. DAYTON,
Petitioner,

No. 3:03-cv-00145-JKS

vs.

ORDER OF DISMISSAL

JIM MACDONALD, Warden, Central
Arizona Detention Center; NANCY
DAHLSTROM, Commissioner, Alaska
Department of Corrections,1
Respondent.

Andrew J. Dayton, 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. § 2254. Dayton is in the custody of the
Alaska Department of Corrections and incarcerated at the Central Arizona Detention Center.
Dayton challenges his conviction following a jury trial of first-degree assault and first-degree
burglary.

1

The names of the respondents are corrected to reflect the petitioner’s
incarceration in the Central Arizona Detention Center in Florence, Arizona, as well as the
continuing jurisdiction of the Alaska Department of Corrections. 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). The term “Respondent” utilized in the body of this order is intended to
refer to both respondents, who are jointly represented by the Alaska Attorney General.
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After his request for the appointment of counsel was granted, Dayton filed an Amended
Petition raising three claims. Docket No. 22. The first claim relates to the Alaska Court of
Appeals’ decision to remand to the trial court pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) for a hearing concerning a DNA sample database
used at his trial rather than granting him a new trial. The Alaska Supreme Court denied
Dayton’s petition for a hearing to review the Court of Appeals’ decision, and thus his first claim
has been fully exhausted. Docket No. 39, Ex. A. The second claim alleges the ineffective
assistance of counsel, which was then unexhausted because he was still pursuing the claim in the
Alaska trial courts. Docket No. 172. Finally, Dayton avers that the State of Alaska is violating
his Alaska Native sovereignty rights by transferring him to a private prison in Arizona to serve
his prison term. On September 30, 2004, the Court concluded that the third claim is so plainly
frivolous that it need not await exhaustion, and dismissed it with prejudice, but stayed the first
claim and held it in abeyance until Dayton exhausted his state remedies with respect to second
claim. Docket No. 46.
On November 21, 2018, counsel filed a status report voluntarily dismissing claim 2 for
lack of exhaustion, as Dayton had terminated his post-conviction relief appeal in state court
without seeking discretionary review by the Alaska Supreme Court. Docket No. 172.
Respondent answered claim 1 and moved to dismiss it as procedurally defaulted because Dayton
failed to fairly present to the Alaska state courts a federal constitutional claim that the admission
of an Athabaskan DNA database evidence at trial violated his constitutional right to due process.
Docket No. 185. Dayton has now replied, and agrees with Respondent that the claim has been
procedurally defaulted. Docket No. 191. Dayton requests that the Court allow him to withdraw
his habeas petition without prejudice. Id.
IT IS THEREFORE ORDERED THAT the Amended Petition under 28 U.S.C. § 2254
for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE to timely refile a new
petition in federal court once Mr. Dayton has fully exhausted his state court remedies.

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IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: June 19, 2019.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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