Douglas v. Superintendent Zee Hyden
Order on Motion to Dismiss
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
JERRY LEE DOUGLAS,
SUPERINTENDENT ZEE HYDEN,
ORDER FROM CHAMBERS
Motion at Docket 71]
I. MOTION PRESENTED
At docket 71, respondent Superintendent Zee Hyden moves to dismiss the
amended petition for writ of habeas corpus filed by petitioner Jerry Lee Douglas at
docket 13 on the grounds that petitioner failed to exhaust his state court remedies as
required by 28 U.S.C. § 2254(b)(1). The motion has been fully briefed. At docket 90,
Magistrate Judge John D. Roberts filed an initial report recommending that the motion
be granted. At docket 91, petitioner timely filed objections to the report and
recommendation. Respondent filed a response to petitioner’s objections at docket 93.
At docket 94, the magistrate judge filed a final report, continuing to recommend that
respondent’s motion to dismiss be granted.
II. STANDARD OF REVIEW
The district court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”1 When reviewing a magistrate judge’s
28 U.S.C. § 636(b)(1).
report and recommendation in a case such as this one, the district court conducts de
novo review of all conclusions of law,2 and any findings of fact to which objections have
been made.3 Uncontested findings of fact are reviewed for clear error.4
The court has reviewed the report and recommendation and found that it
accurately summarizes the background facts of this case. Moreover, petitioner does
not object to any of the magistrate judge’s findings of fact. Accordingly, the court adopts
them as its own.
Petitioner Jerry Douglas filed an amended petition for writ of habeas corpus
under 28 U.S.C. § 2254, alleging he “was denied the right to effective assistance of
counsel as guaranteed by the Sixth Amendment of the United States Constitution” and
“was denied a right to due process, i.e., a fair trial, as guaranteed by the Fourteenth
Amendment” because of prosecutorial misconduct.5
At docket 71, respondent moves to dismiss petitioner’s petition for writ of habeas
corpus on the ground that petitioner did not exhaust his state remedies with respect to
either of his claims. Respondent specifically argues that “in seeking discretionary
review of the Alaska Court of Appeals’ decision affirming his conviction, Douglas failed
to alert the Alaska Supreme Court that he was asserting claims under the United States
Constitution.”6 At docket 90, the magistrate judge filed his recommendation that
respondent’s motion to dismiss should be granted based on his conclusion that
petitioner failed to alert the Alaska Supreme Court to his federal claims of ineffective
assistance of counsel and denial of due process. The magistrate judge also suggested
Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
28 U.S.C. § 636(b)(1).
Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).
Amended Petition at 4, doc. 13.
Motion to Dismiss at 2, doc. 71.
that petitioner’s brief to the Alaska Court of Appeal made only “oblique” references to
the federal constitution.7
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies, thereby giving the State the opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights.”8 “To provide the State with the
necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate
state court (including a state supreme court with powers of discretionary review),
thereby alerting that court to the federal nature of the claim.”9 To establish exhaustion,
“the petitioner must have either referenced specific provisions of the federal constitution
or cited to federal or state cases involving the legal standard for a federal constitutional
In petitioner’s brief before the Alaska Court of Appeals, petitioner explicitly
alleged that he had received ineffective assistance of counsel in violation of the United
States Constitution and cited Strickland v. Washington,11 “the Supreme Court’s central
ruling on the federal right to effective assistance of counsel.”12 In support of his due
process claim, petitioner cited Darden v. Wainwright,13 a Supreme Court case which
sets forth the legal standard for a federal due process claim based on prosecutorial
misconduct. Petitioner also cited several Ninth Circuit cases in support of his
arguments that the prosecution engaged in improper vouching and inflammatory
Recommendation at 4, doc. 90.
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotations and citations omitted).
Id. (quoting Duncan v. Henry, 513 U.S. 364, 365-366 (1995) (per curiam)).
Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005).
466 U.S. 668 (1984).
Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003).
477 U.S. 168 (1986).
arguments.14 For the foregoing reasons, the court concludes that petitioner fairly
presented both his federal ineffective assistance of counsel claim and due process
claim to the Alaska Court of Appeals.
The court next considers whether petitioner fairly alerted the Alaska Supreme
Court of the federal nature of his claims. In his petition for hearing before the Alaska
Supreme Court, petitioner alleged that he had received ineffective assistance of counsel
and that prosecutorial misconduct had deprived petitioner of his right to due process. In
support of his ineffective assistance of counsel claim, petitioner cited only one case,
namely Sanders v. Ratelle,15 a Ninth Circuit decision which analyzes a federal
ineffective assistance of counsel claim.16 The Ninth Circuit has held that citation to a
federal case “involving the legal standard for a federal constitutional violation is
sufficient to establish exhaustion.”17
As to his due process claim, petitioner cited Darden v. Wainwright, for the
proposition that “[p]rosecutorial misconduct violates a defendant’s due process rights
when it ‘so infected the trial with unfairness as to make the resulting conviction a denial
of due process.’”18 Petitioner also cited Ninth Circuit cases in support of his allegations
that the prosecution had engaged in improper inflammatory argument and in improper
vouching “in direct contradiction of federal case law.”19 In addition, petitioner alleged
that the prosecutor’s misconduct “was in contradiction to the [petitioner’s] state and
federal due process rights.”20 Applying the standards articulated above, the court
See United States v. Hermaneck, 289 F.3d 1076 (9th Cir. 2002); United States v.
Edwards, 154 F.3d 915, 921 (9th Cir. 1998); United States v. Mitchell, 172 F.3d 1104 (9th Cir.
21 F.3d 1446, 1456 (9th Cir. 1994).
Petition for Hearing at 17, attached to doc. 60.
Castillo, 399 F.3d at 999.
Petition for Hearing at 13, attached to doc. 60.
Id. at 19.
Id. at 20.
concludes that petitioner fairly presented his federal due process claim to the Alaska
Because petitioner fairly presented his federal ineffective assistance of counsel
claim and due process claim based on prosecutorial misconduct to the Alaska Supreme
Court, the court concludes that petitioner exhausted his claims in state court. Because
the magistrate judge found that petitioner’s claims were unexhausted, he did not reach
the merits of petitioner’s claims. The court will return this matter to the magistrate judge
for further proceedings on the merits of petitioner’s claims.
For the reasons set out above, the court REJECTS the magistrate judge’s
recommendation at docket 90. It is further ordered that respondent’s motion to dismiss
at docket 71 is DENIED, and this matter is RETURNED to the docket of the magistrate
judge for further proceedings on the merits of petitioner’s claims.
DATED at Anchorage, Alaska, this 22nd day of May 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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