Allen v. Armstrong

Filing 143

ORDER granting 140 Motion to Lift Stay. A second amended 2254 petition, notice no amended petition will be filed, or notice that petition is being withdrawn due within 60 days. Counsel for Mr. Allen may file an optional reply within 30 days of service of answer. Signed by Judge James K. Singleton, Jr on 6/28/21. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ALBERT ALLEN,
Petitioner,

No. 3:08-cv-00039-JKS

vs.

ORDER LIFTING STAY

ARNALDO HERNANDEZ,
Superintendent, Spring Creek
Correctional Center,1
Respondent.

Albert Allen, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. Allen is in the custody of the Alaska
Department of Corrections (“DOC”) and incarcerated at Spring Creek Correctional Center. This
Court, through a previously-assigned district judge, twice stayed the instant proceedings to allow
Allen to exhaust his claims in state court. The Alaska Supreme Court recently denied Allen’s
latest petition for hearing–thus completing the proceedings on Allen’s third state post-conviction
relief (“PCR”) application. Respondent now moves to lift the stay and requests that the Court
order Allen to respond to the Motion to Dismiss at Docket No. 24, which Respondent filed on
February 2, 2009.

1

Arnaldo Hernandez, Superintendent, Spring Creek Correctional Center, is
substituted for Garland Armstrong, former Division Director, Alaska Department of Corrections.
FED. CIV. R. P. 25(c).
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I. BACKGROUND/PRIOR PROCEEDINGS
Allen was charged with the first-degree murder of Devron Labat following an altercation
between the two. On direct appeal of his conviction, the Alaska Court of Appeal recounted the
following facts underlying the charges against Allen:
In the early morning hours of June 15, 1994, Devron Labat, Julie Yourell, and
Mindy Famulski were driving around Anchorage. They decided to visit Allen’s
apartment to speak to him about a friend of theirs, Michelle Acquino. There was some
tension between Labat and Allen, because Acquino had had intimate relations with both
men.
Yourell and Labat came to Allen’s door. When Allen answered, Yourell asked
him whether Acquino was present in the apartment. Allen replied that she was not.
Yourell apparently did not believe Allen. At this point, Labat (who had been standing to
one side) entered the doorway. It appeared to Allen that Labat was holding something
behind his back.
Allen repeated that Acquino was not there. In response, Labat threatened to kill
Allen. Allen then heard a sound like the cocking of a handgun. Yourell encouraged
Labat to “smoke” Allen (i.e., shoot him).
Allen retreated into his apartment and closed the door. He called 911, but during
his ensuing conversation with the emergency dispatcher, Allen told the dispatcher that he
would handle the situation himself. At this point, Allen saw a shadow outside his
bedroom window. Fearing that Labat was getting ready to shoot him, Allen retrieved a
knife from his kitchen and then crawled out the bedroom window, knife in hand, to “see
what was going on”.
As Allen patrolled the area outside his house, he discovered Labat kneeling by a
parked truck. Labat ran away, and Allen gave chase. Eventually, Labat stopped running
and turned to face Allen. Allen stabbed Labat; he then dropped the knife and began a
hand-to-hand struggle with Labat. Labat died as a result of the stab wound, and Allen
was indicted for first-degree murder.
Allen v. State (“Allen I”), 945 P.2d 1233, 1235 (Alaska Ct. App. 1997).
Allen’s first trial ended with a mistrial. At his second trial, Allen claimed that he acted in
self-defense, and that Labat was the first aggressor. In response, the State presented, over
defense objection, evidence that Allen had acted violently on past occasions to support its theory
that Allen was, in fact, the first aggressor. At the conclusion of trial, the jury found Allen guilty
of first-degree murder. Through counsel, Allen appealed his conviction, arguing that: 1) the
rules of evidence do not allow the introduce evidence of a defendant’s bad character for
violence, even after the defense has introduced evidence of the victim’s character for violence, or
alternatively, 2) even if the rules of evidence authorized the State to introduce evidence of

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Allen’s character for violence, Alaska Evidence Rule 4052 limited the State to proving Allen’s
character by means of reputation or opinion evidence, and it barred the State from introducing
evidence of specific instances of Allen’s violence. The Court of Appeals agreed that Rule 405
barred the State’s use of specific incidents of violence to prove Allen’s character for violence.
Allen I, 945 P.2d at 1243. It unanimously reversed Allen’s conviction and remanded his case to
the Superior Court for a new trial. Id.
Upon re-trial (the third trial), the jury convicted Allen of the lesser offense of seconddegree murder. Again proceeding through counsel, Allen appealed that conviction on the
grounds that: 1) the prosecutor tainted the jury panel during the jury selection process by
suggesting that Allen would receive a lesser sentence if he were convicted of second-degree
murder; 2) the trial court erred in refusing to grant him a continuance to prepare to answer
newly-disclosed evidence; 3) the trial judge violated his constitutional rights by having contact
with a juror outside of Allen’s and his attorney’s presence; 4) the jury instruction on self-defense
precluded him from asserting that his fear of imminent danger arose from the actions of more
than one person; and 5) his sentence was harsh and excessive. The Court of Appeals
unanimously affirmed the judgment against Allen in a reasoned, published opinion issued on
July 26, 2002. Allen v. State (“Allen II”), 51 P.3d 949, 961 (Alaska Ct. App. 2002). Allen
sought rehearing of the decision, arguing that the Court of Appeals failed to address some of his
2

That Rule provides as follows:

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of
character of a person is admissible, proof may be made by testimony as to reputation in
any community or group in which the individual habitually associated or by testimony in
the form of an opinion. On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense, proof may also be made of
specific instances of conduct.
ALASKA R. EVID. 405.
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challenges to his sentence. The appellate court granted rehearing, but adhered to its original
upholding of Allen’s 66-year sentence for second-degree murder. Allen v. State (“Allen III”), 56
P.3d 683, 685 (2002).
Allen then filed pursuant to Alaska Criminal Rule 35.1 a PCR application claiming
ineffective assistance of counsel based on his trial attorneys’ alleged failure to locate several
witnesses. See https://records.courts.alaska.gov/ (Case No. 3AN-03-06451CI, the “First PCR
Application”). After he was appointed counsel, counsel filed an amended application arguing
that his trial attorneys were ineffective for failing to: 1) call certain defense witnesses to testify at
trial in support of his self-defense/accident claim; 2) object to the self-defense instruction or
submit a self-defense instruction that included language regarding the right to self-defense from
multiple threats; 3) request a continuance when mid-trial discovery was disclosed; and 4) object
to the trial judge’s contact with a juror during deliberations outside the presence of Allen and
counsel. Allen also alleged that the trial court imposed an illegal sentence by relying on facts
not found by the jury beyond a reasonable doubt.3 The Alaska Superior Court granted the State’s
motion to dismiss for failure to set forth a prima facie case for relief. Allen appealed the
dismissal to the Alaska Court of Appeals, which affirmed. See Allen v. State (“Allen IV”), 153
P.3d 1019 (Alaska Ct. App. 2007). Allen petitioned for hearing, which the Alaska Supreme
Court summarily denied. See https://appellate-records.courts.alaska.gov/ (Case No. S-12663).
In February 2008, Allen filed in this Court a pro se Petition for Writ of Habeas Corpus.
Docket No. 1. After counsel was appointed, Docket No. 9, Allen filed an Amended Petition
(Docket No. 19, “Petition”) alleging seven grounds for relief, including his ineffective assistance
claim relating to counsel’s alleged failure to call three proposed witnesses at trial–Jim Snyder,
Michelle Arms, and Michelle Estelle. Respondent moved to dismiss the Petition for failure to
exhaust his state-court remedies as to counsel’s failure to locate two of the potential defense
witnesses–Snyder and Arms. Docket No. 24. In response, Allen moved for a stay of these

3

See Blakely v. Washington, 542 U.S. 296 (2004).
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proceedings, informing the Court that he was in the process of pursuing a second PCR
application in state court challenging the adequacy of his attorney in the First PCR Application
under Grinols v. State, 74 P.3d 889 (Alaska 2003).4 Docket No. 30. This Court, through a
previously-assigned district judge, granted the stay under Rhines v. Weber, 544 U.S. 269 (2005).5
Docket No. 39.
In state court, Allen claimed that: 1) his trial attorneys were ineffective for failing to
procure Arms’s testimony (but not Snyder’s); and 2) his previous PCR attorney was ineffective
for failing to prove the ineffectiveness of his trial attorneys. See https://records.courts.
alaska.gov/ (Case No. 3AN-08-10050CI, the “Second PCR Application”). The Superior Court
dismissed the Second PCR Application for failure to state a prima facie case for relief. The
Court of Appeals affirmed the dismissal in a reasoned, unpublished opinion issued on November
21, 2012. See Allen v. State, No. A-10904, 2012 WL 5893466, at *6 (Alaska Ct. App. Nov. 21,
2012). The Alaska Supreme Court summarily denied Allen’s petition for hearing on January 14,
2013. See https://appellate-records.courts.alaska.gov/ (Case No. S-14983).
Upon completion of proceedings on the Second PCR Application, Allen moved in these
proceedings for another stay and abeyance. Docket Nos. 87. In support of his stay application,
Allen’s second PCR counsel submitted an affidavit stating that she did not preserve the federal
issues in those proceedings because she “was not guided by Petitioner’s federal claims in
selecting which issues [she] raised . . . in the Grinols petition.” Docket No. 87 at 1. The Court
granted the request and issued another stay of these proceedings. Docket Nos. 108, 109.
Allen then filed a third pro se PCR application in 2014. See https://records.courts.
alaska.gov/ (Case No. 3AN-14-07560CI, the “Third PCR Application”). A new attorney was
appointed, and an amended petition filed. In that petition, Allen averred that his trial and PCR
4

Under that precedent, criminal defendants in Alaska have a right to file a second
PCR application against their attorney in a first PCR application. Grinols, 74 P.3d at 889.
5

In Rhines, the Supreme Court held that a district court has discretion to enter a
stay of proceedings in “mixed” petitioner where any of the claims in a petition are unexhausted
with state remedy potentially available. 544 U.S. at 274.
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counsel were ineffective with respect to the failure to call Snyder, Arms, and Estelle at trial.
Respondent moved to dismiss, and a counseled opposition was filed. After hearing argument,
the Superior Court dismissed the amended application as res judicata and barred by Alaska
Statute 12.72.020(a)(5).6 Through a different attorney, Allen appealed the dismissal to the Court
of Appeals. See https://appellate-records. courts.alaska.gov/ (Case No. A-12775). Counsel
conceded that the Superior Court correctly dismissed his Third PCR Application, but he
nonetheless argued that Allen was entitled to a remand because Allen’s appointed attorney on
that application was ineffective.7 The Court of Appeal disagreed, and affirmed the Superior
Court’s dismissal in a reasoned, unpublished opinion issued on June 24, 2020. The Alaska
Supreme Court denied Allen’s petition for hearing on December 3, 2020. See
https://appellate-records. courts.alaska.gov/ (Case No. S-17845).
II. DISCUSSION
Respondent now moves the Court to issue an order lifting the stay of these proceedings
and requiring Allen to file a response to the 2009 Motion to Dismiss Respondent at Docket No.
24. Docket No. 140. Allen opposes the request, stating that Allen “has since returned to state
Superior Court to pursue additional post-conviction relief remedies in a fourth PCR application
which would allow him to litigate claims that he has so far been denied an opportunity to
present.” Docket No. 141 at 2; see https://records.courts. alaska.gov/ (Case No. 3AN-2007877CI, the “Fourth PCR Application”).8 The history of this case, however, shows that Allen
has had more than adequate opportunity to raise the federal nature of his claims to the Alaska
6

That stature bars PCR claims that have been “decided on its merits or on
procedural grounds in any previous proceeding.” AS 12.72.020(a)(5).
7

See Tazruk v. State, 67 P.3d 687 (Alaska Ct. App. 2003) (remanding unsuccessful
PCR applications where the petitioner’s attorney was facially ineffective or intentionally avoided
filing a no-merit certificate).
8

A review of the state court record of those proceedings indicates that, since the
parties completed briefing on Respondent’s stay request, the Superior Court has now dismissed
the Fourth PCR Application.
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state courts through a fully-litigated direct appeal and three counseled PCR applications. As the
Ninth Circuit has recognized, “routinely granting stays would undermine the [Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”)] goals of encouraging finality and streamlining
federal habeas proceedings.” Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014). The
interests of justice warrant the lifting of the stay here.
III. CONCLUSION AND ORDER
The stay issued in this case for the express purpose of exhausting Allen’s federal claims
shall be lifted. Because more than a decade has passed since the filing of Respondent’s 2009
motion to dismiss at Docket No. 24, the Court will grant Allen an opportunity to file an amended
complaint rather than file a response to Respondent’s 2009 motion to dismiss.
IT IS THEREFORE ORDERED:
1.

The Motion to Lift the Stay at Docket No. 140 is GRANTED.

2.

Counsel for Mr. Allen shall review the record, confer with Mr. Allen, and file:
1) a second amended § 2254 petition; 2) a notice that no amended petition will be
filed; or 3) a notice that the petition is being withdrawn, within sixty (60) days
from the date of this Order.

3.

If Mr. Allen files an amended petition or elects to proceed on the Amended
Petition at Docket No. 19, Respondent shall file and serve either an answer or a
motion in response within sixty (60) days from the date of service of the amended
petition or notice. See Rule 4, Rules Governing § 2254 Cases. The Court also
notes its preference that procedural issues be addressed concurrently with the
merits of the habeas petition. If not already provided to the Court, any response
shall be accompanied by any and all transcripts or other documents relevant to the
determination of the issues presented in the application. See Rules 4 and 5, Rules
Governing § 2254 Cases.

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4.

Counsel for Mr. Allen may file and serve an optional reply within thirty (30) days
of service of Respondent’s answer.

Dated: June 28, 2021.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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