Allen v. Armstrong

Filing 167

DECISION AND ORDER: The petition is DENIED. A Certificate of Appealability shall not issue. Signed by Judge Ralph R. Beistline on 1/27/23. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALBERT L. ALLEN,

Case No. 3:08-cv-00039-RRB

Petitioner,
v.
JAMES MILBURN, Superintendent of
Spring Creek Correctional Center,
Respondent.

I.

DECISION AND ORDER ON
PETITIONER’S SECOND AMENDED
MOTION FOR WRIT OF HABEAS
CORPUS PURSUANT TO
28 U.S.C. § 2254

INTRODUCTION

Before the Court is Petitioner Albert Allen’s Second Amended Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 at Docket 155. Respondent James
Milburn has filed an answer to Allen’s petition 1 and Allen has replied. 2 For the reasons
explained in this decision, Allen’s petition will be denied.
II.

BACKGROUND

A more complete account of the history of this petition may be found in the
Court’s previous order at Docket 162. 3 To briefly summarize, Allen was convicted of first-

1
2
3

Dockets 163 & 163-1.
Docket 165.
See Docket 162 at 1–5 & n.3, also available at 2022 WL 3701639.

degree murder in Alaska superior court in 1995 and received a 66-year prison sentence.
However, the Alaska Court of Appeals overturned his conviction on the ground that the
trial judge had erroneously allowed the prosecution to introduce specific evidence of
Allen’s prior bad acts to prove his character for violence. 4 The State re-tried Allen in 1999,
with a new judge presiding. This time, the jury found Allen guilty of second-degree
murder, although it acquitted him of first-degree murder. At sentencing, Allen asked the
judge to impose a reduced sentence, asserting that his case satisfied several of the statutory
mitigating factors set out in Alaska Stat. § 12.55.155(d). The judge refused, finding as a
matter of fact for sentencing purposes that Allen’s conduct had constituted first-degree
murder. The judge concluded that Allen was among the most serious second-degree
murder offenders, and he gave Allen a 66-year sentence identical to the one Allen had
received for his original first-degree murder conviction.
Allen’s conviction and sentence were affirmed on direct appeal. 5 Relevant
here, Allen’s direct appeal challenged the judge’s factual findings at sentencing and
claimed that his sentence was excessive. Allen asserted that, among other things, the judge
had erred in rejecting Allen’s proffered mitigating factors. The Alaska Court of Appeals
disagreed, holding that the judge’s sentencing findings were not “clearly mistaken” and
that Allen’s sentence was not excessive. 6 The court held that Allen’s arguments regarding
mitigating factors were “moot” because the statutory factors in Alaska Stat. § 12.55.155 do

4

See Allen v. State (Allen I), 945 P.2d 1233, 1239–43 (Alaska App. 1997).
Allen v. State (Allen II), 51 P.3d 949 (Alaska App. 2002); Allen v. State (Allen III), 56 P.3d 683
(Alaska App. 2002) (rehearing).
6
Allen II, 51 P.3d at 961.
5

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Order re Second Amended § 2254 Petition

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not apply to crimes that are not governed by presumptive sentencing under Alaska law,
such as murder. 7 Allen then filed a post-conviction relief (PCR) application in Alaska
superior court, but the superior court denied it and the Alaska Court of Appeals again
affirmed. 8
In 2008, Allen filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 in this Court.9 The Court appointed counsel to represent Allen in his petition.10
Over the years, the Court twice has stayed proceedings in this case so that Allen could
exhaust his state remedies by filing additional PCR applications in Alaska state court.
Allen’s petition originally asserted seven claims for habeas relief. However, Allen has
since abandoned three of his claims,11 and the Court has dismissed three others pursuant to
Respondent’s motion. 12 The Court now makes a decision on the merits of Allen’s sole
remaining claim.
III.

LEGAL STANDARDS

Section 2254 of Title 28 of the U.S. Code allows federal courts to “entertain”
applications for writs of habeas corpus on behalf of “person[s] in custody pursuant to the
judgment of a State court . . . on the ground that [they are] in custody in violation of the
Constitution or laws or treaties of the United States.” 13 “If the petition is not dismissed,
the judge must review the answer, any transcripts and records of state-court proceedings,

7
8
9
10
11
12
13

Allen III, 56 P.3d at 684–85.
Allen v. State (Allen IV), 153 P.3d 1019 (Alaska App. 2007).
Dockets 1, 19.
Docket 9.
See Docket 155 (2nd Amend. Pet.).
Docket 162.
28 U.S.C. § 2254(a).

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and any [other] materials submitted . . . to determine whether an evidentiary hearing is
warranted.” 14
Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), a federal court cannot grant a § 2254 petition “with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of the
claim – (1) resulted in a decision that was contrary to, or involved an unreasonable
determination of, clearly established Federal law, as determined by the Supreme Court of
the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 15
IV.

DISCUSSION

In his petition’s sole remaining claim, Claim 7, Allen asserts that the Alaska
Court of Appeals’ decision on his direct appeal violated his federal due process rights.
Allen claims that the Court of Appeals “denied Allen meaningful review of his sentence”
when it concluded that his arguments regarding statutory mitigating factors were “moot”
and declined to consider them. Allen states that the Court of Appeals’ decision “was
particularly egregious [because] the sentence imposed on Allen for second-degree murder
was identical to the sentence imposed on Allen (in the previous trial) for first-degree
murder – despite the fact that Allen was acquitted of first-degree murder by the final jury.”
Allen asserts that the Court of Appeals should have held that the sentencing judge’s actions

14
15

Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts.
28 U.S.C. § 2254(d).

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violated the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 16 which addressed
whether facts that increase a sentence must be found by a jury instead of a sentencing
judge. 17
Respondent maintains that Claim 7 “fails at the first step” because “federal
law does not guarantee ‘meaningful review’ even of a federal judge’s reasons for imposing
a particular sentence.” Respondent points to caselaw establishing that neither federal nor
Alaska appellate courts have the authority to review the lengths of criminal sentences that
are within statutory limits. Respondent further asserts that even if the Court of Appeals
had considered Allen’s arguments, it still would have affirmed the superior court’s
sentence. 18
The Court concludes that the record conclusively establishes the legal
invalidity of Allen’s claim. Controlling federal precedent establishes that “[w]here a state
guarantees the right to direct appeal, . . . the state is required to make that appeal satisfy the
Due Process Clause.” 19 This constitutional rule imposes requirements on “the procedures
used in deciding appeals.” 20 At a minimum, the rule requires states to provide indigent
criminal appellants with attorneys and transcripts of their trial court proceedings. 21 Allen

16

530 U.S. 466 (2000).
Docket 155 at 22–24.
18
Docket 163 at 7–11.
19
Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990).
20
Evitts v. Lucey, 469 U.S. 387, 393 (1985) (emphasis added); see also, e.g., Tamalini v. Stewart,
249 F.3d 895, 902 (9th Cir. 2001) (“[B]ecause states are not required to provide appellate review at all, a
convicted defendant has no Sixth Amendment rights on appeal . . . . If, however, the State elects to furnish
an avenue for appeal, its procedures must comport with the Due Process and Equal Protection Clauses of
the Fourteenth Amendment.” (emphasis added)).
21
Evitts, 469 U.S. at 393–94.
17

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does not explain how, under existing precedents, the Court of Appeals’ dismissal of his
argument might have violated his procedural due process rights. Allen’s mitigating-factor
arguments before the Alaska Court of Appeals challenged the accuracy of the sentencing
judge’s factual findings. But the Court of Appeals declined to reach these arguments
because, as a matter of Alaska law, “when a judge’s authority to impose a particular
sentence does not rest on the judge’s findings concerning contested aggravating or
mitigating factors, any challenges to the judge’s findings are moot.”22 Allen fails to explain
how, as a procedural matter, the court’s decision violated his federal due process rights.
Additionally, Allen has not provided any legal authority for the proposition that the federal
Due Process Clause prohibits an appellate court from summarily rejecting a criminal
appellant’s argument, and the Court has discovered no such authorities in its own research.
Furthermore, Allen’s citation to Apprendi is unavailing. In Apprendi, the
U.S. Supreme Court held that the Sixth and Fourteenth Amendments jointly require that
any fact—other than a prior conviction—that increases the penalty for a crime beyond its
prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt. 23

As Allen’s reply memorandum concedes, Allen’s case involved no such

circumstances. 24 At the time of his sentencing, Allen faced a statutory range of 5 to 99
years for his second-degree murder conviction. 25 Therefore, when the sentencing judge

22

Allen III, 56 P.3d at 685.
Apprendi, 530 U.S. at 490.
24
Docket 165 at 4.
25
The Alaska Legislature has amended Alaska’s felony sentencing statute many times since
Allen’s conviction in 1999. At present, Alaska’s prescribed statutory penalty for second-degree murder is
15 to 99 years in prison, increased to 20 to 99 years in certain cases involving victims under the age of 16.
See Alaska Stat. § 12.55.125(b).
23

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decided to impose a 66-year sentence based on his factual finding that Allen’s conduct had
constituted first-degree murder, the judge’s finding did not increase Allen’s criminal
penalty beyond the crime’s prescribed statutory maximum. The finding merely was part
of the judge’s exercise of his discretionary authority within the bounds of the relevant
Alaska state statute. 26 As such, the Alaska Court of Appeals’ decision did not violate
Allen’s due process rights under Apprendi.
As a final matter, Allen’s arguments regarding the substantive effect of the
sentencing judge’s findings do not warrant habeas relief. This argument, which Allen
emphasizes in his reply memorandum, asserts fundamental unfairness in the length of
Allen’s sentence based largely on the fact that the sentencing judge found Allen’s conduct
to constitute first-degree murder despite Allen’s acquittal on that charge. 27 Assuming for
the purposes of this decision that Allen has properly raised and exhausted this claim,28 the
Court nevertheless concludes that such a claim has no legal validity. Allen raised the
allegedly excessive nature of his sentence in his direct appeal, but the Alaska Court of
Appeals expressly rejected his claim on its merits. Consequently, AEDPA would prohibit
the Court from granting relief on such a claim unless Allen’s petition demonstrated that the
decision “was contrary to, or involved an unreasonable application of, clearly established

26

Cf. Apprendi, 530 U.S. at 481 (“We should be clear that nothing in [the] history [of the common
law] suggests that it is impermissible for judges to exercise discretion—taking into consideration various
factors relating both to offense and offender—in imposing a judgment within the range prescribed by
statute.”).
27
See Docket 165 at 3–5.
28
In his reply memorandum, Allen’s arguments seem to shift toward challenging the legality of
the sentencing judge’s actions, not the appellate court’s actions. See Docket 165 at 5–6. But based on
Allen’s filings, the Court’s past orders have interpreted Claim 7 of Allen’s petition as a challenge of the
constitutionality of the appellate court’s actions.
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Federal law, as determined by the Supreme Court of the United States” or “was based on
an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 29 Allen’s petition makes no such demonstration, and it cites only a
statement from three Supreme Court justices’ dissent from a denial of certiorari to support
his position. 30 To the contrary, however, controlling Supreme Court holds that a jury does
not “necessarily reject” facts when it returns a not-guilty verdict, and a sentencing judge
therefore is free to consider facts and conduct of which a defendant was found not guilty
when imposing a sentence that otherwise is within statutory limits as long as the facts are
proven by a preponderance of the evidence. 31 Therefore, even if Allen had properly
preserved and asserted a claim regarding the length of his sentence and the judge’s factual
findings regarding Allen’s conduct, the record would affirmatively establish the legal
invalidity of such a claim.
For these reasons, the Court concludes that Claim 7, the sole surviving claim
of Allen’s § 2254 petition, will be denied.
V.

CERTIFICATE OF APPEALABILITY

Federal law prohibits appeals from denials of § 2254 and § 2255 motions
unless a Certificate of Appealability has first been issued. 32 A Certificate of Appealability
may issue only if “the applicant has made a substantial showing of the denial of a

29

28 U.S.C. § 2254(d).
Docket 155 at 23.
31
United States v. Watts, 519 U.S. 148, 155–57 (1997) (per curiam). The Ninth Circuit has held
that the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220 (2005), did not
affect this core holding from Watts. United States v. Mercado, 474 F.3d 654, 656–57 (9th Cir. 2007).
32
28 U.S.C. § 2253(c)(1).
30

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constitutional right.” 33 To make such a showing, a habeas petitioner must demonstrate
“that reasonable jurists could debate whether . . . the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” 34
Based on its analysis of his § 2254 motion, the Court concludes that Allen
has not made a substantial showing of a denial of a constitutional right. In the Court’s
view, reasonable jurists could not disagree with the Court’s resolution of his claim, nor
could they conclude that the issues he raises are “adequate to deserve encouragement to
proceed further.” 35 Therefore, a Certificate of Appealability shall not issue regarding this
petition. 36
VI.

CONCLUSION

The Court concludes that the Alaska Court of Appeals’ decision in Allen’s
case did not violate Allen’s federal due process rights. Furthermore, Allen has not shown
that that court’s decision was contrary to or involved an unreasonable application of
established Supreme Court precedent, nor that it was based on an unreasonable
determination of the facts in light of the evidence presented.
Accordingly, Allen’s petition is DENIED. The Clerk of Court is directed to
close this case.

33

28 U.S.C. § 2253(c)(2).
Towery v. Schriro, 641 F.3d 300, 311 (9th Cir. 2010) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
35
Id. (quoting Slack, 529 U.S. at 484).
36
The Court’s ruling regarding a Certificate of Appealability does not prevent Allen from seeking
a Certificate from the Ninth Circuit directly. See 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b).
34

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Dated this 27th day of January, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge

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