Gatei v. Sullivan

Filing 6

ORDER OF DISMISSAL: THAT this case is DISMISSED without prejudice. Any outstanding motions are DENIED. A Certificate of Appealability will be DENIED. Signed by Judge Sharon L. Gleason on 07/15/2014. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

SAYE BLENDOLO GATEI,
Petitioner,
vs.
CLARE SULLIVAN,
Respondent.

Case No. 3:14-cv-00132-SLG
ORDER OF DISMISSAL

On July 7, 2014, Saye Blendolo Gatei, a state prisoner representing
himself, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254,
challenging his November 12, 2013 conviction in the Superior Court for the State
of Alaska. 1 Under Rule 4 of the Rules Governing Section 2254 Cases, the Court
must review the petition to determine whether “it plainly appears from the face of
the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court.” 2 If so, “the judge must dismiss the petition.” 3 For the reasons
1

Docket 1; State of Alaska v. Saye Blendolo Gatei, 3AN-13-02174CR. The Court takes
judicial notice that, although Mr. Gatei states that the date of his judgment of conviction
is June 12, 2013, the public record shows that date to be November 12, 2013. See
http://www.courtrecords.alaska.gov/eservices; see also Black’s Law Dictionary (9th ed.
2009) (Judicial notice is “[a] court's acceptance, for purposes of convenience and
without requiring a party's proof, of a well-known and indisputable fact; the court's power
to accept such a fact.”); Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 n.
3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are appropriate for
judicial notice.”) (internal quotation marks and citation omitted).
2

Rules Governing § 2254 Cases in the United States District Courts, Rule 4. See 28
U.S.C. § 2243.

3

Id.

explained below, the Court must, therefore, dismiss this case for failure to
exhaust.
Habeas relief in federal court is not available “unless the applicant has
exhausted the remedies available in the courts of the State.” 4 That is, “[b]efore
seeking a federal writ of habeas corpus, a state prisoner must . . . giv[e] the State
the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’
federal rights.” 5

The Supreme Court has explained that “[t]he exhaustion

doctrine . . . is founded on concerns broader than those of the parties; in
particular, the doctrine fosters respectful, harmonious relations between the state
and federal judiciaries.” 6
To satisfy the exhaustion requirement, a “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.” 7
4

28 U.S.C. § 2254(b)(1)(A).

5

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations and internal quotation marks
omitted).

6

Wood v. Milyard,

U.S.

132 S.Ct. 1826, 1833 (2012) (citations omitted).

7

Baldwin, 541 U.S. at 29 (citations omitted); see also Peterson v. Lampert, 319 F.3d
1153, 1156 (2003) (“In a state like Oregon, where review in the highest court is
discretionary, a prisoner must still petition the highest court for review in order to
exhaust his claim properly.”) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
Like Oregon, in Alaska, a criminal defendant may request discretionary review by the
Supreme Court. See Alaska Statutes §§ 22.05.010, 22.07.020, 22.07.030; Alaska
Rules of Appellate Procedure 215, 301, and 302.
3:14-cv-00132-SLG, Gatei v. Sullivan
Order of Dismissal
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Mr. Gatei acknowledges that he is in the process of exhausting his claims
in the state courts. 8 And the Court takes judicial notice of the fact that the public
record supports Mr. Gatei’s assertions. The appellate court remanded the case
to the trial court, where Mr. Gatei was appointed counsel for his appeal on July 9,
2014. 9 In addition to his appeal, on February 18, 2014, Mr. Gatei filed a petition
for post-conviction relief, which is currently proceeding in the state trial court with
newly-appointed counsel. 10

Mr. Gatei must complete exhaustion of his state

court remedies by bringing each of his specific claims in the state trial court, the
state appellate court and the state supreme court, before filing a federal
petition. 11
IT IS THEREFORE ORDERED:
1.

This case is DISMISSED without prejudice. Mr. Gatei may file a timely
new case in this Court after all federal claims that he seeks to raise are
exhausted in the state courts by presentation first to the Alaska Superior
Court then, if Mr. Gatei disagrees with that result, to the Alaska Court of

8

Docket 1 at 5-9.

9

See Gatei v. State, A-11827, http://www.appellate.courts.state.ak.us; State v. Gatei,
3AN-12-02174CR, http://www.courtrecords.alaska.gov/eservices.
10

Gatei v. State, 3AN-14-05226CI, http://www.courtrecords.alaska.gov/eservices.

11

See Custer v. Hill, 378 F.3d 968, 974 (9th Cir. 2004) (“Custer did not exhaust his
state court remedies, because Custer's Petition for Review in the Oregon Supreme
Court did not reference the ineffective assistance of counsel claim at all.”).

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Order of Dismissal
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Appeals and then, if he disagrees with that result, in a petition for hearing
to the Alaska Supreme Court.
2.

Any outstanding motions are DENIED.

3.

The Clerk of Court will enter a Judgment in this case.

4.

A Certificate of Appealability will be DENIED. 12
DATED at Anchorage, Alaska, this 15th day of July, 2014.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

12

A Certificate of Appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Ninth
Circuit Rule 22-1(a) (“Petitioners appealing the district court’s judgment in either a 28
U.S.C. § 2254 or a § 2255 proceeding shall follow the procedures set forth in FRAP 4
and 22(b). A motion for a certificate of appealability (‘COA’) must first be considered by
the district court. If the district court grants a COA, the court shall state which issue or
issues satisfy the standard set forth in 28 U.S.C. § 2253(c)(2). The court of appeals will
not act on a motion for a COA if the district court has not ruled first.”).
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Order of Dismissal
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