Lepping v. State of Alaska, District court at Anchorage

Filing 14

ORDER Regarding Motion to Dismiss at Docket 7 . (CC: DQA) (Jan, Chambers Staff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

KURT LEPPING
Petitioner,
vs.
RON TAYLOR, COMMISSIONER,
ALASKA DEP’T OF CORRECTIONS,

Case No. 3:14-cv-00227-RRB

Respondent.
ORDER REGARDING MOTION TO DISMISS
Counsel for Kurt Lepping filed an Amended Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254, 1 challenging the judgment of conviction entered
by the Alaska Superior Court in State of Alaska v. Kurt Lepping, 3AN-1001773CR. 2 Counsel for Mr. Lepping asserted that each ground on which the
Amended Petition is based was raised in the state courts, up through and including
the Alaska Supreme Court, as required by § 2254(b). 3
The Respondent has moved to dismiss, Mr. Lepping has responded, and
the Respondent has replied. 4 In the Motion to Dismiss, the Respondent argues
that (1) the denial of Mr. Lepping’s request for a continuance by the state trial court

1

Docket 4.

2

Docket 4 at 1.

3

Id. at 2, 6-7, 12.

4

Dockets 7, 10, 11.

was decided solely on state law grounds; (2) Mr. Lepping failed to exhaust his state
court remedies on his claim of ineffective assistance of counsel; and (3) his claim
that he lacked notice of his right to a post-seizure hearing is not a cognizable
federal habeas claim. 5
1.

A Petitioner Must Comply With the Antiterrorism and Effective Death Penalty
Act When Filing a Federal Habeas Petition.
A petition filed under § 2254 “is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA).” 6 The Supreme Court explains as follows:
AEDPA instructs that, when a federal habeas petitioner challenges
the factual basis for a prior state-court decision rejecting a claim, the
federal court may overturn the state court’s decision only if it was
“based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). The prisoner bears the burden of rebutting the state
court’s factual findings “by clear and convincing evidence.”
§ 2254(e)(1). . . . [This Court] reiterate[s] “that a state-court factual
determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.”
. . . AEDPA likewise imposes a highly deferential standard for
reviewing claims of legal error by the state courts: A writ of habeas
corpus may issue only if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by” this Court. § 2254(d)(1). 7

5

Docket 7 at 1-2.

6

Clark v. Arnold, 769 F.3d 711, 724 (9th Cir. 2014).

7

Burt v. Titlow, ___ U.S. ___, 134 S. Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S.
290, 301 (2010)).
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2.

Mr. Lepping Exhausted His Claim That the State Trial Judge’s Failure to
Grant a Continuance Violated his Right to Due Process.
A state prisoner may challenge his or her judgment of conviction in federal

court only if his or her custody violates federal law. 8 The Respondent argues that
the Alaska Court of Appeals based its decision solely on state law when
addressing Mr. Lepping’s allegation that the trial court should have granted his
motion for a continuance was based upon anything other than state law. 9
Further, “the availability of federal habeas relief is limited with respect to
claims previously ‘adjudicated on the merits’ in state-court proceedings.” 10 That is,
habeas relief is not available “unless the applicant has exhausted the remedies
available in the courts of the State.” 11 So “[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.” 12 To satisfy the
exhaustion requirement, a “prisoner must ‘fairly present’ his claim in each

8

See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance
with federal law that renders a State’s criminal judgment susceptible to collateral attack
in the federal courts. . . . [W]e have repeatedly held that ‘federal habeas corpus relief
does not lie for errors of state law.’”) (further internal quotation marks and citations
omitted) (emphasis in original).

9

Docket 7 at 7.

10

Harrington v. Richter, 562 U.S. 86, 92 (2011).

11

28 U.S.C. § 2254(b)(1)(A).

12

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations and internal quotation marks
omitted).
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appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the
claim.” 13
On direct appeal, the Alaska Court of Appeals explains that “[n]ot every
denial of a request for additional time violates due process[,]” 14 citing an Alaska
Supreme Court case, Klockenbrink v. State, in support. 15 And the Alaska Supreme
Court, in discussing due process in Klockenbrink, relies upon Ungar v. Sarafite,
376 U.S. 575 (1964). 16 In Lepping, the appellate court also cites the Klockenbrink
decision for the proposition that “[o]nly an arbitrary refusal violates due process,
and whether this has occurred ‘depends upon the circumstances of each case,

13

Wood v. Milyard, ___ U.S. ___, 132 S. Ct. 1826, 1833 (2012) (citations omitted). In
Alaska, a criminal defendant may request discretionary review by the Alaska Supreme
Court. See Alaska Statutes 22.05.010, 22.07.020, 22.07.030; Alaska Rules of Appellate
Procedure 215, 301, 302.

14

Lepping, 2014 WL 2999191 at *5.

15

Id. at n. 19 (Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970)).

16

Klockenbrink, 472 P.2d at 964 (“Granting or denying a continuance traditionally has
been within the discretion of the trial judge, and not every denial of a request for additional
time violates due process.”); see also Hernandez v. Holland, 750 F.3d 843, 858 (9th Cir.
2014) (“There are no mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process.The answer must be found in the circumstances
present in every case, particularly in the reasons presented to the trial judge at the time
the request is denied.”) (quoting Ungar, 376 U.S. at 589) (internal quotation marks
omitted).

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especially the reasons supporting the request for continuance[,]’” 17 relying upon
another United States Supreme Court case. 18
As the Ninth Circuit reasoned in Peterson v. Lampert, “for purposes of
exhaustion, a citation to a state case analyzing a federal constitutional issue serves
the same purpose as a citation to a federal case analyzing such an issue.” 19
Further, both the Alaska and the United States Constitutions prohibit the
State from “depriv[ing]” any person “of life, liberty, or property, without due process
of law.” 20 Thus, the claim was presented to the Alaska “Supreme Court in such a
manner that that court had a ‘fair opportunity’ to address his claim.” 21

17

Lepping, 2014 WL 2999191 at *5.

18

Klockenbrink, 472 P.2d at 964 (“It is only an arbitrary refusal that is violative of due
process and that question depends upon the circumstances of each case, especially the
reasons supporting the request for continuance.”) (citing Nilva v. United States, 352 U.S.
385 (1957)).
19

Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

20

AK Const. Art. 1, § 7; United States Const., Amend. XIV; see also Sanders v. Ryan,
342 F.3d 991, 1000 (9th Cir. 2003) (“The right to effective assistance of counsel is
identical under the United States Constitution and the Washington Constitution. . . . When
faced with ineffective assistance of counsel claims under both the federal and state
constitutions, Washington courts analyze them both using the same . . . test.”) (citations
omitted).
21

Sanders, 342 F.3d at 1001 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)).

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The Court, therefore, agrees with Mr. Lepping that he exhausted the issue
of whether the denial of his motion for a continuance violated his right to federal
due process, 22 and the Court must address the merits of that issue. 23
3.

Mr. Lepping Has Not Properly Exhausted a Claim of Ineffective Assistance
of Counsel.
Mr. Lepping appealed his judgment of conviction and the conviction was

affirmed on July 2, 2014. 24 The Supreme Court for the State of Alaska denied a
petition for hearing on September 16, 2014. 25 And the Court takes judicial notice 26

22

Docket 10 at 4-7; see also Docket 7-5 at 2, 8-11 (Lepping v. State, S-15626, Petition
for Hearing).
23

Cf. Lee v. Kemna, 534 U.S. 362, 366-67 (2002) (“We hold that the Missouri Rules, as
injected into this case by the state appellate court, did not constitute a state ground
adequate to bar federal habeas review. . . . [T]he trial court, at the time Lee moved for a
continuance, had in clear view the information needed to rule intelligently on the merits of
the motion. . . . [U]nder the circumstances of this case, we hold that petitioner Lee, having
substantially, if imperfectly, made the basic showings [the Missouri Rule] prescribes,
qualifies for adjudication of his federal, due process claim. His asserted right to defend
should not depend on a formal ‘ritual ... [that] would further no perceivable state interest.’”)
(citations omitted).

24

Lepping v. State of Alaska, A-10935, 2014 WL 2999191 (Alaska App. July 2, 2014)
(unpublished).
25

Kurt Lepping v. State of Alaska, S-15626.

26

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[.]” Black’s Law Dictionary (10th ed. 2014); see also 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).
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that there is no public record of a post-conviction case raising ineffective
assistance of counsel in Case Number 3AN-10-01773CR.
Although Mr. Lepping asserts that he “has not so far claimed that he was
denied effective assistance of counsel based on the negligence of his trial
counsel,” 27 the Court of Appeals addresses the issue, explaining that Mr. Lepping
may not bring an ineffective assistance of counsel claim on direct appeal:
Lepping claims that his attorney provided ineffective assistance at
trial. We have consistently held that we will not consider claims of
ineffective assistance for the first time on appeal because, in most
instances, the appellate record is inadequate to allow us to
meaningfully assess the competence of the attorney’s efforts. Here,
the appellate record is inadequate to allow us to meaningfully assess
the competence of Lepping’s attorney’s efforts. Lepping’s claim of
ineffective assistance must be raised in the trial court in an application
for post-conviction relief under Alaska Criminal Rule 35.1. 28
Because Mr. Lepping has not properly exhausted an ineffective assistance
of counsel claim, the Court may not address any such claim at this time. 29

27

Docket 10 at 10 (“Respondent’s argument on this issue is nothing more than a
distraction. (Docket 7, pp. 8-10).”).
28

Lepping, 2014 WL 2999191 at *8 (citations omitted); see also Martinez v. Ryan, 132
S.Ct. 1309, 1315 (2012). (“[T]he doctrine of procedural default [provides that] a federal
court will not review the merits of claims, including constitutional claims, that a state court
declined to hear because the prisoner failed to abide by a state procedural rule. . . . A
state court’s invocation of a procedural rule to deny a prisoner’s claims precludes federal
review of the claims if, among other requisites, the state procedural rule is a nonfederal
ground adequate to support the judgment and the rule is firmly established and
consistently followed.”) (citations omitted).

29

See Docket 7 at 9 (If the time has not run to file a post-conviction petition in the state
courts, Mr. Lepping must file any petition immediately); see also Kurt Lepping v. State of
Alaska, A-12142, http://www.appellate.courts.state.ak.us/frames1.asp (Mr. Lepping has
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4.

The Seizure of Mr. Lepping’s Aircraft is Not a Cognizable Habeas Claim
Mr. Lepping argued below that his due process rights were violated when

he was denied a prompt post-seizure hearing after the ex parte seizure of his
airplanes. In arguing that the seizure violated his due process rights, Lepping relied
on both state and federal authority. 30 Contrary to the Respondent’s assertions at
Docket 7, Mr. Lepping did assert this argument in his petition to the Alaska
Supreme Court. 31
However, Respondent correctly notes that property interests such as fines
and restitution are not proper subjects for petitions under 28 U.S.C. § 2254. 32
Federal habeas corpus is concerned with a prisoner’s liberty, not his property. 33
Respondent argues that Lepping’s allegations regarding the seizure of his
airplanes does not “attack the legality of [his] prison sentence or seek his release
from custody.” 34 The Ninth Circuit has recently reiterated that “the imposition of a
fine, by itself, is not sufficient to meet § 2254's jurisdictional requirements,” even

filed another appeal, challenging his sentence, and the docket shows that his appeal is
currently “ripe for decision.”).
30

See Docket 10 at 6.

31

Docket 7, Exhibit 4 at 6-8.

32

Docket 7 at 10.

33

Docket 11 at 4 (citations omitted).

34

Docket 7 at 10 (citing United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999)).

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when the petitioner is in custody. 35 The Ninth Circuit noted that “the key issue is
whether a challenge to a restitution order by a custodial state prisoner who does
not challenge the lawfulness of his custody under federal law is sufficient for
jurisdiction under the federal habeas statute,” and concluded that it is not. 36 Each
claim independently must involve the right to be released from custody. A petitioner
cannot avoid this requirement by joining cognizable claims with non-cognizable
ones. 37 “Claims seeking release from custody can be brought under § 2255; claims
seeking other relief cannot. To determine whether a given claim is cognizable
under § 2255, we focus on the relief sought in the claim itself, not on relief sought
in other claims mentioned elsewhere in the motion.” 38
IT IS THEREFORE ORDERED:
1.

The Motion to Dismiss at Docket 7 is DENIED as to whether Mr. Lepping’s
due process rights were violated by the trial court’s failure to grant a
continuance; this issue will be addressed on the merits.

35

Bailey v. Hill, 599 F.3d 976 (9th Cir. 2010) (emphasis added).

36

Id.

37

Federal Habeas Manual § 1:7

38

United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002) (citations omitted).

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2.

The Motion to Dismiss at Docket 7 is GRANTED as to the issues of
exhaustion of an ineffective assistance of counsel claim and of seizure of
Petitioner’s aircraft. These issues are DISMISSED.
IT IS SO ORDERED at Anchorage, Alaska this 1st day of October, 2015.
/s/ RALPH R. BEISTLINE
United States District Judge

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