Vann v. State of Alaska

Filing 2

ORDER REGARDING PETITION: Mr. Vann may file Notice of Voluntary Dismissal or Amended Petition for Writ of Habeas Corpus on or before 8/31/2015. (See order for details). Signed by Judge Sharon L. Gleason on 07/29/2015. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JOHN WHITEHORSE VANN, 1
Petitioner,
vs.
STATE OF ALASKA,
Respondent.

Case No. 3:15-cv-00117-SLG

ORDER REGARDING PETITION
On July 9, 2015, John Whitehorse Vann, a state prisoner representing
himself, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254,
challenging his 30-year sentence and conviction for sexual assault and kidnapping
in State of Alaska Superior Court Case Number 3SW-03-00116CR. 2 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.” 3 If
so, “the judge must dismiss the petition.” 4

1

The Court notes that Mr. Vann’s middle name is listed as “Lee” rather than “Whitehorse”
in his state court criminal proceedings. John Lee Vann v. State of Alaska, 229 P.3d 197
(2010).
2

Docket 1.

3

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

Id.

1.

When filing a federal habeas petition, a petitioner must comply with the
Antiterrorism and Effective Death Penalty Act.
A petition filed under § 2254 “is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA).” 5 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). 6
Under § 2254, habeas relief is available to a state prisoner only if his custody
violates federal law. 7 A claim for habeas relief must include reference to a specific

5

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

6

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

7

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).
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federal constitutional guarantee, as well as a statement of the facts that entitle the
petitioner to relief. 8
2.

A habeas petitioner must fully exhaust his or her state court remedies before
bringing a federal petition for writ of habeas corpus.
Habeas relief is not available “unless the applicant has exhausted the

remedies available in the courts of the State.” 9 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.” 10 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.” 11
Further, the United States Supreme Court has held that “review under
§2254(d)(1) is limited to the record that was before the state court that adjudicated

8

Gulbrandson v. Ryan, 738 F.3d 946, 992 (9th Cir. 2013) (“In order to ‘fairly present’ an
issue to a state court, a [habeas] petitioner must ‘present the substance of his claim to
the state courts, including a reference to a federal constitutional guarantee and a
statement of facts that entitle the petitioner to relief.’”) (citation omitted).

9

28 U.S.C. § 2254(b)(1)(A).

10

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations and internal quotation marks
omitted).
11

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, and 302.
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the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a statecourt adjudication that ‘resulted in’ a decision that was contrary to, or ‘involved’ an
unreasonable application of, established law. This backward-looking language
requires an examination of the state-court decision at the time it was made. It
follows that the record under review is limited to the record in existence at that
same time, i.e., the record before the state court.” 12
The Court takes judicial notice 13 that Mr. Vann appears to have fully
exhausted Ground 3, his claim that DNA evidence should not have been presented
by one lab technician about the results of DNA testing conducted by another lab
technician, in violation of the Confrontation Clause. 14
Mr. Vann, however, brings three other claims for relief. In Ground 1, he
claims that he received ineffective assistance of counsel as to several issues; in
Ground 2, he claims a “violation of the rape shield law” for being prohibited from
presenting evidence of the “complaining witness’ prior false allegations of sexual

12

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011); see also Harrington v. Richter, 562
U.S. 86, 92 (2011) (“[T]he availability of federal habeas relief is limited with respect to
claims previously ‘adjudicated on the merits’ in state-court proceedings.”).
13

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).
14

Docket 1 at 8; Vann v. State, 229 P.3d 197, petition for hearing denied, S-13868
(11/23/10).
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assault”; and in Ground 4 he claims that he was denied his right to a speedy trial. 15
The Court of Appeals decision does not mention any of those grounds for relief in
its decision on direct appeal. 16
The public record shows that, after Mr. Vann completed his direct appeal,
he filed a petition for post-conviction relief in the Superior Court for the State of
Alaska. 17 That case was dismissed on January 29, 2015. 18

Mr. Vann has filed

an appeal from that decision, which is pending before the Alaska Court of Appeals,
and is currently in the briefing stage. 19 Thus, Mr. Vann may be in the process of
exhausting his remaining grounds for relief. 20

15

Docket 1 at 5, 7, 10.

16

Vann, 229 P.3d at 211 (“Vann raises one additional claim of error. In the prosecutor’s
opening statement at Vann’s trial, the prosecutor told the jury that, during the investigation
of the case, the State obtained two search warrants—one warrant to search Vann’s
vehicle, and the other warrant requiring Vann to submit to a physical examination for
evidence pertinent to a charge of sexual assault.”).
17

See http://www.courtrecords.alaska.gov/eservices, John L. Vann v. State of Alaska,
3SW-11-00057CI (filed 8/9/11).
18

Id.

19

See http://www.appellate.courts.state.ak.us/frames1.asp?Bookmark=A12208, John L.
Vann v. State of Alaska, A-12208 (filed 2/17/15).
20

Ground 1 of this Petition contains Mr. Vann’s claim of ineffective assistance of counsel.
Docket 1 at 5. Mr. Vann is cautioned that, “[a]s a general matter, each ‘unrelated alleged
instance [ ] of counsel’s ineffectiveness’ is a separate claim for purposes of exhaustion.”
Gulbrandson, 738 F.3d at 992.
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3.

The federal habeas statute of limitations is tolled while a properly filed state
petition for post-conviction relief is pending.
There is a one-year limitations period in which to file a habeas petition under

28 U.S.C. § 2254:
A 1–year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
... or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence. 21
But under the statute, “[t]his one-year limitations period is tolled during the
pendency of a ‘properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim....’ § 2244(d)(2).” 22 The
Supreme Court explains that “[t]he time that an application for state post-conviction
review is ‘pending’ includes the period between (1) a lower court’s adverse

21

28 U.S.C. § 2244(d)(1).

22

Mardesich v. Cate, 668 F.3d 1164, 1169 (9th Cir. 2012).

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determination, and (2) the prisoner’s filing of a notice of appeal, provided that the
filing of the notice of appeal is timely under state law.” 23
Direct review of Mr. Vann’s judgment became final on November 23, 2010, 24
and Mr. Vann did not file his petition for post-conviction relief until August 9, 2011. 25
So although the one-year limitations period appears to have been stayed since
August 9, 2011, several months of the one-year statute of limitations had already
run prior to that date. Therefore, after the post-conviction relief proceeding has
been concluded in the state court, and assuming the result is unfavorable to him,
Mr. Vann should immediately file a petition under 28 U.S.C. § 2254 in this Court if
he seeks federal habeas relief.
Mr. Vann may elect to proceed solely on his one exhausted ground for relief
now. However, this Court may not consider a second or successive § 2254 petition
without first receiving authorization from the Court of Appeals for the Ninth
Circuit. 26 And federal law limits the type of cases that can be presented in a second

23

Evans v. Chavis, 546 U.S. 189, 191 (2006) (emphasis in original) (citation omitted).

24

See http://www.appellate.courts.state.ak.us/frames1.asp?Bookmark=S13868, Vann v.
State, S-13868.

25

See http://www.courtrecords.alaska.gov/eservices/, Vann v. State, 3SW-11-00057CI.

26

See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted
by this section is filed in the district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider the application.”).

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or successive application. 27 That is, by proceeding now on the one exhausted
claim, Mr. Vann risks being precluded from obtaining habeas review of his
unexhausted grounds for relief in the future.
4.

The respondent in a federal habeas case is the petitioner’s custodian.
Mr. Vann has named the State of Alaska as the Respondent in his Petition. 28

The Court of Appeals for the Ninth Circuit, however, explains as follows:
It is well-established in our Circuit that a petitioner for habeas corpus
relief under 28 U.S.C. § 2254 must name “the state officer having
custody of him or her as the respondent to the petition.” Stanley v.
Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see also Rule
2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts; . . .. “This person typically is the warden of the facility
in which the petitioner is incarcerated.” Stanley, 21 F.3d at 360. We
explained in Stanley that “[f]ailure to name the petitioner’s custodian
as a respondent deprives federal courts of personal jurisdiction” over
the custodian. Id. 29

IT IS THEREFORE ORDERED:
1.

Mr. Vann may file the enclosed Notice of Voluntary Dismissal, without
prejudice, on or before August 31, 2015. Mr. Vann may then promptly file
a timely new Petition for Writ of Habeas Corpus in this Court after all issues
that he seeks to raise are exhausted in the state courts by presentation first

27

See 28 U.S.C. § 2244(b)(2).

28

Docket 1 at 1.

29

Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004) (further citations omitted).

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

The Clerk of Court is directed to send form PS09, Notice of Voluntary
Dismissal, to Mr. Vann with this Order.

3.

In the alternative, on or before August 31, 2015, Mr. Vann may file an
Amended Petition on the Court’s habeas form, using his legal name, 30
naming his custodian (the warden) as the respondent, and setting forth only
fully exhausted grounds for relief. 31

4.

The Clerk of Court shall send Mr. Vann the Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 form, with this Order.

30

John Lee Vann v. State of Alaska, 229 P.3d 197 (2010).

31

As another alternative, Mr. Vann may file a motion for a stay and abeyance of this case
until all of his claims have been exhausted in the state courts. In the case of a “mixed
petition” (where some claims are exhausted and others are unexhausted), the United
States Supreme Court has “approved the use of stay and abeyance in ‘limited
circumstances,’ . . . [where] ‘[1] the petitioner had good cause for his failure to exhaust,
[2] his unexhausted claims are potentially meritorious, and [3] there is no indication that
the petitioner engaged in intentionally dilatory litigation tactics.’” Blake v. Baker, 745 F.3d
977, 980 (9th Cir. 2014) (quoting Rhines v. Weber, 544 U.S. 269, 275-76, 278 (2005)).
The Ninth Circuit explains that “good cause turns on whether the petitioner can set forth
a reasonable excuse, supported by sufficient evidence, to justify that failure. . . . An
assertion of good cause without evidentiary support will not typically amount to a
reasonable excuse justifying a petitioner’s failure to exhaust.” Id. at 982 (citing Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005)).
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5.

The Court will take no further action in this case until Mr. Vann complies with
this Order. If Mr. Vann fails to comply with this Order, this action will be
dismissed without further notice.

6.

The Clerk of Court is directed to send a copy of the District Court’s
handbook, “Representing Yourself in Alaska’s Federal Court,” to Mr. Vann
with this Order.
Dated at Anchorage, Alaska this 29th day of July, 2015.
/s/ SHARON L. GLEASON
United States District Judge

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