Torrence v. Conant

Filing 45

ORDER: re Combined Motion to Dismiss and Motion for Summary Judgment 32 . Mr. Torrence's petition for habeas corpus at Docket 1 and amended petition at Docket 29 at each DISMISSED. The certificate of appealability will not be issued by this Court (see order for full details). Signed by Judge Sharon L. Gleason on 09/11/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

PATRICK TORRENCE,
Petitioner,
v.
WILLIAM LAPINSKAS,
Respondent.

Case No. 3:15-cv-00134-SLG

ORDER RE COMBINED MOTION TO DISMISS AND MOTION FOR SUMMARY
JUDGMENT
Before the Court at Docket 32 is Respondent William Lapinskas’s Combined
Motion to Dismiss, Motion for Summary Judgment, and Answer to the First Amended
Petition. The motions are fully briefed. 1 Oral argument was not requested and was not
necessary to the Court’s determination of the motions.
Mr. Torrence’s First Amended Petition for Writ of Habeas Corpus raises the
following two arguments:
1. The evidence at trial was insufficient to establish Mr. Torrence’s guilt
beyond a reasonable doubt on the kidnapping and sexual assault
charges, in violation of Mr. Torrence’s right to a fair trial and proof of
guilt on the essential elements of the charged offense, see Jackson
v. Virginia, 443 US 307 (1979).
2. The prosecutor’s failure to present exculpatory evidence to the grand
jury violated Mr. Torrence’s right to due process, see Rose v.
Mitchell, 443 U.S. 545, 557 (1979 (14th Amendment due process
applies to grand jury procedures in states). 2

1

Docket 33 (Resp’t Mem.); Docket 35 (Torrence Opp’n); Docket 43 (Reply); Docket 44
(Torrence Notice).

2

Docket 29 (First Am. Pet.) at 6.

Respondent maintains that the amended petition should be dismissed because it
fails to provide sufficient facts to support Mr. Torrence’s claims, as required by Habeas
Rule 2(c). Respondent also argues that because Mr. Torrence did not adequately present
these federal claims to the Alaska Court of Appeals, he is now precluded from asserting
these claims in state court. Finally, Respondent maintains that even if Mr. Torrence’s
claims are not procedurally defaulted, “[Mr.] Torrence’s petition fails to establish that the
Alaska Court of Appeals unreasonably applied clearly established federal law” to either
claim. 3
Mr. Torrence responds that his amended petition adequately notifies Respondent
of the claims raised on federal habeas review. And because the federal due process
standard for sufficiency of the evidence is identical to the Alaska standard, Mr. Torrence
argues they are interchangeable; thus, he maintains that by making his argument under
Alaska law, he fairly presented his federal claim on that topic to the Alaska state courts.
As for his federal grand jury claim, Mr. Torrence maintains that he fairly presented his
claim to the state court by citing to the Fifth and Fourteenth Amendments of the U.S.
Constitution.

Finally, Mr. Torrence argues that because neither claim is “palpably

incredible” or “patently frivolous,” summary dismissal is inappropriate and the Court
“should set a briefing scheduling in accordance with the Local Rules Governing Section
2254 proceedings.”4

3

Docket 32 at 5–8; Docket 33 at 2, 3.

4

See Docket 35.

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DISCUSSION
1. Habeas Rule 2(c)
As an initial matter, Respondent argues that Mr. Torrence’s petition should be
dismissed for failure to comply with Habeas Rule 2(c). That rule requires that a petition
(1) “must specify all the grounds for relief available to the petitioner,” and (2) must “state
the facts supporting each ground.” 5 “Notice pleading is not sufficient, for the petition is
expected to state facts that point to a ‘real possibility of constitutional error.’” 6 A petitioner
must state specific, particularized facts, which entitle him to habeas corpus relief for each
ground identified. “These facts must consist of sufficient detail to enable a court to
determine, from the facts of the petition alone, whether the petition merits further habeas
corpus review.” 7
Respondent argues that Mr. Torrence’s amended petition fails to comply with Rule
2(c) because it does not state the facts supporting each of Mr. Torrence’s claims. 8
Respondent adds, “[t]o the extent that Torrence might raise different claims or might rely
on legal theories or evidence different from those upon which he relied in his state court
briefings, the State has insufficient notice of such claims to provide a response.” 9
On review, the Court finds that Mr. Torrence’s amended petition adequately

5

Rule 2(c), 28 U.S.C. foll. § 2254.

6

Advisory Committee Note to Rule 4, Rules Governing Section 2254 Cases; see also
Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977).
7

Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990).

8

Docket 32 at 5–7.

9

Docket 32 at 8.

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informs Respondent of the supporting facts on which it relies. Regarding Mr. Torrence’s
sufficiency of the evidence claim, the amended petition asserts that the Alaska Court of
Appeals unreasonably applied clearly established federal law when it failed to find that
“the evidence at trial was insufficient to establish Mr. Torrence’s guilt beyond a reasonable
doubt on the kidnapping and sexual assault charges.” 10 Regarding the grand jury claim,
Mr. Torrence alleges that “the prosecutor had failed to present exculpatory evidence to
the grand jury that Torrence had handed C.T. the firearm prior to having sex, and that
C.T. had placed the firearm on the floor.” 11 The facts alleged in Mr. Torrence’s amended
petition adequately inform Respondent of the nature of the claims, such that dismissal on
this basis is unwarranted.
2. Procedural Default
Respondent next argues that Mr. Torrence failed to fairly present his federal claims
to the state court, and as a result, he failed to exhaust those claims and is now
procedurally defaulted from asserting these federal claims in state court.
Exhaustion of a federal claim for federal habeas review requires that a petitioner
fairly presented his claim to each of the state courts. “Fair presentation requires that the
petition ‘describe in the state proceedings both the operative facts and the federal legal
theory on which his claim is based so that the state courts have a fair opportunity to apply
controlling legal principles to the facts bearing upon his constitutional claim.’” 12

10

Docket 29 at 6; compare with Gonzalez v. Yates, No. C 11-02670 JSW PR, 2013 WL
1451163, at *14 (N.D. Cal. Apr. 9, 2013) (finding that petitioner did not adequately plea his
insufficient evidence claim because he failed to specify which conviction he was challenging).

11

Docket 29 at 2.

12

Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (quoting Kelly v. Small, 315 F.3d 1063,

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The procedural default rule bars consideration of a federal claim that has not been
presented to the state court when “it is clear that the state court would hold the claim
procedurally barred.” 13 Accordingly, if state court remedies are no longer available, a
petitioner’s federal claims that were never presented to the state court may be
procedurally defaulted in such circumstances.
a. Sufficiency of the Evidence
Respondent argues that Mr. Torrence’s federal sufficiency of the evidence claim
has been procedurally defaulted because Mr. Torrence failed to exhaust this claim in state
court and state court remedies are no longer available. Mr. Torrence concedes that he
referenced only Alaska law when arguing this claim on direct appeal in state court; but he
maintains that citation to federal authority is unnecessary because the Alaska and federal
standards for sufficiency of the evidence claims are identical. Mr. Torrence argues that
because the standards are identical, his reliance on state law also “fairly presented” this
federal constitutional claim; thus, this federal claim is sufficiently exhausted. 14
Respondent does not contest that the federal and state standards for insufficiency
of the evidence are identical. 15 However, Respondent argues that in state court Mr.
Torrence advocated for a completely different standard from both the state and federal
standard, and that the Ninth Circuit case law relied upon by Mr. Torrence is inapplicable

1066 (9th Cir. 2003)).
13

Cassett v. Steward, 406 F.3d 614, 621 n.5 (9th Cir. 2005) (quoting Franklin v. Johnson, 290
F.3d 1223, 1230 (9th Cir. 2002)).

14

Docket 35 at 6–7 (citing Sanders v. Ryder, 342 F.3d. 991, 1000–1001 (9th Cir. 2003), cert.
denied, 541 U.S. 956 (2004)).

15

See Docket 33 at 24–25; Docket 43 at 3–6.

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in his case. 16
In Duncan v. Henry, the Supreme Court left unresolved the question of whether a
claim can be properly exhausted when it is unclear from the petition whether the petitioner
is relying on a state or federal standard, and the two standards are the same. 17 After
Duncan was decided, the Ninth Circuit in Sanders v. Ryder held that a federal ineffective
assistance of counsel claim was properly exhausted in the state courts where the
Washington state courts had analyzed the ineffective assistance claim under the
Strickland standard, which was the standard applicable under both state and federal
law. 18 In Sanders, the Ninth Circuit found it significant both that the petitioner was selfrepresented and that he had made it “abundantly clear” in a reply brief filed in the state
appellate court “that his ineffective assistance of trial counsel claim was a federal claim.” 19
The Ninth Circuit has not applied Sanders to instances, such as this case, where the
petitioner was represented by counsel in the state court and cited there only to state law.
To the contrary, in Cook v. Schriro, the Ninth Circuit held that “[e]xclusive citation to . . .
state court cases in a counseled petition for review is not sufficient to give a ‘fair
opportunity’ to the [state court] to decide a federal claim.”20

16

Docket 43 at 3–6 (citing Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003) (en banc)).

17

Duncan v. Henry, 513 U.S. 364, 365–66 (1994) (federal due process claim not exhausted
because state and federal standards were only similar and not identical or functionally identical).

18

Sanders, 342 F.3d at 999–1000.

19

Sanders, 342 F.3d at 1001.

20

538 F.3d 1000, 1029 (9th Cir. 2008) (citing Peterson, 319 F.3d at 1159); Galvan v. Alaska
Dept. of Corrections, 397 F.3d 1198, 1204 (9th Cir. 2005) (“If a party wants a state court to
decide whether she was deprived of a federal constitutional right, she has to say so.”).

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Mr. Torrence was represented by counsel in his briefing to the Alaska Court of
Appeals and in his petition to the Alaska Supreme Court. 21 In both instances, Mr.
Torrence cited only state law for his insufficiency of the evidence claim. 22 He conducted
a thorough analysis under state law and distinguished his case from Reynolds v. State,
where the Alaska Court of Appeals held there was sufficient evidence to establish that
the defendant kidnapped and committed first-degree sexual assault against the victim. 23
Mr. Torrence’s Petition for Review to the Alaska Supreme Court does not apply or even
cite the U.S. Constitution or any federal case law on this claim, and there is no indication
that Mr. Torrence was implicitly making a federal claim. Rather, a fair reading of Mr.
Torrence’s counseled petition to the Alaska Supreme Court is that he was arguing that
the evidence at trial was insufficient under a novel standard he proposed under state
law. 24 Accordingly, the Court finds that Mr. Torrence did not fairly present his federal
sufficiency of the evidence claim to the state courts.
Mr. Torrence is now procedurally barred from returning to state court to assert this
federal claim. AS 12.72.020(a)(3)(A) bars an application for post-conviction relief if one

21

See Docket 32-4 (Ct. of Appeals Br.); Docket 32-7 (Alaska Supreme Ct. Pet.).

22

See Docket 32-4; Docket 32-7.

23

Docket 32-4 at 29 (citing Reynolds v. State, 664 P.2d 621 (Alaska App. 1983)).

24

As the Court of Appeals explained, “Torrence's argument hinges on viewing the evidence in
the light most favorable to himself. But when we assess the sufficiency of the evidence to
support a criminal conviction, the law requires us to view the evidence (and all inferences that
could reasonably be drawn from that evidence) in the light most favorable to upholding the jury's
verdict. Viewing the evidence in that light, it was sufficient to support Torrence's conviction.”
Torrence v. State, No. A-10785, 2013 WL 1283396, at *2 (Alaska Ct. App. Mar. 27, 2013) (citing
Iyapana v. State, 284 P.3d 841, 848–49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576
(Alaska App. 2009)).
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year has passed since a final decision on appeal, notwithstanding two exceptions not
applicable here. 25 Here, the Alaska Court of Appeals issued its final decision in Torrence
v. State on March 27, 2013, and the Alaska Supreme Court denied Mr. Torrence’s petition
for rehearing on May 28, 2013. 26 More than four years have passed since that order. AS
12.72.020(a)(6) also bars a successive application for post-conviction relief. Mr. Torrence
has previously filed an application with the state superior court. 27

If Mr. Torrence

attempted to return now to state court on his insufficiency of the evidence claim, he would
be procedurally barred by state law from proceeding at this time.
“A federal claim that is defaulted in state court pursuant to an adequate and
independent procedural bar may not be considered in federal court unless the petitioner
demonstrates cause and prejudice for the default, or shows that a fundamental
miscarriage of justice would result if the federal court refused to consider the claim.”28
Here, Mr. Torrence has not demonstrated cause or prejudice for the default nor has he
shown that a fundamental miscarriage of justice would result if this Court declined to
consider his federal insufficiency of evidence claim. The Court will not consider the claim
for the first time on federal habeas review. Respondent’s motion to dismiss this claim will
be granted.

25

See AS 12.72.020(b)(1) and (b)(2) (exceptions).

26

Docket 32-9.

27

See Docket 32-10 (Order Regarding Mot. to Re-Open Post-Conviction Relief) at 1.

28

Cassett v. Steward, 406 F.3d 614, 621 n.5 (citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)).

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b. Exculpatory Evidence Claim
Respondent also argues that Mr. Torrence did not fairly present a federally based
exculpatory evidence claim to the state courts. 29 Mr. Torrence responds that in his
opening brief before the Alaska Court of Appeals, he “argued that the prosecution’s failure
to inform the grand jurors that Torrence gave C.T. the gun prior to sexual intercourse
violated his due process right” to a fair and impartial grand jury, and he specifically cited
“to the Fifth and Fourteenth Amendments.”30 And Mr. Torrence notes that in his petition
to the Alaska Supreme Court, he again argued that “[t]he errors violated Torrence’s due
process right to a fair and impartial grand jury.” 31
In Galvan v. Alaska Department of Corrections, the Ninth Circuit affirmed the
district court’s dismissal of a habeas petition for failure to exhaust state remedies. 32
There, Ms. Galvan had petitioned the Alaska Supreme Court for review of her ineffective
assistance of counsel claim. The petition included twelve citations, all but one of which
were to decisions of the Alaska Supreme Court and Alaska Court of Appeals. The sole
federal citation was to a Fourth Circuit case that was cited in support of Ms. Galvan’s
argument that her lawyer performed below the Alaska minimum standard. The Ninth
Circuit held “[t]he problem with Galvan’s argument is not particularly the sparseness of
federal law in her petition to the Alaska Supreme Court . . . [but] the context in which

29

Docket 33 at 37.

30

Docket 35 at 8 (citing Docket 32-4 at 42 n.37).

31

Docket 32-7 at 11 (citing Docket 32-7 at 11 n.20).

32

397 F.3d 1198 (9th Cir. 2005).

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Galvan cited her sole federal authority.” 33
The Ninth Circuit’s holding in Galvan indicates that a single citation to federal
authority, may, in the right context, be sufficient to fairly present a federal claim. The key
consideration is whether the petitioner has done enough to “alert the state court to the
fact that the relevant claim is a federal one.”34
Here, Mr. Torrence’s filings in the state courts cited the Fifth and Fourteenth
Amendments of the U.S. Constitution in the context of his grand jury claim. The Court
finds that Mr. Torrence’s citation to the two amendments of the U.S. Constitution was
sufficient to alert the state court to the federal nature of his claim. Accordingly, Mr.
Torrence adequately exhausted his exculpatory evidence claim for purposes of federal
habeas review.
3. Exculpatory Evidence Claim
Mr. Torrence does not address the merits of his exculpatory evidence claim, but
requests that this Court set a briefing schedule to address the substance of that claims.
He maintains that his petition “clearly asserts violations of federal law for which relief is
available, and given the sharp factual disagreements between the parties, summary
disposition is improper.” 35 Respondent, however, argues that the U.S. Constitution “does

33

Galvan, 397 F.3d at 1204.

34

Galvan, 397 F.3d at 1204; Lyons v. Crawford, 232 F.3d 666, 668–669 (9th Cir. 2000), opinion
amended and superseded, 247 F.3d 904 (9th Cir. 2001); cf. Baldwin v. Reese, 541 U.S. 27, 32
(2004) (“A litigant wishing to raise a federal issue can easily indicate the federal law basis for his
claim in a state-court petition or brief, for example, by citing in conjunction with the claim the
federal source of law on which he relies on a case deciding such a claim on federal grounds, or
by simply labeling the claim ‘federal.’”).

35

Docket 35 at 9.

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not guarantee presentation of exculpatory evidence to a state grand jury,” and thus, Mr.
Torrence’s grand jury claim should be dismissed. 36
Mr. Torrence’s direct appeal in the state court asserted that the prosecutor’s failure
to present exculpatory evidence to the grand jury violated his right to due process under
both the Fifth and Fourteenth Amendment of the U.S. Constitution, as well as under state
law. On this point, the Alaska Court of Appeals held:
Evidence is “exculpatory” for purposes of the Frink rule only if the
evidence “tends, in and of itself, to negate the defendant’s guilt.” Cathey v.
State, 60 P.3d 192, 195 (Alaska App. 2002). Given the circumstance of
C.T.’s hours-long abduction, and Torrence’s repeated threats to kill C.T.,
the fact that Torrence temporarily relinquished control of the gun to C.T.,
and encouraged C.T. to shoot him, does not constitute exculpatory
evidence for purposes of Frink. More specifically, it does not substantially
undercut the State’s allegation that Torrence coerced C.T. to engage in
sexual intercourse with him. 37
Thus, the Alaska Court of Appeals decided the claim on the state law ground that the
evidence was not exculpatory, a determination that is outside the scope of federal habeas
review. 38
“District courts adjudicating habeas petitions under § 2254 are instructed to
summarily dismiss claims that are clearly not cognizable. Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Court provides that district courts ‘must dismiss’
a petition ‘[i]f it plainly appears from the petition and any attached exhibits that the

36

Docket 33 at 42.

37

Torrence v. State, No. A-10785, 2013 WL 1283396, at *5 (Alaska Ct. App. Mar. 27, 2013)
(citing Frink v. State, 597 P.2d 154, 164–65 (Alaska 1979)).

38

See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of the federal
habeas court to reexamine state-court determinations on state-law questions.”).
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petitioner is not entitled to relief in the district court.’” 39
Here, Mr. Torrence’s claim regarding a right to have exculpatory evidence
presented to the grand jury is not a cognizable federal constitutional claim. To the
contrary, is clearly established that there is no Fifth Amendment right to have exculpatory
evidence presented to a grand jury. 40 In United States v. Williams, a federal defendant
challenged his indictment on the ground that the prosecutor failed to disclose exculpatory
evidence to the grand jury. 41 The Supreme Court ruled that there was no such federal
constitutional duty, reasoning that “requiring the prosecutor to present exculpatory as well
as inculpatory evidence would alter the grand jury’s historical role, transforming it from an
accusatory to an adjudicatory body.” 42 The Supreme Court added, “It is axiomatic that
the grand jury sits not to determine guilt or innocence, but to assess whether there is
adequate basis for bringing a charge.” 43 The Supreme Court reversed the district court's
dismissal of the indictment because “[i]mposing upon the prosecutor a legal obligation to
present exculpatory evidence in his possession would be incompatible with this
system.” 44
Moreover, the Fourteenth Amendment does not impose the requirement of

39

Clayton v. Biter, No. 15-71566, 2017 WL 3585645, at *5 (9th Cir. Aug. 21, 2017).

40

Kaley v. United States, 134 S.Ct. 1090, 1097 (2014) (“‘[T]he whole history of the grand jury
institution’ demonstrates that ‘a challenge to the reliability or competence of the evidence’
supporting a grand jury’s finding of probable cause ‘will not be heard.’”) (quoting United States v.
Williams, 504 U.S. 36, 54 (1992)).
41

Williams, 504 U.S. at 36.

42

Id. at 37.

43

Id. at 51.

44

Id. at 52.

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indictment by grand jury upon the states. 45 Here, Mr. Torrence had an independent state
right to have exculpatory evidence presented under Alaska law. But “federal habeas
corpus relief does not lie for errors of state law.” 46 Therefore, even if the state court had
erred on this point, no federal constitutional violation occurred. 47
Mr. Torrence’s amended petition cites Rose v. Mitchell in support of his assertion
that “[t]he prosecutor’s failure to present exculpatory evidence to the grand jury violated
Mr. Torrence’s right to due process[.]” 48 But Rose is not on point. In Rose, the Supreme
Court held then when a state elects to indict by grand jury, then a defendant’s due process
rights are violated if “he is indicted by a grand jury from which members of a racial group
purposefully have been excluded.”49 Rose did not address whether a prosecutor must
produce exculpatory evidence to the grand jury. Rather, as clearly articulated by the
Supreme Court in Williams and its progeny, the federal Constitution does not mandate
the disclosure of exculpatory evidence at grand jury proceedings. Because Mr. Torrence
has no cognizable federal claim on this point, summary dismissal is warranted.

45

Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993) (citing Hurtado v. California, 110 U.S.
516 (1884)).

46

Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (quoting Estelle v. Maguire, 502 U.S. 62, 67
(1991)).

47

See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (“The district court may enter an
order for the summary dismissal of a habeas petition ‘if it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district
court….’”) (citations omitted).
48

Docket 29 at 6 (citing Rose v. Mitchell, 443 U.S. 545, 557 (1979)).

49

Rose, 443 U.S. at 556.

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CONCLUSION
In light of the foregoing, Respondent’s Motion to Dismiss at Docket 32 is
GRANTED, and the Motion for Summary Judgment is moot. Accordingly, Mr. Torrence’s
petition for habeas corpus at Docket 1 and amended petition at Docket 29 are each
DISMISSED.
The Court further finds that Mr. Torrence has not “made a substantial showing of
the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), and therefore a
certificate of appealability will not be issued by this Court. 50 Mr. Torrence may request a
certificate of appealability from the Ninth Circuit Court of Appeals. 51
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 11th day of September, 2017.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

50

See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of appealability may be
granted only if the applicant has made “a substantial showing of the denial of a constitutional
right,” i.e., a showing 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.” (internal quotation marks and citations omitted)).
51

Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.

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