Welton v. Gilligan
Filing
49
ORDER RE MOTION TO DISMISS: Respondents Motion to Dismiss at Docket 29 is GRANTED. The Clerk of Court is directed to enter a final judgment accordingly. The Court further finds that Ms. Welton has not made the requisite substantial show ing of the denial of a constitutional right, and therefore a certificate of appealability will not be issued by this Court. Ms. Welton may request a certificate of appealability from the Ninth Circuit Court of Appeals. Signed by Judge Sharon L. Gleason on 12/07/2018. (CME, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SUZETTE WELTON,
Petitioner,
v.
MIKE GILLIGAN,
Case No. 3:15-cv-00149-SLG
Respondent.
ORDER RE MOTION TO DISMISS
Before the Court at Docket 29 is Respondent Mike Gilligan’s motion to dismiss Ms.
Welton’s First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254(d) (“Petition”). Ms. Welton opposed at Docket 32, and Respondent replied at
Docket 33. Oral argument was not requested and was not necessary for the Court’s
determination.
BACKGROUND
On May 31, 2002, an Alaska state jury found Ms. Welton guilty of first-degree
murder, second-degree murder, first-degree attempted murder, and first-degree arson. 1
On direct appeal, the Alaska Court of Appeals affirmed Ms. Welton’s conviction. 2
Pursuant to Criminal Rule 35.1, Ms. Welton filed an Application for Post Conviction Relief
1
See Docket 29-8 (Exhibit A) (Trial Transcript) at 48, 68.
2
See Docket 29-9 (Exhibit B) (Court of Appeals Judgment Affirming Conviction).
From Conviction or Sentence (“First PCR Application”) in the state court. 3 Among other
assertions, Ms. Welton maintained that she “was not afforded effective assistance of
counsel at trial or on direct appeal.” 4 She based this assertion on her trial counsel’s failure
to impeach her son, Jeremiah, regarding his prior admission that he had taken sleeping
pills. 5 On May 27, 2008, the Superior Court denied Ms. Welton’s First PCR Application. 6
The Court of Appeals affirmed on May 25, 2011, 7 and on July 27, 2011, the Alaska
Supreme Court denied Ms. Welton’s petition for hearing. 8
While still litigating her First PCR Application, Ms. Welton filed a Second PCR
Application on February 17, 2010, 9 which she amended dated April 16, 2013. 10 The
issues raised in her second petition do not relate to the current question before this Court.
On March 3, 2014, the Superior Court granted the state’s motion to dismiss Ms. Welton’s
Second PCR Application. 11 Ms. Welton appealed that decision to the Court of Appeals, 12
3
See Docket 29-10 (Exhibit C), (Application for Post Conviction Relief From Conviction or
Sentence).
4
Docket 29-10 (Exhibit C) at 4.
5
Docket 29-11 (Exhibit D) (Supplemental Affidavit of Michael R. Smith) at 16.
6
See Docket 29-13 (Exhibit F) (Superior Court Ruling on First PCR Application) at 32.
7
See Docket 29-14 (Exhibit G) (Court of Appeals Ruling on First PCR Application) at 1, 11.
8
See Docket 29-20 (Exhibit M) (Supreme Court Order).
9
See generally Docket 29-21 (Exhibit N).
10
See generally Docket 29-22 (Exhibit O).
11
See generally Docket 29-23 (Exhibit P).
12
See generally Docket 29-24 (Exhibit Q).
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which affirmed the Superior Court’s ruling on December 6, 2017. 13 The Alaska Appellate
Courts website indicates that Ms. Welton filed a petition for hearing with the Alaska
Supreme Court on January 8, 2018, 14 which the Supreme Court denied on April 4, 2018. 15
While still litigating her Second PCR Application, Ms. Welton filed her first § 2254
petition in the District of Alaska on June 26, 2012, 16 which she amended on April 22,
2013. 17 The amended petition alleged, among other claims, ineffective assistance of trial
counsel for failing to cross examine Jeremiah regarding his use of sleeping pills. Ms.
Welton acknowledged that her other three claims had not been exhausted in the state
court. As to the sleeping pills claim, the Court held that Ms. Welton had not fairly
presented a federal claim on that issue to the Alaska Supreme Court, and hence it too
was not properly exhausted. Accordingly, the District Court granted the State’s motion to
dismiss all four claims for failure to exhaust and, on January 27, 2014, dismissed the
petition. 18
Ms. Welton then filed an application with the Alaska Court of Appeals, dated
November 18, 2014, pursuant to Alaska Rule of Appellate Procedure 404 in which she
attempted to include a federal claim challenging trial counsel’s failure to impeach
13
See generally Welton v. State, No. A-12010, 2017 WL 6209589 (Alaska App. Dec. 6, 2017).
14
See Case No. S16949, Alaska Appellate Cts. Case Management System,
http://www.appellate.courts.state.ak.us/main.asp.
15
See “Opening Pleadings,” Case No. S16949, Alaska Appellate Cts. Case Management
System, http://www.appellate.courts.state.ak.us/main.asp.
16
See generally Welton v. Marshall, 3:12-cv-00137-TMB (Docket 1).
17
See generally Welton v. Marshall, 3:12-cv-00137-TMB (Docket 22).
18
See generally Welton v. Marshall, 3:12-cv-00137-TMB (Dockets 36–38).
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Jeremiah with his admission about sleeping pill use. 19 The Clerk of the Appellate Courts
refused to file the application, stating that Rule 404 “is not a vehicle to allow an untimely
appeal.” 20 A single judge of the Court of Appeals affirmed the Clerk’s decision on January
9, 2015, 21 as did a Court of Appeals panel on February 6, 2015. 22 The Supreme Court
of Alaska denied Ms. Welton’s petition for hearing on July 9, 2015. 23
On August 25, 2015, Ms. Welton filed with this Court a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254. 24 Ms. Welton amended her petition at Docket 27 to bring
three claims, including an ineffective assistance of counsel (“IAC”) claim based on the
failure to cross-examine Jeremiah regarding his use of sleeping aids (“Claim One”). 25
She later abandoned Claim Three. 26 As to Claim Two, the parties agreed that it had not
been properly exhausted.
This Court adopted the Magistrate Judge’s report that
recommended dismissal of that claim for failure to exhaust. 27 In its analysis, the Court
found that good cause for the failure to exhaust had not been established, because on
19
See Docket 29-28 (Exhibit U) at 7–18.
20
See Docket 29-29 (Exhibit V).
21
See generally Docket 29-30 (Exhibit W).
22
See generally Docket 29-31 (Exhibit X).
23
See Docket 29-33 (Exhibit Z).
24
See generally Docket 1.
25
See Docket 27 at 20, 29.
26
See Docket 32 at 2.
27
See Docket 37 (Order re Pending Motions) at 2, 7; Docket 34 (Final Report and
Recommendation) at 21.
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the merits, Ms. Welton’s claim that her first PCR counsel was ineffective was without
merit. 28 The Court adopted the Magistrate Judge’s ruling that “[i]t would be premature to
find that Welton’s first claim has been procedurally defaulted, under the total exhaustion
doctrine,” because her petition was mixed at that time. 29 Ms. Welton did not notify the
Court whether she opted to delete the unexhausted claim, and the Court therefore
dismissed the case on November 1, 2017. 30 Ms. Welton filed a notice of appeal. 31
However, Ms. Welton’s motion for voluntary dismissal of the appeal was later granted,
and the matter was remanded to this Court to proceed on Claim One. 32 Respondent now
maintains that the remaining first claim is procedurally defaulted.
LEGAL STANDARD
I. Procedural Default
The U.S. Supreme Court has long declined to “review a question of federal law
decided by a state court if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the judgment.” 33 In the
district court, “[t]he [independent and adequate state ground] doctrine applies to bar
28
See Docket 37 at 3, 7; Docket 34 at 24.
29
See Docket 37 at 2, 7; Docket 34 at 20.
30
See Docket 42 (Order of Dismissal); see also Docket 43 (Judgment).
31
See Docket 40 (Notice of Appeal).
32
See Docket 45 (Ninth Circuit Mandate).
33
Coleman v. Thompson, 501 U.S. 722, 729 (1991), overruled in part on other grounds
by Martinez v. Ryan, 566 U.S. 1 (2012).
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federal habeas when a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural requirement.”34
“For a state procedural rule to be ‘independent,’ the state law ground for decision
must not be ‘interwoven with the federal law.’” 35 “A state law ground is so interwoven if
‘the state has made application of the procedural bar depend on an antecedent ruling on
federal law [such as] the determination of whether federal constitutional error has been
committed.’” 36 “To qualify as an ‘adequate’ procedural ground, a state rule must be ‘firmly
established and regularly followed’.” 37 “A rule can be firmly established and regularly
followed . . . even if the appropriate exercise of discretion may permit consideration of a
federal claim in some cases but not others.” 38
II. Excuse of Procedural Default
A. Cause and Prejudice
“[A]n adequate and independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the
default and ‘prejudice attributable thereto,’ or demonstrate that failure to consider the
34
Id. at 729–30.
35
Nitschke v. Belleque, 680 F.3d 1105, 1109 (9th Cir. 2012) (quoting Michigan v. Long, 463 U.S.
1032, 1040–41 (1983)); see also Harris v. Reed, 489 U.S. 255, 261–65 (1989) (applying Long to
federal habeas cases).
36
Nitschke, 680 F.3d at 1109 (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
37
Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)).
38
Walker, 562 U.S. at 316, 316–21 (internal quotation marks omitted) (quoting Beard, 558 U.S.
at 60–61) (holding that a California rule directing habeas petitioners “to file known claims ‘as
promptly as the circumstances allow[]’” was adequate despite its giving California courts
discretion in determining an appropriate timeframe to file known claims).
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federal claim will result in a ‘fundamental miscarriage of justice.’” 39 “To demonstrate
cause, the petitioner must show the existence of ‘some objective factor external to the
defense [which] impeded counsel’s efforts to comply with the State’s procedural rule.’”40
The U.S. Supreme Court in Martinez v. Ryan, concerned about instances in which “the
initial-review collateral proceeding [is] a prisoner’s one and only appeal as to an
ineffective-assistance claim,” established a narrow exception: “Inadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.”41 In Alaska, the initialreview collateral proceeding is not “a prisoner’s one and only appeal as to an ineffective
assistance claim”; the Alaska Court of Appeals held in Grinols v. State that “a defendant
may be entitled to relief if they can later prove that their [first] post-conviction relief
attorney's performance was not competent, and they must be allowed an opportunity to
present this claim in a second petition for post-conviction relief.” 42
B. Miscarriage of Justice
“[I]n an extraordinary case, where a constitutional violation has probably resulted
in the conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.”43 “The
39
Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
40
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (quoting Murray, 477 U.S. at
488).
41
Martinez, 566 U.S. at 8–9 (internal quotation marks omitted).
42
Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000), aff’d, 74 P.3d 889 (Alaska 2003).
43
Murray, 477 U.S. at 496.
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miscarriage of justice exception to cause serves as an additional safeguard against
compelling an innocent man to suffer an unconstitutional loss of liberty, guaranteeing that
the ends of justice will be served in full.” 44 “In order for [a petitioner] to overcome the
procedural bar by means of the miscarriage of justice exception, he must supplement his
claim with a ‘colorable showing of factual innocence;’” 45 in other words, “it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.” 46
DISCUSSION
I. Procedural Default
Respondent first asserts that Claim One is procedurally defaulted. Respondent
maintains that, in Ms. Welton’s first § 2254 proceeding, “this court held that the claim was
procedurally defaulted because, although [Ms.] Welton raised the claim in her first state
post-conviction action, she did not present the federal nature of the claim in her petition
to the state supreme court.” 47 This assertion is not entirely correct. In Ms. Welton’s first
§ 2254 proceeding, this Court held that the claim had not been fully exhausted in the state
court, but it did not reach the procedural default question. 48
44
McCleskey v. Zant, 499 U.S. 467, 495 (1991) (internal citations and quotation marks omitted).
45
Thomas v. Goldsmith, 979 F.2d 746, 749 (9th Cir. 1992) (quoting McCleskey, 499 U.S. at
495).
46
Schlup v. Delo, 513 U.S. 298, 327 (1995).
47
Docket 29 at 11 (citing Welton v. Marshall, 3:12-cv-00137-TMB (Docket 36 at 11–16).
48
See Welton v. Marshall, 3:12-cv-00137-TMB (Docket 36 at 9–17; Docket 37); see also
Woodford v. Ngo, 548 U.S. 81, 92–93 (2006) (citations and quotation marks omitted) (“In
habeas, the sanction for failing to exhaust properly (preclusion of review in federal court) is
given the separate name of procedural default, although the habeas doctrines of exhaustion and
procedural default are similar in purpose and design and implicate similar concerns. In habeas,
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At the time of the first § 2254 proceeding, Ms. Welton had not yet filed her Rule
404 Application in the state court. Ms. Welton maintains that she has now exhausted “the
federal merits of this claim” by presenting her “Rule 404 Applications . . . in the Alaska
Court of Appeals and the Alaska Supreme Court. Those courts have freestanding power
to dispense with the Rules prohibiting otherwise untimely petitions for rehearing when
failure to do so would result in manifest injustice.”49
She claims that Rule 404’s
“discretionary nature” precludes it from being “‘independent’ and ‘adequate’ to bar federal
relief.”50 Respondent replies that “Rule 404 was not the proper vehicle to challenge the
court of appeals’ earlier ruling.” 51
Ms. Welton does not appear to challenge the independence of Rule 404. Although
Rule 404 “is a close cousin of the federal ‘All Writs Act’,” the Rule does not rely on a
federal right for its application. 52 Therefore, it is independent. Ms. Welton does challenge
Rule 404’s adequacy. She notes that Rule 404 would permit the state appellate courts
to reach the merits when “necessary to correct obvious errors.” 53 However, the U.S.
state-court remedies are described as having been exhausted when they are no longer
available, regardless of the reason for their unavailability. Thus, if state-court remedies are no
longer available because the prisoner failed to comply with the deadline for seeking state-court
review or for taking an appeal, those remedies are technically exhausted, but exhaustion in this
sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal
court. Instead, if the petitioner procedurally defaulted those claims, the prisoner generally is
barred from asserting those claims in a federal habeas proceeding.”).
49
Docket 32 at 2.
50
Docket 32 at 3 (citing Lee v. Kemna, 534 U.S. 362, 378 (2002)).
51
Docket 33 at 3.
52
Lambert v. State, 45 P.3d 1214, 1217, 1216–18 (Alaska App. 2002); see also Alaska R. App.
P. 404.
53
See Docket 32 at 2, 2–3 (citing Cameron v. Beard, 864 P.2d 538, 552 (Alaska 1993)
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Supreme Court has held that “a state procedural bar may count as an adequate and
independent ground for denying a federal habeas petition even if the state court had
discretion to reach the merits despite the default.” 54 The Court added: “Discretion enables
a court to home in on case-specific considerations and to avoid the harsh results that
sometimes attend consistent application of an unyielding rule.” 55 Discretion renders a
state ground inadequate “when discretion has been exercised to impose novel and
unforeseeable requirements without fair or substantial support in prior state law[.]”56
Here, the Alaska Court of Appeals refused to consider the merits of Ms. Welton’s 404
Application, finding it was not the appropriate procedural device for her claim. 57 Ms.
Welton makes no showing that the Alaska Court of Appeals’ refusal to allow her to cure
her procedural default through Rule 404 imposed “novel and unforeseeable”
requirements on her. Moreover, as Respondent points out, “other avenues of relief were
available to [Ms.] Welton: she could have raised the issue in a petition for rehearing or a
post-conviction relief application.” 58 Based on the foregoing, Ms. Welton’s federal IAC
(Compton, J., dissenting) (explaining court allowed untimely petition for rehearing following
claims of inconsistent testimony by witness); Carpentino v. State, 42 P.3d 1137, 1142–43
(Alaska App. 2002) (declining to decide, as to state’s attempt to make new evidentiary argument
in petition for rehearing, whether to relax rule that new arguments cannot be raised in petition
for rehearing because state’s evidentiary arguments lacked merit)).
54
Walker v. Martin, 562 U.S. 307, 311 (2011).
55
Id. at 320.
56
Id. (citation and quotation marks omitted).
57
See generally Docket 29-30 (Exhibit W); Docket 29-31 (Exhibit X).
58
Docket 33 at 3.
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claim regarding trial counsel’s cross examination of Jeremiah’s use of sleeping pills is
procedurally defaulted.
II. Excuse of Procedural Default
A. Whether Martinez Applies
Respondent argues that “Martinez does not apply in Alaska because Alaska has
a vehicle under state law for challenging the ineffectiveness of post-conviction counsel.” 59
“Not only does Alaska appoint counsel in post-conviction actions, it also protects the right
to effective assistance of counsel in such actions,” as recognized by the Alaska Court of
Appeals in Grinols v. State. 60 “[A] defendant may file a successive application for postconviction relief asserting that his post-conviction attorney’s performance in the earlier
action was incompetent. Counsel is usually appointed in such cases.” 61 This protection,
Respondent asserts, “negates the Supreme Court’s concern in Martinez; there is no need
for the federal court to excuse the procedural default because in Alaska there is a vehicle
for raising the issue in state court.”62
Ms. Welton responds by citing to Trevino v. Thaler, in which the U.S. Supreme
Court held that Martinez applied where state requirements made it possible but “highly
unlikely” for a petitioner to raise an IAC claim on direct appeal. 63 Ms. Welton maintains
59
Docket 29 at 17.
60
Docket 29 at 17 (citing Grinols v. State, 10 P.3d 600 (Alaska App. 2000), aff’d, 74 P.3d 889
(Alaska 2003)).
61
Docket 29 at 17–18 (citing Grinols, 10 P.3d at 618–20).
62
Docket 29 at 18.
63
See Trevino v. Thaler, 569 U.S. 413, 429 (2013).
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that Alaska “is not exempt from the Martinez rule simply because there is a possibility that
a defendant can present a trial-counsel IAC claim outside of the post-conviction relief
process. . . . [I]t is ‘highly unlikely’ that a trial counsel IAC claim can be adjudicated in
Alaska outside of the initial-review PCR process.” 64 Ms. Welton further argues that the
“availability of review” in Alaska “is not a substitute for federal habeas review” because
Alaska requires a “more demanding” showing “to present a procedurally defaulted IAC
claim” than Martinez requires “to excuse a procedurally defaulted IAC claim[.]”65
Respondent replies, “the question is whether a Grinols claim offers a meaningful
opportunity for a state prisoner to challenge the ineffectiveness of his post-conviction
attorney, thereby opening the door to a renewed claim of trial-counsel ineffectiveness if
successful. It clearly does.” 66 Further, Respondent maintains, “[a] procedural default is
excused under Martinez because, without federal review, there would be no meaningful
opportunity for review of the claim”[;] the same is not true in Alaska. 67
Aside from her citation to Trevino, Ms. Welton has not shown that “it is ‘highly
unlikely’ that a trial counsel IAC claim could be adjudicated in Alaska outside of the initialreview PCR process.” 68 The Texas procedural rules at issue in Trevino made it so difficult
to raise an IAC claim on direct appeal that “Texas’ highest criminal court has explicitly
64
Docket 32 at 11 (citing Trevino, 569 U.S. at 429).
65
Docket 32 at 11 (internal citation omitted).
66
Docket 33 at 14.
67
Docket 33 at 14 (citation omitted).
68
Docket 32 at 11 (citing Trevino, 569 U.S. at 429).
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stated that ‘[a]s a general rule’ the defendant ‘should not raise an issue of ineffective
assistance of counsel on direct appeal,’ but rather in collateral review proceedings.” 69 Ms.
Welton fails to explain how Texas’s procedural hurdles would apply in Alaska. Without
more, Ms. Welton’s assertion fails.
Ms. Welton also maintains that “[t]he showing necessary to present a procedurally
defaulted IAC claim under [Grinols] is more demanding – both in terms of the quantum of
evidence needed and the legal standard that is applied – than the showing necessary to
excuse a procedurally [defaulted IAC] claim under [Martinez].” 70 That may be true. But
nowhere in Martinez does the Court suggest that a state’s requirements to renew an IAC
claim must match the federal requirements. The Martinez Court’s concern was with
instances in which “the initial-review collateral proceeding [is] a prisoner’s one and only
appeal as to an ineffective-assistance claim . . . .”71 Grinols eliminates that concern by
allowing a second PCR application challenging the effectiveness of the first PCR attorney
as a vehicle renew to a challenge to the effectiveness of the trial attorney, particularly
because, as Respondent represents to the Court, “[a]ppointment of counsel is
discretionary but rarely denied in such cases.” 72 Therefore, the Court finds that Martinez
69
Trevino, 569 U.S. at 426 (emphasis in original) (quoting Mata v. State, 226 S.W.3d 425, 430
n. 14 (Tex. Crim. App. 2007)).
70
Docket 32 at 11.
71
Martinez, 566 U.S. at 8 (internal quotation marks omitted).
72
Docket 33 at 13.
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does not apply in Alaska. Ms. Welton has failed to establish cause to excuse her
procedural default.
B. Miscarriage of Justice Exception
Neither party briefed this issue. Claim One makes no assertion regarding Ms.
Welton’s innocence. Based on the foregoing, the Court will find no miscarriage of justice
as to Claim One.
CONCLUSION
In light of the foregoing, Respondent’s Motion to Dismiss at Docket 29 is
GRANTED. The Clerk of Court is directed to enter a final judgment accordingly. The
Court further finds that Ms. Welton has not made the requisite substantial showing of the
denial of a constitutional right, and therefore a certificate of appealability will not be issued
by this Court. 73 Ms. Welton may request a certificate of appealability from the Ninth Circuit
Court of Appeals.
DATED this 7th day of December, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
73
See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be granted
only if applicant made “substantial showing of the denial of a constitutional right,” i.e., 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 quotations and citations omitted)).
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