Olson v. McCloud

Filing 25

ORDER denying Petition under 28:2254. Motions at dockets 11 , 12 , and 13 are denied as moot, dockets 14 and 19 are denied, docket 21 is granted, and docket 22 is denied. Signed by Judge James K. Singleton, Jr on 5/14/18. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

GLENN OLSON,
Petitioner,

No. 3:17-cv-00111-JKS

vs.
MEMORANDUM DECISION
EARL HOUSER, Superintendent, Goose
Creek Correctional Center,1
Respondent.

Glenn Olson, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. Olson is in the custody of the Alaska
Department of Corrections and incarcerated at Goose Creek Correctional Center. Respondent
has answered, and Olson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On April 4, 2008, Olson was charged with second-degree sexual assault and fourthdegree assault. Following his arraignment, Olson was appointed counsel and pleaded not guilty.
He subsequently moved pre-trial to represent himself. After numerous hearings, the trial court
ruled that Olson could represent himself and would be permitted to have appointed counsel serve

1

Earl Houser, Superintendent, Goose Creek Correctional Center, is substituted for
Shannon McCloud, Superintendent, Wildwood Correctional Center. FED. R. CIV. P. 25(c).
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as advisory counsel. On direct appeal of his conviction, the Alaska Court of Appeals laid out the
following facts underlying the charges against Olson and the procedural background of his case:
Factual and procedural background
Benjamin Samuels, Peter Togiak, and M.B. went to a residence on the evening of
March 28, 2008, after consuming a significant amount of alcohol. Glenn Olsen[2] arrived
at the residence later that night. He had also been drinking alcohol. During the evening,
Olsen told Togiak and Samuels to leave. Olsen and Togiak got into an altercation, and
Olsen allegedly punched Togiak. Togiak and Samuels went to a neighbor's house to call
the police.
Officers Tracy O'Malley and Michael Barnett and Police Chief Richard
Thompson responded to a report of a fight at the residence around 6 p.m. According to
the officers, everyone at the house appeared intoxicated, and people were screaming and
yelling. M.B. was sitting on the floor, highly intoxicated and unable to talk. Olsen acted
belligerently toward the officers. Because no one wanted to file a complaint, the officers
left.
Following this first police visit, Olsen again told Togiak and Samuels to leave.
Samuels testified that Olsen told him and Togiak that it was his house and that Olsen
punched, grabbed, and kicked Togiak.
Samuels testified that he saw Olsen grab M.B. by the hair and pull her to the
bedroom. Samuels testified that M.B. tried to tell Olsen not to grab her hair and that he
believed that M.B. did not want to go to the bedroom. Togiak testified that he saw Olsen
hold M.B. by her hair and rape her in the bedroom. Togiak stated that he and Samuels
tried to intercede on M.B.’s behalf, but Olsen fought them. Samuels and Togiak then
returned to the neighbor’s house and called the police.
The police officers returned to the residence around 6:30 p.m. after receiving the
report of a second assault. The officers found Samuels and Togiak outside. Samuels told
the officers that he had seen Olsen threaten Togiak with a knife. Togiak completed a
citizen’s arrest form. The officers heard yelling from inside the residence. Based on the
report of the knife, the yelling inside the residence, and the knowledge that M.B. was
intoxicated and likely inside the residence, the officers went inside. In a bedroom, the
officers found M.B. face down on a mattress with Olsen on top of her. Both M.B. and
Olsen were dressed, but their pants and underwear were pulled down, and Olsen was
wearing a condom. The officers either picked up Olsen or told Olsen to get off of M.B.
M.B. continued to lie on the bed and was not able to coherently converse with the
officers.
....
Prior to trial, Olsen filed a motion to suppress all of the evidence the police
observed inside the house. Olsen claimed that the police illegally entered the residence
where he and M.B. were having sex because they entered without permission and no
exigent circumstances justified the police entry. Olsen argued that all of the evidence
that the police obtained from the illegal entry should be suppressed.
Superior Court Judge Fred Torrisi conducted an evidentiary hearing on the
motion to suppress. Dillingham Police Officer Michael Barnett and Police Chief Richard
2

The Court of Appeals’ opinion uses the spelling “Olsen” because Olson used that
spelling of his name when he litigated the appeal. In this federal proceeding, and in subsequent
appeals before the state court, he spells his name “Glenn Olson.” See Olson v. State, 383 P.3d
661, 661-62 (Alaska Ct. App. 2016).
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Thompson testified at the evidentiary hearing. Officer Barnett testified that when the
officers responded to the second report of an assault at the residence, Togiak told the
officers that Olsen had kicked him in the ribs, pointed a knife at Togiak, and told Togiak
to get out of the house. Samuels also told Barnett that Olsen had a knife. Barnett also
testified that while he was talking with Togiak and Samuels, he could hear a male and a
female yelling in the residence. He concluded that it was likely that M.B. was in danger.
Barnett testified that these facts made it necessary to enter the residence. Chief
Thompson testified that he concluded it was necessary to enter the house because he did
not see M.B. outside, he believed that M.B. was highly intoxicated, he had heard Togiak
say that Olsen had used a knife in an assault, and he heard yelling coming from the
house. He also concluded that M.B. was in danger.
Following the presentation of the evidence, Judge Torrisi found the police
officers’ testimony credible. He concluded that the officers reached a reasonable
conclusion that M.B. was in danger and that exigent circumstances justified the police
entry.
Olsen v. State, No. A-10782, 2013 WL 596524, at *1-2 (Alaska Ct. App. Feb. 13, 2013).
Olson proceeded to a jury trial with advisory counsel. After conducting voir dire pro se,
Olson indicated that he no longer wished to represent himself and requested that his advisory
counsel take over the case. The trial court granted the request, and Olson’s attorney handled the
case from opening arguments through the verdict.
During trial, M.B. testified that she could not remember the events of that night due to
her intoxication and had no memory of the alleged sexual assault, but the State relied on the
testimony of other witnesses, as described in the Court of Appeals’ factual summary above, to
argue that a sexual assault had occurred. Olson testified that M.B. initiated sex and that he
believed that she consented to the sexual activity. He also sought to admit the testimony of Jack
Allen, a cab driver in Dillingham, who would testify that, when M.B. was intoxicated, she had
acted in a flirtatious and seductive manner toward Allen when he had given her a ride in his cab.
The trial court concluded that the proposed testimony was not admissible.
At the conclusion of trial, the jury convicted Olson as charged. Following the conviction,
Olson moved for a new trial, claiming that his attorney had exhibited racial bias against him and
had threatened him in an attempt to coerce him into entering a guilty plea. The superior court
found that Olson’s claims were not credible and denied the motions.
Olson then sought to represent himself at sentencing. Following a hearing, the trial court

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permitted Olson to present any written or oral legal and factual arguments to the court during
sentencing proceedings, and also permitted Olson’s attorney to make any arguments. The trial
court sentenced Olson to 25 years’ imprisonment with 5 years suspended and 15 years’ probation
on the second-degree sexual assault charge, and a consecutive term of 1 year imprisonment with
180 days suspended and a 5-year probationary period on the fourth-degree assault charge. The
trial court also ordered that Olson have no contact with Togiak during the 5-year period of
probation imposed on the fourth-degree assault charge and that Olson register as a sex offender
for a period of 15 years after his unconditional discharge for the sexual assault charge as well as
during his period of probation. After sentencing, Olson filed a motion for a hearing so that he
could obtain bail on appeal. The State opposed the motion, arguing among other things that
Olson was ineligible for bail pending appeal under ALASKA STAT. § 12.30.040(b)(2) because he
had been convicted of a sexual felony.3 The superior court denied the motion “for the reasons
put forth by the state.”
Pursuant to Olson’s request for self-representation, the trial court allowed Olson to
represent himself on appeal. Olson filed a pro se brief arguing that: 1) the trial court erred by
denying his motion to suppress; 2) the trial court erred by “not granting in propria persona before
trial and after;” 3) the trial court abused its discretion by refusing to admit character evidence of
the victim; 4) the superior court did not have jurisdiction over Olson; 5) he received the
ineffective assistance of counsel; and 6) the trial court abused its discretion in denying his
motion for bail pending appeal. The Court of Appeals unanimously affirmed Olson’s
convictions in a reasoned, unpublished opinion issued on February 13, 2013. Olsen, 2013 WL
596524, at *5. It nonetheless remanded Olson’s case for the trial court to revisit the bail pending

3

That statute currently provides that a person may not be released if he or she has
been convicted of a sexual felony. ALASKA STAT. § 12.30.040(b)(2). As the Court of Appeal
explained on direct appeal, “[t]his language was added to the statute by ch. 19, § 11, SLA 2010,
and did not become effective until July 1, 2010—after Olsen filed his petition for a bail hearing.”
Olsen, 2013 WL 596524, at *5.
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appeal issue and the ineffective assistance of counsel claim. Id. The appellate court concluded
that the record was insufficient for the trial court to deny the ineffective assistance claim without
holding an evidentiary hearing and that the trial court erred in denying the bail pending appeal
issue by relying on amendments to the bail statute that did not become effective until after Olson
had filed his petition for a bail hearing. Id.
On remand, the superior court held an evidentiary hearing at which Olson testified in
support of his allegations. Olson’s attorney testified that she did not use racial slurs or exhibit
bias against Olson. She also testified that she made no threats to Olson and that she was
prepared for his trial. She further testified that, whenever possible, she had another attorney or
witness present when communicating with Olson. The superior court found the attorney’s
testimony credible, concluding that the attorney’s performance at trial corroborated her
testimony that she was prepared for trial and that Olson’s demeanor in court was consistent with
the attorney’s assertion that communicating with Olson was “challenging.” The superior court
affirmed its denial of Olson’s motion for a new trial. Olson appealed that decision pro se, and
the Court of Appeals unanimously affirmed in a reasoned, unpublished opinion. Olsen v. State,
No. A-11941, 2014 WL 4536295, at *2 (Alaska Ct. App. Sept. 10, 2014). Olson filed a pro se
petition for review in the Alaska Supreme Court, raising his claims that the Court of Appeals
erred by: 1) not ruling on the merits of his claim that he was subject to an unlawful arrest;
2) concluding that the superior court acted appropriately in permitting Olson to represent
himself; and 3) determining that the superior court was within its discretion in not allowing the
proposed testimony of Allen. The Supreme Court summarily denied the petition on September
13, 2013.
While that appeal was still pending, Olson filed a pro se petition for post-conviction
relief on the ground that much of the evidence against him was the fruit of an allegedly unlawful
arrest. The superior court dismissed the petition as barred by the provisions of ALASKA STAT.

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§ 12.72.020(a).4 Olson also filed in the superior court a pro se petition for habeas relief which
again attacked the convictions on the same ground. The superior court ruled that the habeas
corpus action was likewise barred by law. Olson appealed the denial of his habeas petition to the
Court of Appeals. Olson v. State, 383 P.3d 661, 662 (Alaska Ct. App. 2016). Although he
acknowledged that his motion for post-conviction relief was barred and that a criminal defendant
is generally not entitled to pursue habeas corpus litigation where a petition for post-conviction
relief would be barred, he argued that he was nonetheless entitled to pursue habeas relief because
the judgment against him is void. Id. at 663. The Court of Appeals rejected Olson’s argument
that a criminal conviction is void if the prosecution’s case was based on evidence obtained in
violation of the Fourth Amendment and that, as already decided on direct appeal, the officers’
warrantless entry into the residence was lawful under the emergency aid doctrine and thus no
Fourth Amendment violation had been shown in any event. Id. at 663-64. Olson filed a petition
for hearing to the Alaska Supreme Court on the grounds that he was subject to an unlawful arrest
and that the lower courts had erred by not permitting him to litigate his claim in a state habeas
proceeding. The Supreme Court denied the petition without comment on February 15, 2017.
Olson then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
May 11, 2017. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A).
II. GROUNDS/CLAIMS
In his pro se Petition before this Court, Olson argues that: 1) his due process rights were
violated because he was subject to an unlawful arrest, and the state courts did not rule on his
“Illegal Warrantless Misdemeanor Arrest Issue;” 2) the trial court both denied him of his
constitutional right to self-representation and erred in granting him pro se status; 3) his rights to
confrontation and to present a defense were violated when the trial court refused to allow him to

4

That provision provides that post-conviction relief is not available under ALASKA
STAT. § 12.72.010 for certain claims, including those based on the admission or exclusion of
evidence at trial and claims that were, or could have been but were not, raised on direct appeal of
the conviction. ALASKA STAT. § 12.72.010(a)(1), (2).
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present character evidence of the victim; 4) counsel displayed racial bias against him and was
ineffective for trying to coerce him into taking a plea deal; and 5) he was convicted based on
unlawfully-obtained evidence.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,

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67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
A.

Illegal Arrest (Claims 1, 5)
Olson first challenges the trial court’s denial of his suppression motion based on an

alleged illegal arrest. In Ground 1, Olson avers that his due process rights were violated because
the “lower courts did not rule on the Illegal Warrantless Misdemeanor Arrest Issue.” He
similarly argues in Ground 5 that his conviction was obtained by the use of evidence wrongfully
obtained through an illegal warrantless misdemeanor arrest.
As Olson acknowledges, any challenge to the denial of his suppression motion is
precluded by the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 (1976). Under
Stone, “where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim,[5]” federal habeas corpus relief will not lie for a claim that evidence

5

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
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recovered through an illegal search or seizure was introduced at trial. The Stone v. Powell
doctrine applies to all Fourth Amendment claims, including claims of illegal stops, arrests,
searches, or seizures based on less than probable cause, and it applies regardless of the nature of
the evidence sought to be suppressed. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per
curiam).
The Ninth Circuit has made clear that all Stone requires is that the State provide a
petitioner the opportunity to litigate his Fourth Amendment claim. See Moormann v. Schiro, 426
F.3d 1044, 1053 (9th Cir. 2005). “The relevant inquiry is whether petitioner had the opportunity
to litigate his claim, not whether he did in fact do so or even whether the claim was correctly
decided.” Oritz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Alaska provides such an
opportunity, AK. R. CRIM. P. 37(c); ALASKA CONST. art. I, § 14. Indeed, the record reflects that
the state trial court held a hearing at which defense counsel was afforded the opportunity to be
heard, and the underlying claim was briefed before and thoroughly considered by the Alaska
Court of Appeals, which issued a reasoned decision rejecting the claim on its merits.
Olson nonetheless argues that his claim may be considered here because he is not barred
from seeking relief in a civil 42 U.S. § 1983 suit. But whether he may seek remedy in a future
§ 1983 federal suit is not at issue with respect to the instant § 2254 Petition, and only his federal
habeas claims are properly before this Court. Olson is thus not entitled to relief on either Ground
1 or Ground 5.
B.

Self-Representation (Claim 2)
Olson additionally claims that the state courts violated his right to proceed “in propria

persona.” Although his Petition is not entirely clear on this point, Olson appears to make
contradictory arguments that: 1) the trial court erred in denying him self-representation; and 2)
the trial court erred in allowing him to represent himself. The right to counsel guaranteed by the

U.S. CONST. amend. IV.
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Sixth Amendment “has been interpreted to encompass ‘an independent constitutional right’ of
the accused to represent himself at trial, and thus waive the right to counsel.” Stenson v.
Lambert, 504 F.3d 873, 882 (9th Cir. 2007) (quoting Faretta v. California, 422 U.S. 806 (1975)
(holding that the Sixth and Fourteenth Amendments include a “constitutional right to proceed
without counsel” even if self-representation is likely to be harmful to the defendant)). Such
waiver, however, must be “knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 8788 (2004). While no specific colloquy is required, Lopez v. Thompson, 202 F.3d 1110, 1117 (9th
Cir. 2000) (en banc), the Ninth Circuit has “gleaned a three-factor test from Faretta, under which
in order to deem a defendant’s Faretta waiver knowing and intelligent, the district court must
insure that he understands 1) the nature of the charges against him, 2) the possible penalties, and
3) the dangers and disadvantages of self-representation,” United States v. Forrester, 512 F.3d
500, 506 (9th Cir. 2008) (citation and internal quotation marks and brackets omitted). “The
preferred procedure to ensure that a waiver is knowingly and intelligently made is for the district
court to discuss each of the three elements with the defendant in open court,” although a trial
court’s failure to do so “will not necessitate automatic reversal when the record as a whole
reveals a knowing and intelligent waiver.” United States v. Balough, 820 F.2d 1485, 1488 (9th
Cir. 1987).
Here, the record reflects that, following his indictment and subsequent arraignment,
Olson was appointed counsel and pleaded not guilty. During a trial call status hearing, Olson
stated that he was “confused” about his rights and the case and questioned the court’s criminal
jurisdiction. Through his attorney, he filed a motion for a representation hearing.
At another trial call a week later, Olson’s attorney informed the court that Olson wished
to represent himself. When questioned by the court, Olson again alleged that the court lacked
jurisdiction, and the court indicated that, based on the jurisdiction discussion, it was unsure that
Olson was capable of representing himself. The court nonetheless provided Olson with a written
advisement regarding his right to waive counsel and the dangers of self-representation, and made

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extensive oral remarks, including the following:
The defendant has the right to represent himself. The decision by a defendant,
however, to exercise this right is almost always a bad one. The cases seem to recognize
the right of a defendant to make a bad decision. They permit him to commit judicial
suicide by defending himself. The Court has a duty to make sure the defendant who
wishes to represent himself is fully aware of the dangers of self-representation and the
benefits of having an attorney. Because a decision by a defendant to exercise this right is
usually a bad decision and generally so disruptive to the proper function of the judicial
processes, that the trial court must make sure that a defendant who chooses to represent
himself knows what he’s doing. A trial judge should attempt to discourage the defendant
from representing himself. That’s what I’m doing.
The court then outlined in detail the parts of trial, and explained why, at each part of trial,
a defendant would be disadvantaged by representing himself. After the lengthy explanation, the
court questioned Olson to understand his reasons for requesting self-representation. The court
then suggested that Olson be permitted to act as counsel and file the motions he would like but
have his attorney remain as co-counsel to assist him as needed. Olson agreed to have his
attorney temporarily act as co-counsel, which the court temporarily permitted.
At the next hearing, however, Olson stated that he would like to litigate the case on his
own. The issue was continued until the court heard testimony from Olson’s mother, who
testified that Olson was not competent to represent himself at trial. The court found that Olson
was polite, responsive to court orders, and would not be disruptive, but had legal
misapprehensions that gave the judge concern about Olson’s ability to represent himself. The
court concluded that Olson should not represent himself without the help of counsel, and
appointed advisory counsel to assist him.
Roughly three months later, a different judge took over the case for reasons unrelated to
the instant motion. After reviewing the prior proceedings and order, the court ruled that Olson
could continue to represent him with the assistance of advisory counsel. The court also
explained that Olson had the ability to personally file any motions.
At trial, the court permitted Olson to personally conduct voir dire of the jury. The court
explained that, although Olson was representing himself, he could ask advisory counsel to take
over at any time. Following voir dire, Olson stated that he no longer wanted to represent himself
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and requested that his advisory counsel take over the case. The court granted the request, and
advisory counsel handled the case from opening arguments through the verdict.
On direct appeal, Olson argued that he was denied the opportunity to represent himself.
But as discussed above and as noted by the Court of Appeal, “the record shows that, when he
requested to do so, the court permitted him to represent himself, with advisory counsel.” Olsen,
2013 WL 596524, at *3. The Court of Appeal’s rejection of Olson’s denial-of-selfrepresentation-claim is therefore not contrary to, or an unreasonable application of, Federal law.
In the instant Petition, Olson additionally alleges that the trial court should have granted
him the right to represent himself without the assistance of advisory counsel. But the Supreme
Court has held:
A defendant’s Sixth Amendment rights are not violated when a trial judge
appoints standby counsel—even over the defendant’s objection—to relieve the judge of
the need to explain and enforce basic rules of courtroom protocol or to assist the
defendant in overcoming routine obstacles that stand in the way of the defendant’s
achievement of his own clearly indicated goals. Participation by counsel to steer a
defendant through the basic procedures of trial is permissible even in the unlikely event
that it somewhat undermines the pro se defendant’s appearance of control over his own
defense.
McKaslke v. Wiggins, 465 U.S. 168, 184 (1984).
Moreover, as Olson also concedes, he was not competent to handle the case by himself.
Indeed, he does not challenge the court’s grant of his request to have advisory counsel take over
after voir dire, nor does he allege that he was in any way prejudiced by counsel’s handling of the
majority of his case in his stead.
Olson also contends that the trial court erred in allowing him to represent himself because
the court did not explain the consequences and dangers of self-representation. As described
above, however, any such contention is belied by the record. Olson appears to suggest that,
when the new judge took over, she should have likewise described the dangers of selfrepresentation. However, Olson cites no cases, much less clearly-established authority of the
United States Supreme Court, mandating that the trial court had a duty to reiterate the dangers of
self-representation when there was no change in the ruling allowing Olson to represent himself
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with the assistance of advisory counsel. Olson is therefore not entitled to relief on this ground in
any event.
C.

Character Evidence of Victim (Claim 3)
Olson next challenges the trial court’s refusal to admit the testimony of Jack Allen as

evidence that the victim was flirtatious when intoxicated. The court conducted a hearing to
determine the admissibility of the evidence, at which Allen testified that he had given the victim
rides in the taxi he drove in Dillingham. Allen testified that sometimes when he picked up the
victim she would be sober, but oftentimes she was intoxicated. According to Allen, when she
was sober, she was quiet and polite; when she intoxicated, she would sit with her head resting
against Allen and place her hand on his leg or his knee. She would flirt with him and tell him
that he was handsome or cute. Allen testified that a “couple times” the victim asked him to have
sex with her, which he declined.
On cross-examination, Allen stated that he could not recall if he had given the victim a
ride on the day of the charged assault or whether her flirtation had taken place any time before
that date. He also testified that other women would often flirt with him when he was giving
them rides in his cab. He further conceded that the victim’s purportedly drunk and flirtatious
behavior may have only happened in the three weeks prior to his testimony, which was given
over 15 months after the charged assault occurred.
The court concluded that Allen’s testimony, involving the act of flirting with another
individual on a handful of occasions over 15 months after the charged crimes, did not establish a
relevant character trait of the victim. The court noted that the testimony was not about the
victim’s conduct prior to the assault and that the conduct at issue occurred only in recent weeks.
The court additionally noted that the evidence was not relevant to assessing the victim’s
credibility because the victim did not remember anything and the prosecution’s case was based
upon eyewitness observations, DNA testing, and the sexual assault exam. The court
alternatively concluded that, even if the victim’s actions with Allen had some relevance, the fact

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that they occurred 15 months after the charged assault additionally barred the proffered evidence.
The court thus denied Olson’s motion to admit Allen’s testimony.
It is well settled that, under the Sixth Amendment, an accused has the right to present
witnesses, testimony and other evidence in his defense. See Washington v. Texas, 388 U.S. 14,
19 (1967). However, “[t]he accused does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v.
Illinois, 484 U.S. 400, 409-10 (1988). States have considerable latitude under the Constitution to
establish rules excluding evidence from criminal trials. Holmes v. S. Carolina, 547 U.S. 319,
324 (2006). “Thus, a trial judge may exclude or limit evidence to prevent excessive
consumption of time, undue prejudice, confusion of the issues, or misleading the jury. The trial
judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or
disproportionate.” Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (citations
omitted); see Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (holding due process rights are not
violated by exclusion of relevant evidence where probative value is outweighed by danger of
prejudice or confusion).
Federal Rule of Evidence 403, the federal counterpart to Alaska Evidence Code section
403, permits the exclusion of evidence if its probative value is “substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” “A district court is accorded a wide
discretion in determining the admissibility of evidence under the Federal Rules. Assessing the
probative value of [the proffered evidence], and weighing any factors counseling against
admissibility is a matter first for the district court’s sound judgment under Rules 401 and
403 . . . .” United States v. Abel, 469 U.S. 45, 54 (1984); see Boyd v. City and Cnty. of San
Francisco, 576 F.3d 938, 948 (9th Cir. 2009). Alaska employs a similar rule. See Hawaley v.
State, 614 P.2d 1349, 1361 (Alaska 1980) (“The admissibility of evidence is largely within the
trial court’s discretion and its rulings will not be overturned on appeal in the absence of an abuse

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of discretion.”).
Under these guidelines, this Court cannot find that the trial court’s denial of Olson’s
request was an abuse of discretion or unreasonable or contrary to federal law. As the Court of
Appeal persuasively reasoned in affirming the trial court’s denial:
The rape shield law does not strictly apply to Olsen’s case. But the policy behind
the law does. In this case, M.B.’s alleged conduct with Allen occurred more than one
year after Olsen’s alleged sexual assault. Judge White concluded that M.B.’s alleged
flirtatious behavior with Allen more than a year after Olsen’s alleged assault had little
relevance and that admission of this evidence would be unfairly prejudicial. By contrast,
Olsen was able to introduce evidence of M.B.’s allegedly flirtatious actions on the night
of the assault. Judge White did not abuse her discretion in refusing to admit evidence of
M.B.’s alleged conduct with Allen.
Olson, 2013 WL 596524, at *4.
The Court agrees that the proffered evidence was, at best, minimally relevant and of
limited probative value, and could inappropriately assail the victim’s character. See Perry v.
Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983) (“Evidence of little importance, whether merely
cumulative or of little probative value, will almost never outweigh the state interest in efficient
judicial process.”). Moreover, Olson cannot establish that his rights to confrontation were
violated by the exclusion. See Delaware v. Van Arsdell, 475 U.S. 673, 679 (1986) (“[T]rial
judges retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits . . . based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.”). Olson is thus not entitled to relief on this claim in any event.
D.

Ineffective Assistance of Counsel (Claim 4)
Finally, Olson alleges that he received the ineffective assistance of counsel regarding a

plea offer. The record reflects that, 10 months after the jury’s verdict, Olson moved for a new
trial, alleging that counsel exhibited racial bias against him and threatened him in an attempt to
coerce him to accept a plea deal. As previously noted, the trial court initially denied the motion
on the merits without conducting an evidentiary hearing. On direct appeal, the Court of Appeals
remanded, concluding that the record was insufficient to support the trial court’s conclusion
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about the credibility of Olson’s affidavit without holding an evidentiary hearing. Olson, 2013
WL 596524, at *4.
On remand, the court held an evidentiary hearing at which Olson testified in support of
his allegations. Olson’s attorney also testified that she did not use racial slurs or exhibit bias
against Olson. She further testified that she made no threats to induce Olson to accept the State’s
plea offer and that she was prepared for trial. The superior court found the attorney’s testimony
credible, concluding that the attorney’s performance at trial corroborated her testimony that she
was prepared for trial and that Olson’s demeanor in court was consistent with the attorney’s
assertion that communicating with Olson was “challenging.” The superior court affirmed its
denial of Olson’s motion for a new trial, and the Court of Appeals unanimously affirmed on
direct appeal. Olsen, 2014 WL 4536295, at *2.
The Superior Court conducted an evidentiary hearing and considered all of the evidence
Olson presented before finding his allegations not credible. Olson has not alleged that the
Superior Court’s findings were unsupported by sufficient evidence or that the fact-finding
process employed by the Superior Court was defective, and the record demonstrates the contrary.
Consequently, this Court cannot second-guess either the state court’s findings of fact or its
credibility determination. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (holding that
“Title 28 U.S.C. § 2254(d) gives federal habeas corpus courts no license to redetermine
credibility of witnesses whose demeanor has been observed by the state court, but not by them.”)
Because the state court’s factual findings were not unreasonable in light of the evidence
before it, those findings are entitled to deference. In his Petition, Olson relies upon the same
evidence he presented to the Superior Court during the evidentiary hearing on his motion for a
new trial. See Sophanthavong v. Palmateer, 378 F.3d 859, 867 (9th Cir. 2004) (“The evidence
presented by [petitioner] to the district court is the same proof that the state court found was not
believable. [The petitioner] did not submit any evidence in the district court to rebut the
presumption that the state court’s findings of fact and credibility determinations are correct as

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required by § 2254(e)(1) . . . . [B]ecause the state court conducted an evidentiary hearing . . ., we
are required to defer to the state court’s credibility findings.”). His conclusory allegations in his
Petition fail to overcome the presumption that the state court’s findings are correct. Bragg v.
Galaza, 242 F.3d 1082, 1087 (9th Cir. 2000). Olson’s ineffective assistance claim therefore
must be denied.
E.

Other Pending Motions (Docket Nos. 11, 12, 13, 14, 19, 21, 22)
During the pendency of these proceedings, the parties have filed a number of other

motions that are now currently before the undersigned judge and ripe for adjudication.
At Docket No. 11, Respondent filed an opposition to the Petition styled as a “Motion for
Summary Adjudication.” Because the Court has now decided the Petition in a reasoned opinion,
a summary adjudication is unnecessary, and the motion at Docket No. 11 is denied as moot. At
Docket No. 12, Olson objected to this Court’s granting Respondent an additional extension of
time to file an answer to the Petition. Likewise, at Docket No. 13, Olson moved to enforce the
briefing deadlines set in the case. Because Respondent has answered the Petition and the case
has been decided, the motions at Docket Nos. 12 and 13 are similarly denied as moot. Olson
filed a cross-motion for summary judgment at Docket No. 14 and, at Docket No. 19, moved to
oppose the Respondent’s answer. Because the Court has now adjudicated the Petition and
determined that no relief is warranted, the motions at Docket Nos. 14 and 19 are denied.
Olson moves at Docket No. 21 to introduce documentary evidence from his state court
case. Respondent does not oppose the request. See Docket No. 23. Review of the record
indicates that the document at issue, a petition for rehearing dated February 23, 2013, and filed
in the Alaska Court of Appeals in Case No. A-10782, is not included in the state court
documents lodged by Respondent at Docket No. 10. The Court therefore grants the request and
has considered the document in rendering the decision above.
Finally, Olson moves for bail review. Docket No. 22. According to Olson, he is entitled
to bail because his § 2254 Petition has been pending for over three months. But while federal

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law provides that bail may be allowed even after conviction and pending appeal, it will not be
ordered as a matter of right. McKane v. Durston, 153 U.S. 684 (1894). The Court has now
adjudicated the Petition and determined that habeas relief is not warranted, and the state court
judgment against him is not infirm. The motion for bail review at Docket No. 22 must therefore
be denied. Cf. Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964) (“It would not be
appropriate for us at this stage of the proceeding to enlarge this petitioner on bail even if we
found that the allegations of his petition for habeas corpus made out a clear case for his release.
Something more than that is required before we would be justified in granting bail.”).
V. CONCLUSION AND ORDER
Olson is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT Respondent’s Motion for Summary Adjudication
at Docket No. 11 and Petitioner’s motions at Docket Nos. 12 and 13 are DENIED as moot.
IT IS FURTHER ORDERED THAT Petitioner’s Motion for Summary Judgment at
Docket No. 14 and Motion to Oppose Respondent’s Answer at Docket No. 19 are DENIED.
IT IS FURTHER ORDERED THAT Petitioner’s Unopposed Motion to Introduce
Documentary Evidence from the State Court Proceedings is GRANTED.
IT IS FURTHER ORDERED THAT Petitioner’s Motion for Bail Review at Docket
No. 22 is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.6 See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
6

Olson requests a certificate of appealability both with respect to his § 2254 claims
and as to any related § 1983 claims. Because only the § 2254 claims are properly before the
Court in his Petition, the Court has considered only whether a certificate of appealability as to
those claims, and determined that none should issue.
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with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: May 14, 2018.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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