Kon v. State of Alaska

Filing 42

MEMORANDUM DECISION: The Petition under 28 U.S.C. 2254 for Writ of Habeas Corpus is DENIED. The Court declines to issue a Certificate of Appealability. Signed by Judge James K. Singleton, Jr on 10/16/19. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MARK JOSEPH KON,
Petitioner,

No. 3:18-cv-00109-JKS

vs.
MEMORANDUM DECISION
NANCY DAHLSTROM, Commissioner,
Alaska Department of Corrections,1
Respondent.

Mark Joseph Kon, a former state prisoner now represented by counsel, filed a Petition for
a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254, seeking review of the
Alaska Superior Court’s revocation of his probation related to his 1998 conviction for firstdegree sexual abuse of a minor. At the time he filed his Petition, Kon was in the custody of the
Alaska Department of Corrections (“DOC”) and incarcerated at Goose Creek Correctional
Center. Public records indicate that Kon was released on probation on May 18, 2018, and is now
under supervised custody. See https://vinelink.vineapps.com/search/AK (Inmate No. 389388).
Respondent has answered, and Kon has replied.
1

Nancy Dahlstrom, Commissioner, Alaska Department of Corrections, is
substituted for the State of Alaska. FED. R. CIV. P. 25(c); Rule 2(a), Rules Governing Section
2254 Cases in the United States District Courts; Stanley v. Cal. Supreme Court, 21 F.3d 359, 360
(9th Cir. 1994).
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I. BACKGROUND/PRIOR PROCEEDINGS
In 1998, Kon pleaded no contest to two counts of first-degree sexual abuse of a minor
involving his daughters. He was sentenced to a composite term of 30 years’ imprisonment with
18 years suspended. After serving his active term of imprisonment, Kon was released on
probation in 2010. As a condition of probation, Kon was required to “actively participate in and
successfully complete an approved sexual offender treatment program as directed by the
Department of Corrections.” The same condition mandated that Kon “[was] not to discontinue
treatment without the written approval of [his] Probation/Parole Officer.” Pursuant to this
condition, Kon was assigned to a sex offender treatment program tailored to defendants, like
Kon, who refused to acknowledge that they had committed a sexual offense, known as a “deniers
group.”
In September 2013, the DOC petitioned the superior court to revoke Kon’s probation on
the ground that he had violated the condition requiring him to engage in sex offender treatment.
According to the petition, Kon was discharged from the deniers group when he yelled “Up
yours!” to the group leader and said “I don’t give a fuck about you or your fucking program”
after the group leader asked him to leave for answering a phone call during a session. The
superior court found that Kon had violated his probation and imposed 40 months of previouslysuspended prison sentence.
Through counsel, Kon appealed the revocation of his probation and his sentence, arguing
that: 1) the evidence presented to the superior court was legally insufficient to support the
superior court’s finding that he willfully discontinued his sex offender treatment; 2) the
probation condition requiring him to engage in sex offender treatment was so vague that he
lacked fair notice of what conduct would constitute a violation of the condition; and 3) the 40month sentence was excessive. The Alaska Court of Appeal unanimously affirmed the judgment
of the superior court is a reasoned, unpublished opinion issued on November 29, 2017. Kon v.
State, No. A-11867, 2017 WL 5998766, at *3 (Alaska Ct. App. Nov. 29, 2017) (“Kon I”).

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While the appeal was pending, Kon was released on bail in July 2014 and reassigned to
the deniers group. Four months later, the DOC again petitioned the superior court to revoke
Kon’s probation for failure to comply with the probation condition requiring him to engage in
sex offender treatment. Although Kon had attended the required sessions, he refused to
acknowledge that he had sexually abused his daughters at the end of the month-long session.
The superior court held an evidentiary hearing on the motion, at which Kon’s probation officer
testified that, even in the deniers group, “defendants are required to admit that they engaged in
some kind of sexual offense, so that they ‘can then move forward [with] community-based sex
offender treatment,’ work out a ‘relapse prevention plan,’ and work on ‘coping strategies to deal
with high-risk situations.’” Kon v. State, No. A-12287, 2018 WL 480454, at *2 (Alaska Ct. App.
Jan. 17, 2018) (“Kon II”). At the conclusion of the hearing, the trial court “f[ound] . . . by the
preponderance of the evidence that [Kon] was discharged as unsuccessful from the deniers
group.” Id. at *3. The court revoked Kon’s probation and imposed 18 months of Kon’s
previously-suspended jail time.
Again proceeding through counsel, Kon filed another direct appeal that challenged the
second probation revocation. Kon argued inter alia that the wording of his condition of
probation failed to give him sufficient notice of what it meant to “actively participate in” or
“successfully complete” sex offender treatment and that his sentence was excessive. The Alaska
Court of Appeal affirmed the revocation of Kon’s probation and the 18-month sentence he
received in a reasoned, unpublished opinion issued on January 17, 2018. Kon II, 2018 WL
480454, at *5. Kon petitioned the Alaska Supreme Court for discretionary review of both
revocation decisions, which were summarily denied on March 6, 2018, and April 30, 2018,
respectively.
Kon timely filed a pro se Petition for a Writ of Habeas Corpus to this Court dated April
26, 2018. Docket No. 1; see 28 U.S.C. § 2244(d)(1),(2). Kon concurrently moved for the
appointment of counsel, and a previously-assigned district court judge appointed the Federal

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Public Defender’s Office as counsel. Docket Nos. 3, 5. After reviewing Kon’s case, appointed
counsel filed a Certificate of No Merit Briefing Pursuant to Anders v. California, 386 U.S. 738
(1967). Docket No. 13 (“Anders brief”). Appointed counsel concluded that, because Kon’s
petitions for hearing to the Alaska Supreme Court did not cite or discuss federal law, Kon had
not exhausted his potential federal habeas claims. Id. at 1. Counsel moved to withdraw from the
case. Id. at 4.
This Court held a hearing to address counsel’s withdrawal motion and ordered
Respondent to file briefing addressing Kon’s claims for relief and the Anders certificate. Docket
No. 19. The Court also ordered that the Federal Public Defender’s Office would continue to
represent Mr. Kon, but allowed Kon an opportunity to reply to Respondent’s briefing on his own
behalf and also address the Anders brief. Docket No. 27. Briefing is now complete, and the case
is before the undersigned judge for adjudication.
II. GROUNDS/CLAIMS
In two direct appeals before the state courts, Kon challenged the two revocations of
probation on the grounds that: 1) there was insufficient evidence that he violated the probation
condition; 2) the probation condition was too vaguely worded to give him sufficient notice of
what type of conduct would violate the condition; and 3) each sentence imposed following
revocation was excessive. In his pro se Petition before this Court, Kon raises two claims relating
to his initial 1998 conviction following his no contest plea. Namely, Kon contends that: 1) his
original trial attorney failed to file an appeal on his behalf; and 2) he was subjected to antiSemitic comments while incarcerated on his initial conviction.
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

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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 term unreasonable is a
common term in the legal world. The Supreme Court has cautioned, however, that the range of
reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly
established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating
whether a rule application was unreasonable requires considering the rule’s specificity. The
more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.”).
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,
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

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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.

Mootness
Article III, § 2 of the United States Constitution requires the existence of a case or

controversy through all stages of federal judicial proceedings. This means that, throughout the
litigation, the petitioner “must have suffered, or be threatened with, an actual injury traceable to
the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990) (citations omitted); see also Preiser v. Newkirk, 422 U.S. 395,
401 (1975) (“The rule in federal cases is that an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.”). If an event occurs subsequent to the
filing of a lawsuit which deprives a court of the ability to provide meaningful relief, the case
becomes moot and is subject to dismissal. See United States v. Alder Creek Water Co., 823 F.2d
343, 345 (9th Cir. 1987) (“A case becomes moot when interim relief or events have deprived the
court of the ability to redress the party’s injuries.”). Similarly, a claim for habeas relief becomes
moot when the controversy between the parties is no longer alive because the party seeking relief
has obtained the relief requested. See, e.g., Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir.
1991) (a claim is moot when the court no longer has power to grant the requested relief).
Mootness is a jurisdictional issue. See Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir.

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2009).
The record before this Court indicates that Kon has, since the filing of his Petition, been
released from prison on probation.2 Neither party has briefed the issue of mootness in these
proceedings; however, the Court must consider jurisdictional issues even when they are not
raised by the parties. Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002). It is
not clear to the Court whether Kon is still subject to the probation condition he challenged before
the state courts.3 It appears, however, that if Kon were successful in challenging his probation
revocation, he would be entitled to re-sentencing, which could potentially result in the reduction
or elimination of his remaining probation term or suspended sentence. It therefore appears that
this case is not moot and is properly before the Court. See United States v. Hulen, 879 F.3d.
1015, 1018 (9th Cir. 2018).
B.

Claims Raised Before the State Courts
1.

Exhaustion

Respondent urges the Court to dismiss this case on exhaustion grounds, noting that
2

Because it appears that Kon was in state prison when he filed the initial pro se
petition on April 26, 2018, he satisfies the “in custody” requirement of 28 U.S.C. § 2254(a)
(limiting § 2254 to those persons “in custody pursuant to the judgment of a State court” at the
time the petition is filed). See Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005) (“in
custody” requirement for purposes of federal habeas relief met for petitioner on probation).
3

In any event, Kon does not seek injunctive relief such as eliminating the probation
condition that requires successful completion of sex offender treatment on the grounds that
requiring him to admit responsibility violates his rights against compelled speech (freedom of
speech) or self-incrimination. Moreover, courts have recognized that requiring a convicted sex
offender to show “acceptance of responsibility for past offenses is a critical first step in a
prison’s rehabilitation program for such offenders” that overrides that individual’s First
Amendment rights, see Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010) (citations and
quotation marks omitted), and “[r]equiring inmates labeled as sex offenders to admit their
offenses and take responsibility for their sexual behaviors as part of the treatment program does
not violate the inmates’ privilege against self-incrimination,” Neal v. Shimoda, 131 F.3d 818,
833 (9th Cir. 1997); see also Minnesota v. Murphy, 465 U.S. 420, 435-36 n.7 (1983) (“[A] state
may validly insist on answers to even incriminating questions and hence sensibly administer its
probation system, as long as it recognizes that the required answers may not be used in a
criminal proceeding and thus eliminates the threat of incrimination.”).
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appointed counsel has also concluded that Kon failed to exhaust any of the claims he raised on
direct appeal to the state courts.4 This Court may not consider claims that have not been fairly
presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29
(2004) (citing cases). Exhaustion of state remedies requires the petition to fairly present federal
claims to the state courts in order to give the state the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A
petitioner must alert the state courts to the fact that he is asserting a federal claim in order to
fairly present the legal basis of the claim. Id. at 365-66. To satisfy the “fairly present”
requirement, the petitioner must present his or her federal claim to “each appropriate court
(including a state supreme court with powers of discretionary review)” so that the each court is
alerted to the federal nature of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v.
Henry, 513 U.S. 364, 365–66 (1995) (per curiam). In Alaska, this means that claims must first
be presented to the Alaska Superior Court. If the petitioner disagrees with that result, the claim
should be raised to the Alaska Court of Appeals, and if he disagrees with that result, the claim
should be raised in a petition for hearing to the Alaska Supreme Court.
In the Ninth Circuit, a petitioner must make the federal basis of the claim explicit either
by referencing specific provisions of the federal Constitution or statutes or by citing to federal
case law. Robinson v. Schiro, 595 F.3d 1086, 1101 (9th Cir. 2010). Mere similarity of claims
between a state law claim and a federal law claim is insufficient for exhaustion purposes.

4

In Anders, the U.S. Supreme Court “set forth a procedure for an appellate counsel
to follow in seeking permission to withdraw from representation when he concludes that an
appeal would be frivolous; that procedure includes the requirement that counsel file a brief
‘referring to anything in the record that might arguably support the appeal.’” Smith v. Robbins,
528 U.S. 259, 268 (2000) (quoting Anders, 386 U.S. at 744). Because there is no general
constitutional right to counsel in collateral post-conviction review proceedings, however,
petitioners do not have a constitutional right to insist on the Anders procedures in federal habeas
proceedings. See Graves v. McEwen, 731 F.3d 876, 878 (9th Cir. 2013). In any event, appointed
counsel’s review of the case and subsequent briefing, and this Court’s order allowing Mr. Kon
an opportunity to respond, complied with the Anders framework. See Anders, 386 U.S. at 744.
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Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). In order to present the substance of a claim
to a state court, the petitioner must reference a specific federal constitutional provision as well as
a statement of facts that entitle the petitioner to relief. Gray v. Netherland, 518 U.S. 152, 162-63
(1996). Once the petitioner fairly presents the claim to the state courts, exhaustion is satisfied
even if the state court’s decision is silent on the particular claim. See Dye v. Hofbauer, 546 U.S.
1, 3, (2005) (per curiam).
As appointed counsel concedes, although Kon raised his insufficiency of the evidence
and harsh sentencing claims all the way to the Alaska Supreme Court by petition for review,
those claims were raised solely in state law terms without reference to any federal constitutional
violation. And although Kon argued in federal constitutional terms before the Alaska Court of
Appeal that the probation condition requiring him to successfully complete sex offender
treatment was too vague to give him sufficient notice of conduct that would violate the
condition, he did not raise that claim in either of his petitions for review before the Alaska
Supreme Court. Accordingly, none of the claims Kon argued before the state court have been
properly exhausted.
Unexhausted claims are subject to dismissal. See Rhines v. Weber, 544 U.S. 269, 275-78
(2005). However, this Court need not rely on this basis as it may deny the Petition on the merits
notwithstanding the lack of exhaustion of state court remedies. 28 U.S.C. § 2254(b) (2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of the State.”); Franklin v.
Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[C]ourts are empowered to, and in some cases
should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an
asserted procedural bar.”). Accordingly, this Court declines to dismiss the unexhausted claims
solely on exhaustion grounds and will instead reach the merits of the claims as discussed below.

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2.

Merits
i.

Sufficiency of the Evidence

Kon first argued in both direct appeals (i.e., Kon I and Kon II) that the evidence was
legally insufficient to support either the first or second probation revocation. The standard of
proof beyond a reasonable doubt, which typically applies in criminal cases, does not apply in
probation revocation proceedings. See United States v. Knights, 534 U.S. 112, 120 (2001)
(probationers re-engaging in criminal activities “face risk of probation, and possible
incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable
doubt, among other things, do not apply”). In Douglas v. Buder, 412 U.S. 430, 432 (1973), the
U.S. Supreme Court held that a finding of a probation violation was unconstitutional where the
finding was “so totally devoid of evidentiary support as to be invalid under the Due Process
Clause of the Fourteenth Amendment.”
At least one Circuit has equated the Douglas v. Buder standard to the “some evidence”
standard applicable to the revocation of a prisoner’s good time credits in prison disciplinary
proceedings set forth in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill,
472 U.S. 455 (1985). See Newmones v. Sec’y, Florida Dep’t of Corrs., 546 F. App’x 812, 816
(11th Cir. 2013). Under the “some evidence” standard, the Court does not examine the entire
record, make an independent assessment of the credibility of witnesses, or weigh the evidence.
Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003); see also Castro v. Terhune, 712 F.3d 1304,
1315 (9th Cir. 2013) (court may not “examine the entire record, independently assess witness
credibility, or reweigh the evidence”) (citation and internal quotations omitted). Rather, “the
relevant question is whether there is any evidence in the record that could support the
conclusion.” Hill, 472 U.S. at 455-56; Bruce, 351 F.3d at 1287.
Other courts, including some district courts in this Circuit, have applied a “modified”
version of Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original), which asks
whether, “after viewing the evidence in the light most favorable to the prosecution, any rational

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trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
See McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). By its literal
terms, however, Jackson applies to criminal proceedings and convictions, and not to the
post-conviction revocation of probation in state trial courts. See Jackson, 443 U.S. at 319; cf.
United States v. Aquino, 794 F.3d 1033, 1035-36 (9th Cir. 2015) (Jackson standard applied in the
review of federal supervised release violation). Nonetheless, some district courts have evaluated
the sufficiency of the evidence in support of a state probation revocation by asking whether any
rational trier of fact could have found, by a preponderance of the evidence, that the probationer
violated any of the conditions of his probation. See, e.g., Ajaj v. Sierra Conservation Ctr., 2014
WL 1364939, No. CV 11-5782, at *5 (C.D. Cal. Apr. 3, 2014). Under the Jackson standard, it is
still within the province of the state trial court to determine the credibility of witnesses, and the
Court assumes that the finder of fact resolved any conflicts in the evidence, made all reasonable
inferences, and considered the evidence at trial in a manner that supports the verdict. Jackson,
443 U.S. at 318-19.
Ultimately, however, this Court need not determine whether the Douglas v. Buder
standard or the modified Jackson standard should apply in the present case. Under either
standard, Kon’s challenge to the sufficiency of the evidence plainly fails. This is particularly
true given that, because the AEDPA applies to Kon’s case, this Court must apply an “additional
layer of deference” to legal insufficiency claims. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th
Cir. 2005; see also Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011) (where insufficiency of
the evidence claim is “subject to the strictures of AEDPA, there is a double dose of deference
that can rarely be surmounted”). In this case, the state courts’ determinations that Kon violated
the terms of his probation, during both the original and subsequent probationary periods, is
reasonable. Given the facts as recounted by the Alaska Court of Appeals, a rational trier of fact
could have certainly found that Kon’s disruptive behavior in the first probationary period, and
his unwillingness to comply with the express terms of the treatment with respect to the second

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probationary period, constituted “some evidence” under the Douglas v. Buder standard to
support both probation revocations as well as evidence from which a rational judge could have
found both probation violations by a preponderance of the evidence under the modified Jackson
standard. Simply put, the state courts’ rejection of Kon’s challenge to the sufficiency of the
evidence was not contrary to, or an objectively unreasonable application of, any clearly
established federal law as determined by the United States Supreme Court. See 28 U.S.C.
§ 2254(d).
More troubling, however, is any contention that the probation revocation was unlawful
because adhering to the condition requiring successful completion of sex offender treatment
would require him to admit against his will some of the facts underlying his conviction. The
Alaska Court of Appeal considered and rejected this claim as follows:
To the extent Kon is arguing that he was entitled to refuse treatment because he
asserts that he is factually innocent of sexually abusing his daughters, we reject that
assertion. When Kon pleaded no contest to sexually abusing his daughters, he agreed
that the superior court could sentence him under the assumption that he had committed
these crimes (even though Kon refused to admit the truth of the allegations). Thus, at the
probation revocation hearing, the superior court was authorized to proceed under the
assumption that Kon had sexually abused his daughters.
Kon II, 2018 WL 480454, at *3 (footnote omitted).
Under Alaska law, a no contest plea is equivalent to a guilty plea. See Scott v. State, 928
P.3d 1234, 1237-38 (Alaska Ct. App. 1996) (holding that a defendant’s no contest plea “is an
admission of every essential element of the offense well pleaded in the charge” and that, when
sentencing a defendant who has pleaded no contest, a judge “is entitled to treat each element of
the offense as having been proved, despite the defendant’s protestations of innocence”); see also
Ashenfelter v. State, 988 P.2d 120, 123 (Alaska Ct. App. 1999). The Ninth Circuit has similarly
held that, “[b]ecause ‘a federal probation revocation hearing is clearly not a civil suit growing
out of the act charged,’ a conviction resulting from a [no contest] plea is no different ‘from any
other conviction for purposes of a federal probation revocation hearing.’” United States v.
Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003) (quoting United States v. Guardarrama, 742 F.2d

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487, 489 (9th Cir. 1984) (holding that a state conviction resulting from a nolo contendere plea,
which is equivalent to a guilty plea under California law, is probative of a charge that a
supervised releasee violated the terms of his release that he not commit “another . . . crime” and
reliance on the plea and conviction did not violate releasee’s due process rights). The decision
of the Alaska Court of Appeal thus does not contravene or unreasonably apply Federal law,
much less clearly-established authority of the U.S. Supreme Court. In the absence of clearlyestablished Supreme Court law supporting this claim, and in light of the discussion in footnote 3,
supra, Kon cannot obtain federal habeas relief. See Knowles v. Mirzayance, 556 U.S. 111, 121
(2009) (“it is not an unreasonable application of clearly established Federal law for a state court
to decline to apply a specific legal rule that has not been squarely established by this Court”)
(citations and internal quotations omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008)
(“Because our cases give no clear answer to the question presented, . . . it cannot be said that the
state court unreasonably applied clearly established Federal law”) (citation, internal brackets and
quotations omitted).
ii.

Insufficient Notice

Kon additionally contended in each appeal that the trial court failed to give him sufficient
notice of what it meant to “actively participate in” sex offender treatment, or of what it meant to
“successfully complete” that treatment. Specifically, he averred that those two phrases did not
specify that he would have to admit some of the facts of the underlying criminal offenses that led
to his conviction.
An essential component in due process is that persons placed on probation or parole be
given fair warning of the acts which may lead to the revocation of their probation or parole. See
United States v. Grant, 807 F.2d 837, 838 (9th Cir. 1987). Here, however, “Kon was explicitly
told by his treatment provider and his probation officer that, in order to stay in treatment, he
would have to acknowledge at least some aspects of the underlying offenses.” Kon II, 2018 WL
480454, at *4. The state court’s finding to that effect is both reasonable and fully supported by

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the record, and thus undermines any claimed lack of notice.
iii.

Harsh Sentence

Finally, Kon challenged on direct appeal the 40 and 18 months’ previously-suspended
jail time imposed by the trial court for the first and second probation revocations, respectively.
The Court of Appeals affirmed each sentence as “not clearly mistaken.” Kon I, 2017 WL
5998766, at *3; Kon II, 2018 WL 480454, at *4.
Kon fares no better on federal habeas review. It is well-established that sentencing error
claims which involve solely the interpretation and/or application of state sentencing law are not
cognizable on federal habeas review. See, e.g., Christian v. Rhode, 41 F.3d 461, 469 (9th Cir.
1994); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); Hendricks v. Zenon, 993
F.2d 664, 674 (9th Cir. 1993); see also Estelle, 502 U.S. at 67-68 (reiterating that “it is not the
province of a federal habeas court to reexamine state court determinations on state law
questions”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“We accept a state court’s
interpretation of state law, . . . and alleged errors in the application of state law are not
cognizable in federal habeas corpus.”).
Moreover, even if Kon had raised a federal claim alleging cruel and unusual punishment
in violation of the Eighth Amendment, he would not be entitled to relief on it. The Eighth
Amendment, applicable to the States through the Fourteenth Amendment, proscribes the
infliction of “cruel and unusual punishments.” U.S. CONST. amend. VIII; Kennedy v. Louisiana,
554 U.S. 407, 419 (2008). The Supreme Court has held that “the only relevant clearly
established law amenable to the ‘contrary to’ or ‘unreasonable application of’ framework is the
gross disproportionality principle, the precise contours of which are unclear, applicable only in
the ‘exceedingly rare’ and ‘extreme’ case.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (citation
omitted). In determining whether to infer gross disproportionality, a federal court should
examine whether a petitioner’s sentence is justified by the gravity of his triggering offense and
his criminal history, a process similar to the three-pronged approach employed by California

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state courts. See Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004). In light of the applicable
United States Supreme Court authority, Kon cannot show that his sentence was disproportionate
or excessive in light of his actions in frustrating efforts at sex offender rehabilitation. See, e.g.,
Ewing v. California, 538 U.S. 11, 29-30 (2003) (sentence of 25 years to life for grand theft of
$1,200 of golf clubs was not cruel and unusual); Lockyer, 538 U.S. at 77 (two consecutive
sentences of 25 years to life for petty theft was not cruel and unusual). Kon is thus not entitled
to relief on any challenge to either sentence imposed as a result of his probation revocations.
C.

Pro Se Claims for Relief
In his initial pro se Petition for habeas relief (Docket No. 1), Kon brings two claims

relating to his 1998 initial conviction. First, he faults plea counsel for failing to appeal his
conviction following his no contest plea. He additionally alleges that he was subjected to antiSemitic comments and threats while incarcerated on his initial conviction.
Under the AEDPA, there is a one-year limitations period in which a state prisoner may
file a federal habeas petition challenging his or her state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court. The limitation period shall
run from the latest of(A) the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review;
. . . or
(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
In this case, judgment was entered on the underlying criminal offenses on September 22,
1998. Because Kon did not file a direct appeal, his conviction became final for purposes of 28
U.S.C. § 2244(d)(1)(A) 30 days later on October 22, 1998, when the time for filing such appeal
expired. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). The one-year deadline
under the AEDPA had long passed by the time Kon filed the initial pro se Petition on April 26,

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2018. Consequently, Kon is not entitled to relief on the claims raised in that Petition either.
V. CONCLUSION AND ORDER
Kon 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 the Court declines to issue a Certificate of
Appealability. 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
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: October 16, 2019.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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