Hull v. Houser

Filing 16

ORDER OF DISMISSAL: This case is DISMISSED without prejudice to pursuing appropriate claims and appeals in the state criminal proceedings. All outstanding motions are DENIED. The Court DENIES a certificate of appealability. Any further request for a Certificate of Appealability must be addressed to the Ninth Circuit Court of Appeals. The Clerk of Court shall file a judgment accordingly. Signed by Judge Ralph R. Beistline on 7/14/2021. (SDW, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THOMAS HOWARD HULL,
Petitioner,
vs.
EARL HOUSER,
Respondent.

Case No. 3:21-cv-00031-RRB

ORDER OF DISMISSAL
Thomas Howard Hull, representing himself from Goose Creek Correctional
Center, filed a habeas petition under 28 U.S.C. § 2241, claiming that the state court
is violating his constitutional rights, and in particular, his right to a speedy trial, in
his state criminal case. 1 Mr. Hull declined to be represented by counsel, and a
response has been filed. 2 The petition is now at issue.
The Court takes judicial notice 3 that Mr. Hull was arraigned on May 8,
2019, on felony charges of sexual abuse of a minor; that his felony criminal case

Docket 1; State of Alaska v. Thomas Howard Hull, Alaska Superior Court Case No. 3AN19-04256CR. Mr. Hiratsuka also filed “related documents” at Docket 4.
1

2

Dockets 9, 11.

Judicial notice is the “court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact....” Black’s Law Dictionary
(11th ed. 2019); see also Foster Poultry Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F.
Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts routinely take judicial notice of publicly
available records ... from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
3

in the Superior Court for the State of Alaska is still ongoing; and that he remains
incarcerated. 4 Moreover, Mr. Hull moved for a dismissal of the charges against
him in his state criminal case, claiming the violation of his right to a speedy trial,
and appealed the denial of his motion. 5 His appeal is now pending in the Court of
Appeals for the State of Alaska. 6
The Supreme Court for the State of Alaska and its Chief Justice have issued
Special Orders regarding COVID-19 and criminal jury trials. Trials involving both
felonies and misdemeanors are now being held, after being postponed beginning
on March 15, 2020, when Alaska’s speedy trial rule was suspended. 7 In the spring
and summer of this year, vaccinations for COVID-19 were being given to Alaskans
in more significant numbers, 8 and trials gradually resumed. 9

Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
See State of Alaska v. Thomas Howard Hull, Alaska Superior Court Case No. 3AN-1904256CR, on line at https://records.courts.alaska.gov/eaccess/search; see also
https://vinelink.vineapps.com/search/persons.
4

5

See Alaska v. Hull, 3AN-19-04256CR.

6

See Thomas Hull v. State of Alaska, A-13859, appellate-records.courts.alaska.gov.

See http://www.courts.alaska.gov/covid19/index.htm#socj (see, e.g., 6/21/21 Order
No. 8289, and 3/15/20 Order No. 8130).
7

See id.; https://alaska-coronavirus-vaccine-outreach-alaska-dhss.hub.arcgis.com (as of
7/6/21, 639,138 Covid-19 vaccine doses had been given in Alaska).
8

9

See http://www.courts.alaska.gov/covid19/index.htm#socj.

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SCREENING REQUIREMENT
Federal courts have general habeas jurisdiction under 28 U.S.C.
§ 2241. 10

A petitioner may properly challenge state pretrial detention under

§ 2241. 11 But a court must “promptly examine” a habeas petition, and “if it plainly
appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion....” 12 In conducting its review of a self-represented litigant’s pleadings,
a court must liberally construe the pleadings and give the petitioner the benefit of
the doubt. 13
DISCUSSION
A writ of habeas corpus allows an individual to test the legality of being
detained or held in custody by the government. 14 The writ “is a vital ‘instrument
for the protection of individual liberty’ against government power.” 15 28 U.S.C. §
10

See Magana-Pizano v. INS, 200 F.3d 603, 608 & n.4 (9th Cir. 1999).

11

See Stow v. Murashige, 389 F.3d 880, 885–88 (9th Cir. 2004).

Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. The same procedural rules for 28 U.S.C. § 2254 and § 2255 govern 28 U.S.C.
§ 2241.
12

See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).

13

14

Rasul v. Bush, 542 U.S. 466, 474 (2004).

Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015) (quoting Boumediene v. Bush,
553 U.S. 723, 743 (2008)).

15

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2241 provides federal courts with general habeas corpus jurisdiction 16 over a
prisoner “in custody in violation of the Constitution or laws or treaties of the United
States.” 17 However, as explained below, Mr. Hull’s federal petition is premature.
I.

Appropriate Relief

Section 2241 is the proper avenue for a state prisoner who wishes to
challenge state custody without a state judgment. 18 For relief, Mr. Hull requests:
“Dismiss with Prejudice and release me from Unconstitutional Incarceration.” 19 A
speedy trial claim may be reviewed under § 2241 if a pretrial detainee is seeking
to compel the state to bring him to trial, but federal courts do not address the merits
underlying the state charges. 20 In this case, Mr. Hull is in the process of exhausting
his state remedies as to his claims, and the Court must abstain from intervening.

16

See Magana-Pizano, 200 F.3d at 608 & n.4.

17

28 U.S.C. § 2241(c)(3).

Stow, 389 F.3d at 886 (“[T]he general grant of habeas authority in § 2241 is available
for challenges by a state prisoner who is not in custody pursuant to a state court judgmentfor example, a defendant in pre-trial detention or awaiting extradition.”) (quoting White v.
Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004)).
18

19

Docket 1 at 8.

See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489–90 (1973)
(“Petitioner does not, however, seek at this time to litigate a federal defense to a criminal
charge, but only to demand enforcement of the Commonwealth’s affirmative constitutional
obligation to bring him promptly to trial.”) (citation omitted); McNeely, 336 F.3d at 832
(“Because his Sixth Amendment right to a speedy trial has been violated, Petitioner
should be immediately released from custody with prejudice to re-prosecution of the
criminal charges. See Strunk v. United States, 412 U.S. 434, 439–40 … (1973) (holding
that violation of Sixth Amendment speedy trial rights requires dismissal).”); Stow, 389
F.3d 880 (affirming habeas relief for state pre-trial detainee who claimed double
20

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II.

Abstention
The Younger abstention doctrine provides that federal

courts may not generally exercise jurisdiction when doing so would interfere with
state judicial proceedings. 21 The core of Younger abstention is that a federal court
cannot interfere with pending state court criminal proceedings, absent a “showing
of bad faith, harassment, or any other unusual circumstance that would call for
equitable relief.” 22 And the Ninth Circuit Court of Appeals has “specifically rejected
… the argument that a claimed violation of the Speedy Trial Clause … sufficed in
and of itself as an independent ‘extraordinary circumstance’ necessitating pre-trial
habeas consideration.” 23
As recently explained by the Court of Appeals for the Ninth Circuit, when
addressing the suspension of criminal jury trials and the right to a speedy trial:
The global COVID-19 pandemic has proven to be
extraordinarily serious and deadly. In response, many state and local
governments entered declarations curtailing operations of businesses
and governmental entities that interact with the public. Beginning on
jeopardy); Dominguez v. Kernan, 906 F.3d 1127 (9th Cir. 2018) (a state pretrial detainee
should bring federal double-jeopardy challenge under § 2241).
21

See Younger v. Harris, 401 U.S. 37, 41 (1971).

Younger, 401 U.S. at 54; see also Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)
(In Perez v. Ledesma, 401 U.S. 82, 85 (1971), the Supreme Court “limited the category
of ‘extraordinary circumstances’ to encompass only ‘cases of proven harassment or
prosecutions undertaken by state officials in bad faith without hope of obtaining a valid
conviction,’ or where ‘irreparable injury can be shown.’”).
22

23

Brown v. Ahern, 676 F.3d 899, 901 (9th Cir. 2012) (citing Carden, 626 F.2d at 84).

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March 13, 2020, the Central District of California—in light of the
exigent circumstances brought on by the pandemic and the
emergencies declared by federal and state officials—issued a series
of emergency orders….
Each order was entered upon unanimous or majority votes of
the district judges of the Central District with the stated purpose “to
protect public health” and “to reduce the size of public gatherings and
reduce unnecessary travel,” consistent with the recommendations of
public health authorities. 24
Neither bad faith nor harassment constituted any part of the decision to suspend
criminal jury trials in Alaska, 25 following emergency declarations issued by the
Governor of the State of Alaska and the President of the United States. 26

United States v. Olsen, 995 F.3d 683, 687 (9th Cir. 2021) (citations omitted) (“The
[Federal] Speedy Trial Act and our case law are silent as to what non-statutory factors
district courts should generally consider. Nevertheless, in the context of the COVID-19
pandemic, we find relevant the following non-exhaustive factors: (1) whether a defendant
is detained pending trial; (2) how long a defendant has been detained; (3) whether a
defendant has invoked speedy trial rights since the case’s inception; (4) whether a
defendant, if detained, belongs to a population that is particularly susceptible to
complications if infected with the virus; (5) the seriousness of the charges a defendant
faces, and in particular whether the defendant is accused of violent crimes; (6) whether
there is a reason to suspect recidivism if the charges against the defendant are dismissed;
and (7) whether the district court has the ability to safely conduct a trial.” Id. at 692
(citation omitted)).
24

Although, at Docket 1 page 2, Mr. Hull mistakenly relies in part upon the federal Speedy
Trial Act, 18 U.S.C. § 3161(h), the Sixth Amendment to the United States Constitution
provides a right to a speedy trial, Olsen, 995 F.3d at 686, and Alaska also has a speedy
trial rule, Alaska Criminal Rule 45.
25

See, e.g., http://www.courts.alaska.gov/covid19/docs/socj-2020-8130.pdf (3/15/20
Special Order No. 8130 of the Chief Justice of the Alaska Supreme Court: “On March 11,
2020, Governor Dunleavy issued a Public Health Disaster Emergency due to the potential
spread of the novel coronavirus disease. On March 13, President Trump declared that
the novel coronavirus outbreak constitutes a national emergency. On March 13, Governor
Dunleavy issued a mandate closing all public schools statewide ...”); see also
https://alaska-coronavirus-vaccine-outreach-alaska-dhss.hub.arcgis.com (as of 7/6/21,
26

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A federal court
must abstain under Younger if four requirements are met: (1) a stateinitiated proceeding is ongoing; (2) the proceeding implicates
important state interests; (3) the federal plaintiff is not barred from
litigating federal constitutional issues in the state proceeding; and
(4) the federal court action would enjoin the proceeding or have the
practical effect of doing so, i.e., would interfere with the state
proceeding in a way that Younger disapproves. 27
The abstention “doctrine requires dismissal of a habeas petition that
prematurely raises a Speedy Trial defense to state prosecution.” 28 The State of
Alaska has an important interest in enforcing its criminal laws and proceedings,
and Mr. Hull’s state criminal proceedings are ongoing. 29
This Court should not interfere with the state trial and appellate courts’ legal
responsibilities and decisions in the case, unless “full vindication of the petitioner’s
pretrial rights requires intervention before trial.” 30 Mr. Hull is currently litigating his

over 33 million Covid-19 cases and over 600,000 deaths in the U.S.; 68,478 Covid-19
cases and 370 Alaska resident deaths; and nearly 4 million Covid-19 deaths reported
worldwide).
27

San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
28

Brown, 676 F.3d at 903.

29

See Alaska v. Hull, Case No. 3AN-19-04256CR.

30

Page, 932 F.3d at 903.

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claims in the state courts, and his appeal is pending. 31 Thus, federal intervention
is not necessary, and this Court must abstain.
III.

Exhaustion

Exhaustion is required under common law before bringing a federal petition
for a writ of habeas corpus under 28 U.S.C. § 2241. 32 Although there is no
statutory exhaustion requirement for a petition brought under § 2241, principles of
federalism and comity require the court to abstain until all state criminal
proceedings are completed, and the petitioner exhausts the available state judicial
remedies, unless extraordinary circumstances warranting federal intervention prior
to a state criminal trial are found. A violation of the right to a speedy trial is not,
alone, an extraordinary circumstance warranting federal intervention. 33 This Court

31

Alaska v. Hull, 3AN-19-04256CR; Hull v. Alaska, A-13859.

See Braden, 410 U.S. at 488 (allowing petitioner to raise speedy trial claim prior to trial
under 28 U.S.C. § 2241, where he had exhausted available state remedies); Stow, 389
F.3d at 886; Reem, 2017 WL 6765247, at *2 (“The exhaustion requirement addresses the
same concerns of comity between federal and state courts as Younger does. See
Dickerson v. State of La., 816 F.2d 220, 225–26 (5th Cir. 1987) (‘The exhaustion doctrine
of section 2241(c)(3) was judicially crafted on federalism grounds in order to protect the
state courts’ opportunity to confront and resolve initially any constitutional issues arising
within their jurisdictions as well as to limit federal interference in the state adjudicatory
process.’).”).
32

33

Carden, 626 F.2d at 83–85.

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should only address Mr. Hull’s speedy trial claim, if at all, after he completes fully
exhausting his state court remedies. 34
Therefore, IT IS HEREBY ORDERED:
1.

This case is DISMISSED without prejudice to pursuing appropriate

claims and appeals in the state criminal proceedings.
2.

All outstanding motions are DENIED.

3.

The Court, having concluded that Petitioner has not made a

substantial showing of the denial of a constitutional right, DENIES a certificate of

See, e.g., Stack, 342 U.S. at 6–7 (“While habeas corpus is an appropriate remedy for
one held in custody in violation of the Constitution, … 28 U.S.C.A. § 2241(c)(3), the
District Court should withhold relief in this collateral habeas corpus action where an
adequate remedy available in the criminal proceeding has not been exhausted.”) (citation
omitted); Webb v. Simpson, Case No. 3:19-CV-5561-BHS-DWC, 2020 WL 589818 at *1
(W.D. Wash. Jan. 6, 2020) (slip op.) (“Petitioner alleges his constitutional rights are being
violated, including violations of his right to be free from excessive bail and his right to a
speedy trial.… Petitioner has not shown there is an absence of available state corrective
processes or that circumstances exist rendering any state process ineffective.”).
34

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appealability. 35 Any further request for a Certificate of Appealability must be
addressed to the Ninth Circuit Court of Appeals. 36
4.

The Clerk of Court shall file a Judgment accordingly.

Dated at Anchorage, Alaska, this 14th day of July, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge

28 U.S.C. 2253(c):
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from-(a) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court …
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
See 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.’” (citation
omitted); see also Wilson v. Belleque, 554 F.3d 816, 824 (9th Cir. 2009) (“We conclude
that the mere fact that a habeas petition is filed pursuant to § 2241(c)(3) does not exempt
that petition from § 2253(c)(1)(A)’s COA requirement.”).
For the reasons set forth in this Order, Mr. Hull has not made a substantial showing
of the denial of a constitutional right, or that jurists of reason could disagree with the
district court’s resolution, or that he deserves encouragement to proceed further. Banks,
540 U.S. at 705. Mr. Hull has not been incarcerated for a substantial time under federal
law, especially considering the pandemic that delayed criminal proceedings nation-wide,
and Mr. Hull has the opportunity to litigate his claims in his state court proceedings.

35

36

See Fed. R. App. P. 22(b); 9th Cir. R. 22-1.

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