Polty v. Houser

Filing 9

ORDER DIRECTING SERVICE AND RESPONSE: Request for court-appointed counsel or Notice of Intent to Proceed Without Counsel due 8/20/2021. See Order for additional deadlines. Signed by Judge Ralph R. Beistline on 7/19/21. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
WILLIAM D. POLTY,
Petitioner,
vs.
EARL HOUSER,
Respondent.

Case No. 3:21-cv-00114-RRB

ORDER DIRECTING SERVICE AND RESPONSE
On May 11, 2021, William D. Polty, representing himself from Goose
Creek Correctional Center, filed a habeas petition under 28 U.S.C. § 2241,
claiming that the state court is denying his right to a speedy trial in two ongoing
state criminal cases. 1

The Court takes judicial notice 2 that Mr. Polty’s state

criminal cases remain ongoing, and that he is still incarcerated. 3

1

Docket 1 (citing State of Alaska Case Nos. 3AN-16-09919CR, and 3AN-18-10462CR).

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
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
2

See https://records.courts.alaska.gov/eaccess/search, State of Alaska v. William
Duncan Polty, Alaska Superior Court Case Nos. 3AN-16-09919CR, and 3AN-1810462CR; https://vinelink.vineapps.com/search/persons.

3

The Alaska Superior Court record shows that, in the 2016 criminal
case, the Initial Charging Document was filed on December 21, 2016, but because
the case was not timely transferred to the Superior Court, the seven Class C
Felony charges involving importing alcohol, making or delivering a controlled
substance, possession of over 25 cannabis plants, possession of a controlled
substance, criminal non-support, and selling alcohol without a license, were
dismissed against Mr. Polty on March 23, 2017, and re-filed in the Superior Court
on April 3, 2017. 4 In his 2018 case, Mr. Polty was arraigned on November 3, 2018,
on Assault 3, a Class C Felony, and thereafter on misdemeanors, including
unlawful contact in violation of a court order, and violating conditions of release. 5
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. 6

4

Alaska v. Polty, 3AN-16-09919CR.

5

Alaska v. Polty, 3AN-18-10462CR.

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).
6

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In the spring and summer of this year, vaccinations for COVID-19 were being given
to Alaskans in more significant numbers, 7 and trials gradually resumed. 8
SCREENING REQUIREMENT
Federal courts have general habeas jurisdiction under 28 U.S.C.
§ 2241. 9

A petitioner may properly challenge state pretrial detention under

§ 2241. 10 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...” 11 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. 12

See https://alaska-coronavirus-vaccine-outreach-alaska-dhss.hub.arcgis.com (as of
7/16/21, 649,091 Covid-19 vaccine doses have been given in Alaska).

7

8

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

9

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

10

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.
11

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)).

12

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The Court, therefore, reviewed the Petition and issued an Order to
Show Cause requiring Mr. Polty to explain whether he has taken steps to attempt
to bring his speedy trial claim in his state criminal cases. 13 In his Response to the
Order to Show Cause, Mr. Polty is adamant that he has no interest in negotiating
a plea, and has repeatedly sought, through his court-appointed attorneys, to go to
trial to prove his innocence. 14
DISCUSSION
Mr. Polty states that his right to a speedy trial in his 2016 and 2018
state criminal cases has been violated, and asserts that he has requested trials to
prove his innocence in his cases for years. 15 A response to this claim is required.

13

Docket 6.

14

Dockets 7, 8.

Dockets 1, 7, 8. Mr. Polty states that “Alaska is using [the] Pandemic as an excuse.”
Docket 1 at 6-7. The Court notes that many state pre-trial petitioners have used that
language in their federal petitions, most of which appear to be written in the same
handwriting. Although the Court has found some of those petitions, which also include
claims of conspiracies and corruption regarding the Covid-19 pandemic, to be frivolous,
Mr. Polty’s Petition does not include any other such language, and he appears to express
genuine speedy trial concerns, rather than frivolous claims. See, e.g., Marmolejos v.
Houser, 3:21-cv-100-RRB, Docket 6 at 6–7 (“[A]ssertions that the state courts are using
‘Covid-19 to continue corruption,’ that there is ‘no remedy’ in state court, ‘only corruption,’
that Covid-19 is being used as an excuse to delay, and that the Chief Justice of the Alaska
Supreme Court and the Superior Court are conspiring to obstruct justice, are frivolous.”);
Roland v. Houser, 3:21-cv-135-RRB, Docket 6 at 10-11 (“[A]ssertions that the state courts
have used Covid-19 as an excuse to delay trials within the last year as part of a
conspiracy, are frivolous…. The Court will not grant relief based upon frivolous claims of
conspiracies.”).
15

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I.

Speedy Trial Claim
A writ of habeas corpus allows an individual to test the legality of being

detained or held in custody by the government. 16 The writ “is a vital ‘instrument
for the protection of individual liberty’ against government power.” 17 28 U.S.C. §
2241 provides federal courts with general habeas corpus jurisdiction 18 over a
prisoner “in custody in violation of the Constitution or laws or treaties of the United
States.” 19
The four-part test articulated by the Supreme Court in Barker v.
Wingo 20 is used to determine whether government delay had abridged a
defendant’s Sixth Amendment right to a speedy trial. 21

The factors to be

considered in a Barker inquiry include: “(1) the length of the delay; (2) the reasons
for the delay; (3) the accused’s assertion of the right to speedy trial; and (4) the
prejudice caused by the delay. No single factor is necessary or sufficient.”22
16

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)).

17

18

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

19

28 U.S.C. § 2241(c)(3).

20

Barker v. Wingo, 407 U.S. 514 (1972).

McNeely, 336 F.3d at 826 (citing Doggett v. United States, 505 U.S. 647, 652 n.1
(1992)).
21

Id. (citing Barker, 407 U.S. at 530); see also United States v. Sheikh, No. 2:18-cr-00119
WBS, ___ F. Supp. 3d ___, 2020 WL 5995226, at *3 (E.D. Cal. Oct. 9, 2020) (Discussing
22

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However, “[t]he length of delay is the threshold factor.” 23 In McNeely v. Blanas,24
the Ninth Circuit found a delay of three years to be substantial, such that prejudice
was presumed, triggering an inquiry under Barker v. Wingo. 25 Given that he is
incarcerated while awaiting trial on charges initially brought against him in 2016
and 2018, Mr. Polty has met the threshold factor.
For relief, Mr. Polty requests “(1) [d]ismissal with prejudice if this Court
finds justifiable cause to do so[;] or (2) … [intervention] and [an] Order [to] Alaska
to provide … an immediate trial.” 26 If he is not brought to trial, Mr. Polty wants to
be released from custody; and if given a choice, Mr. Polty prefers dismissal to a
speedy trial. 27

the right to a speedy trial in a federal criminal case, explaining that “the coronavirus alone
does not give the court the liberty to simply exclude time. Rather, the court must conduct
a ‘deliberate inquir[y] into whether an ends-of-justice continuance is justified by the
circumstances surrounding a particular case.’”) (citation omitted); 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).
23

United States v. Myers, 930 F.3d 1113, 1119 (9th Cir. 2019) (citing Doggett, supra).

24

336 F.3d 822, 826 (9th Cir. 2003).

25

407 U.S. 514 (1972).

26

Docket 1 at 8.

Id.; see also 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
27

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The due process clauses of the Fifth and Fourteenth Amendments bar
pretrial detention unless detention is necessary to serve a compelling government
interest. 28

Thus, although a state may “impose conditions on an arrestee’s

release, such as bail … [b]ail set at a figure higher than an amount reasonably
calculated to fulfill [its] purpose [of assuring the presence of the accused at trial] is
‘excessive’ under the Eighth Amendment.” 29
Mr. Polty’s request that he be released from incarceration also raises
the issue of whether the state has set appropriate conditions on his release
pending trial. 30

In re Humphrey is a recent California Supreme Court case

U.S. 434, 439–40 … (1973) (holding that violation of Sixth Amendment speedy trial rights
requires dismissal).”).
Reem v. Hennessy, Case No. 17-cv-06628-CRB, 2017 WL 6765247, at *1 (N.D. Cal.
Nov. 29, 2017) (unpublished) (citing Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th
Cir. 2014)).
28

29

Id. (quoting Lopez-Valenzuela, 770 F.3d at 777).

See id., at *2 (“A number of circuit courts have entertained habeas petitions alleging
unconstitutional detention or excessive bail prior to trial.”) (citing Stack v. Boyle, 342 U.S.
1, 6–7 (1951); Arevalo v. Hennessy, 882 F.3d 763, 767 (9th Cir. 2018) (where pretrial
detainee alleged due process violations regarding bail, and Younger abstention was not
appropriate because detainee properly exhausted state remedies, judgment was
reversed and remanded with instructions to grant a conditional writ of habeas corpus);
Atkins v. People of the State of Mich., 644 F.2d 543, 549 (6th Cir. 1981) (“The protection
against unreasonable bail pending trial has been found by the federal courts to be one of
the few rights ... whose vindication may be asserted prior to trial, either by direct appeal
of an adverse interlocutory order or by a petition for habeas corpus.”) (emphasis added)
(further citations omitted)).
30

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addressing an appeal on a state petition for writ of habeas corpus from a pretrial
detainee:
The common practice of conditioning freedom
solely on whether an arrestee can afford bail is
unconstitutional. Other conditions of release — such as
electronic monitoring, regular check-ins with a pretrial
case manager, community housing or shelter, and drug
and alcohol treatment — can in many cases protect
public and victim safety as well as assure the arrestee’s
appearance at trial. What we hold is that where a
financial condition is nonetheless necessary, the court
must consider the arrestee’s ability to pay the stated
amount of bail — and may not effectively detain the
arrestee “solely because” the arrestee “lacked the
resources” to post bail. 31
In Mr. Polty’s 2018 case, a trial setting conference as well as bail
hearings have been continued since Mr. Polty filed his federal petition; and another
trial setting conference is currently set for August 11, 2021. 32 In his 2016 criminal
case, a discovery hearing which was set for May 17, 2021, was continued “off
record,” and a trial setting conference scheduled for June 21, 2021, was
“Continued Pending Negotiations.” 33
II.

Abstention

In re Humphrey, 482 P.3d 1008, 1012–13 (Cal. 2021) (quoting Bearden v. Georgia,
461 U.S. 660, 667, 668 (1983)).
31

32

Alaska v. Polty, 3AN-18-10462CR.

33

Alaska v. Polty, 3AN-16-09919CR.

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The Younger abstention doctrine provides that federal courts may not
generally exercise jurisdiction when doing so would interfere with state judicial
proceedings. 34 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.” 35 A federal court
must abstain under Younger if four requirements are met:
(1) a state-initiated 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. 36
Mr. Polty claims that the Superior Court is using the delays caused by
the pandemic to pressure him into making a plea deal instead of going to trial, and

34

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.’”); Brown v. Ahern, 676 F.3d 899,
901 (9th Cir. 2012) (“Consistent with this observation, we specifically rejected in Carden
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.”) (citing Carden at 84).
35

36

San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
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that he has tried, but not been able, to bring the speedy trial issue in the state
courts. 37 Although the Court “is acutely aware of the statistics of how many people
continue to be infected, hospitalized, and—tragically—die due to the coronavirus
every day, all across the country … the Constitution does not turn on these
considerations.” 38
The Court of Appeals for the Ninth Circuit has directly addressed
abstention, regarding the claim of a state court violating the right to a speedy trial,
explaining:
Younger does not “require[ ] a district court to abstain
from hearing a petition for a writ of habeas corpus
challenging the conditions of pretrial detention in state
court” where (1) the procedure challenged in the petition
is distinct from the underlying criminal prosecution and
the challenge would not interfere with the prosecution, or
(2) full vindication of the petitioner’s pretrial rights
requires intervention before trial. 39
The State of Alaska has an important interest in enforcing its criminal
laws, and Mr. Polty’s criminal case in state court remains ongoing. Mr. Polty’s
allegation, that he is being denied his right to a speedy trial in state court, should

37

Docket 1 at 7.

United States v. Henning, ___ F. Supp. 3d ___, 2021 WL 222355, at *8 (C.D. Cal. Jan.
19, 2021).

38

Page v. King, 932 F.3d 898, 903 (9th Cir. 2019) (citing Arevalo, 882 F.3d at 764, 766–
67).

39

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normally be addressed in his state court criminal proceedings. 40 This Court should
not interfere with the trial court’s fact-finding responsibilities and legal decisions in
that case, unless “full vindication of the petitioner’s pretrial rights requires
intervention before trial.” 41
Intervention may be required here, where Mr. Polty claims that he is
unable to litigate this issue in his 2016 and 2018 state criminal cases. 42 And given
the backlog of cases in the state courts as a result of the pandemic, Mr. Polty has
little assurance that trial will be held anytime soon. 43
As the Ninth Circuit has explained, where a petitioner
alleges that the state is violating his due process right not
to be detained pretrial … and that his complete loss of
liberty for the time of pretrial detention is ‘irretrievable’
regardless of the outcome at trial ... then regardless of
the outcome at trial, a post-trial adjudication of his claim
will not fully vindicate his right to a current and proper
pretrial probable cause determination.
His claim
therefore ‘fits squarely within the irreparable harm
exception’ to Younger that we applied in Arevalo. 44

See Brown, 676 F.3d at 900–01 (A “federal court’s exercise of jurisdiction over a habeas
petition that raises an affirmative defense to state prosecution before trial and conviction
can have the same effect as a direct injunction of ongoing state proceedings.”) (citing
Carden, 626 F.2d at 83).

40

41

Page, 932 F.3d at 903.

42

Docket 1 at 7.

43

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

44

Page, 932 F.3d at 904 (quoting Arevalo, 882 F.3d at 766).

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Mr. Polty remains incarcerated at Goose Creek Correctional Center,
for charges initially brought against him in 2016 and 2018.
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. 45 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 special 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. 46
Normally, the Court would only address Mr. Polty’s speedy trial claim
after he fully exhausts his state court remedies. 47 Mr. Polty has responded to the

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.’).”).
45

46

Carden, 626 F.2d at 83–85.

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
47

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Court’s Order to Show Cause asserting that he has been asking to go to trial for
years, including the time before trials were postponed as a result of the
pandemic. 48 If Mr. Polty has done all he could to exhaust his available state court
remedies, the Court may consider his claim. If not, he should do so before filing a
federal petition.
IT IS THEREFORE ORDERED:
1.

The Clerk of Court is directed to serve the § 2241 Petition and

the Response to Order to Show Cause, at Dockets1, 7 and 8, and this Order on:
Tamara E. DeLucia
Office of Criminal Appeals
1031 W. 4th Ave., Suite 200
Anchorage, AK 99501-2064
2.

By agreement between the Court and the Office of Criminal

Appeals, the Office of Criminal Appeals will accept service on behalf of the
Respondent. On or before 14 days from service of this Order, once an attorney

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.”).
Dockets 7, 8; see also Docket 1 at 7 (“I’ve asked for a trial probably hundreds of times
– long before Covid-19, and Alaska refuses to give me a trial.”).
48

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is assigned to this case by the Office of Criminal Appeals, that attorney shall file
a notice of appearance.
3.

The Criminal Justice Act (CJA) authorizes the Court to appoint

an attorney for a habeas petitioner who cannot afford an attorney. On or before
August 20,2021, Mr. Polty must file either (1) a request for court-appointed
counsel on the enclosed Application for Appointment of Counsel and Financial
Affidavit, or (2) a Notice of Intent to Proceed Without Counsel, and to represent
himself.
4.

The Clerk of Court is directed to send the Court’s form PS08,

Motion for Appointment of Counsel; a form CJA 23, Financial Affidavit; and a form
PS18, Notice of Intent to Proceed Without Counsel, to Mr. Polty with this Order.
5.

If Mr. Polty is appointed counsel, that attorney shall review the

record, confer with Mr. Polty, and file any amended § 2241 petition within 30 days
from the date of service of the Order Appointing Counsel. In the alternative, within
this same timeframe, counsel for Mr. Polty will file a notice that no amended
petition will be filed.
6.

The Office of Criminal Appeals shall file a response within 30

days from service of (1) a notice that Mr. Polty will represent himself; (2) a Court
order denying appointment of counsel; (3) a notice filed by Mr. Polty’s counsel
stating that no amended petition will be filed; or (4) an amended petition filed by
Mr. Polty’s counsel. Under Rule 5(b) of the Rules Governing Section 2254 and
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2255 Cases, the response will address the allegations of the petition, and, in
addition, state whether Mr. Polty has used any other available federal remedies
to address the issues presented. The Office of Criminal Appeals must also
supplement the response with appropriate copies of transcripts, affidavits, and a
memorandum of points and authorities material to the issues raised. 49
7.

Counsel for Mr. Polty may file a reply to the response within 14

days of service of the State’s response.
8.

There shall be no further briefing on the petition unless ordered

by the Court.
9.

This Court may hold an evidentiary hearing on its own motion,

or on the motion of a party. Either party may make a motion for an evidentiary
hearing within 14 days after the date the Office of Criminal Appeals files a
response. A motion for an evidentiary hearing must contain a clear and concise
statement of the necessity of the hearing, including why the evidence in the record
is not sufficient. 50
10.

No party may have any ex parte communication (that is,

communication without the presence and/or knowledge and consent of the other
parties) with a United States District Judge or Magistrate Judge of this Court about

49

Rule 5(c), Rules Governing Section 2254 and 2255 Cases.

50

See D. Ak. HCR 8.1.

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the merits of this action. After an attorney is appointed for him or files an entry of
appearance on his behalf, all communication with the Court on behalf of Mr. Polty
must only be made through filings by his lawyer.
Dated at Anchorage, Alaska, this 19th day of July, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge

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