Talmadge v. Houser

Filing 33

ORDER re 1 Petition for Writ of Habeas Corpus. Petition is DISMISSED, a Certificate of Appealability shall not issue. Mr. Talmadge may request a Certificate of Appealability from 9CCA. Signed by Judge Sharon L. Gleason on 11/14/23. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRETT ALAN JAMES TALMADGE,
Petitioner,
v.
Case No. 3:22-cv-00202-SLG-KFR

EARL HOUSER,
Respondent.

ORDER RE REPORT AND RECOMMENDATION
Before the Court at Docket 1 is Petitioner Brett Alan James Talmadge’s
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241. This matter was
referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 25 Judge
Reardon issued a Report and Recommendation in which he recommended that
the petition be dismissed. Petitioner responded with objections at Docket 30.
Petitioner also filed an unopposed Motion for Leave to File Oversize Brief at Docket
28, and a Motion for Expedited Consideration of Motion for Leave to File Oversize
Brief at Docket 29 that the Court granted at Docket 31. Respondent Houser filed
a response to the objections at Docket 32.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”1 A court is
1

28 U.S.C. § 636(b)(1).

to “make a de novo determination of those portions of the magistrate judge’s report
or specified proposed findings or recommendations to which objection is made.”2
However, § 636(b)(1) does not “require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”3
The Magistrate Judge recommended that the Court dismiss the Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2241. Mr. Talmadge first objects to the
recommendation that the Court apply Younger abstention so as not to determine
Mr. Talmadge’s claim that the Alaska Supreme Court’s COVID order violated his
federal constitutional rights. But on de novo review, the Court agrees with the
Magistrate Judge’s analysis that Younger abstention should apply. Mr. Talmadge
further asserts that the Magistrate Judge’s reliance on the Ninth Circuit decision of
United States v. Olsen, 21 F.4th 1036 (9th Cir. 2022) is misplaced because that
decision “is wrong”;4 but this Court has no authority to disregard controlling Ninth
Circuit precedent. And the federal Speedy Trial Act is applicable only to federal
criminal cases, not state prosecutions. Accordingly, on de novo review, the Court
rejects these arguments and adopts the Report and Recommendation on this
claim.

2

Id.

Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
3

4

Docket 301 at 5.

Case No. 3:22-cv-00202-SLG-MMS, Talmadge v. Houser
Order re Final Report and Recommendation
Page 2 of 4

Mr. Talmadge also asserts that he was not present at the majority of his
state court proceedings and did not waive his right to appear.

Notably, this

assertion was not included in his September 2022 pro se petition; nor did he raise
this point in his two subsequent pro se memoranda filed in this action.5 And at a
state court hearing at which Mr. Talmadge testified in some detail about a letter
regarding his desire to testify to the grand jury, held in March 8, 2023, at no point
did he indicate that he had been unable to appear at other court proceedings in
that case up to that point.6 Rather, the issue was first raised to this Court after the
Magistrate Judge observed that Mr. Talmadge, by seeking continuances through
counsel and not objecting to the State’s continuance requests, “has permitted [the
state court] matter to take this long.”7 This Court has discretion, but is not required,
to consider evidence presented for the first time in a party’s objections to a
magistrate judge’s recommendation.8 Here, no additional evidence has been
presented; rather, Mr. Talmadge advances a new argument without presenting
any evidence that would have been readily available to him to present (i.e.
transcripts of each of the state court hearings that presumably would have shown

5

See Dockets 1, 6, and 7.

6

See Docket 20-3 (transcript of March 8, 2023 evidentiary hearing).

7

Docket 25 at 14.

8

United States v. Howell, 231 F.3d 615, 622-23 (9th Cir. 2000).

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Order re Final Report and Recommendation
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who was present and not present at each such hearing) but such evidence has not
been provided. Thus, the Court declines to consider this new assertion.
The Court has otherwise reviewed the Final Report and Recommendation
and agrees with its analysis.
Accordingly, the Court adopts the Report and Recommendation in its
entirety, and IT IS ORDERED that the Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2241 is DISMISSED. A Certificate of Appealability shall not issue.9
Mr. Talmadge may request a Certificate of Appealability from the Ninth Circuit
Court of Appeals.10

DATED this 14th day of November, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

28 U.S.C. §2253(c)(2). See also Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of
appealability may be granted only if applicant made a “substantial showing of the denial of a
constitutional right,” i.e., a showing that “reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.”) (internal quotations and citations omitted)).
9

10

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

Case No. 3:22-cv-00202-SLG-MMS, Talmadge v. Houser
Order re Final Report and Recommendation
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