Anderson v. Valley et al
Filing
30
MEMORANDUM DECISION AND ORDER - Petitioners Motion for Evidentiary Hearing (Dkt. 25 ) is DENIED. Petitioners Motion to Stay Supreme Court Appeal (Dkt. 27 ) is DENIED. Respondents Motion for Summary Dismissal Without Prejudice (Dkt. 19 ) is GRAN TED, and this action is DISMISSED without prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); Habeas Rule 11. Signed by US Magistrate Judge Debora K Grasham. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DEVON JOSEPH ANDERSON,
Case No. 1:23-cv-00500-DKG
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
RUSSELL ROSS1 and RAUL
LABRADOR,
Respondents.
INTRODUCTION
Pending before the Court is a Second Amended Petition for Writ of Habeas
Corpus filed by Idaho state prisoner Devon Joseph Anderson. See State’s Lodging A-1 at
5. At the time he filed the initial petition in this case, Petitioner was a pretrial detainee
facing pending state criminal charges. Therefore, the petition was, at that time, properly
filed as a pretrial petition under 28 U.S.C. § 2241. See Braden v. 30th Judicial Circuit
Court of Kentucky, 410 U.S. 484, 489–93 (1973); Carden v. Montana, 626 F.2d 82, 83
(9th Cir. 1980).
However, after Petitioner filed the initial petition, he was convicted of felony
stalking in the first degree, along with a persistent violator sentencing enhancement.
1
Respondent Ross is substituted for his predecessor, Randy Valley, as the warden of the facility in which
Petitioner is incarcerated. See Dkt. 22; Rule 2(a) of the Rules Governing § 2254 Cases; Fed. R. Civ. P.
25(d).
MEMORANDUM DECISION AND ORDER - 1
Petitioner was sentenced to 40 years in prison with 15 years fixed. See State’s Lodging A1 at 5.
Petitioner was later convicted and sentenced, and his direct appeal is now pending.
Unaware that Petitioner had been convicted after the filing of the initial petition,
the Court previously permitted Petitioner to proceed on his Second Amended Petition
under § 2241, because Petitioner’s pretrial double jeopardy claim may present “‘an
exception to the general rule that a federal court must abstain from interfering in ongoing
state criminal proceedings.’” Init. Rev. Order, Dkt. 14, at 2 (quoting Hoyle v. Ada Cnty.
Dist. Ct., No. CV 05-0063-S-EJL, 2006 WL 319216, at *2 (D. Idaho Feb. 10, 2006), aff’d
sub nom. Hoyle v. Ada Cnty., 501 F.3d 1053 (9th Cir. 2007)). Thus, although § 2241
claims generally must be exhausted in state court, Petitioner may have been able to
proceed—at least on his double jeopardy claim—despite the fact that Petitioner had not
yet exhausted his claims.
Petitioner’s conviction on his criminal charges, however, may change the legal
landscape.
Respondent has filed a Motion for Summary Dismissal Without Prejudice. See
Dkt. 19. Respondent first argues that, because Petitioner is now in custody pursuant to a
state court judgment, the Second Amended Petition should be construed under 28 U.S.C.
§ 2254—not § 2241. Respondent then asserts that Petitioner has not exhausted his claims
in state court.
MEMORANDUM DECISION AND ORDER - 2
In addition to responding to the Motion for Summary Dismissal, Petitioner has
filed a Motion for Evidentiary Hearing and a Motion to Stay Idaho Supreme Court
Appeal. See Dkts. 25 & 27.
All three pending motions are now ripe for the Court’s consideration. The Court
takes judicial notice of the records from Petitioner’s state court proceedings, which have
been lodged by Respondent. Dkts. 18, 23, & 26; see Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. See Dkt. 8. Having carefully reviewed the record, including
the state court record, the Court finds that oral argument is unnecessary. See D. Idaho L.
Civ. R. 7.1(d).
Accordingly, and for the reasons explained below, the Court will enter the
following Order (1) denying Petitioner’s Motion for Evidentiary Hearing and Motion to
Stay Supreme Court Appeal, and (2) granting Respondents’ Motion for Summary
Dismissal Without Prejudice. After Petitioner exhausts his claims in state court, he may
file a new federal habeas petition.
DISCUSSION
1.
Because Petitioner Is Now in Custody Pursuant to a State Court Judgment,
the Court Will Consider the Second Amended Petition under 28 U.S.C.
§ 2254
Petitioner was convicted and sentenced—thus becoming a person “in custody
pursuant to the judgment of a State court,” 28 U.S.C. § 2254(a)—after he filed his initial
MEMORANDUM DECISION AND ORDER - 3
habeas petition in this matter. It appears that the Ninth Circuit has not addressed whether
§ 2241 or § 2254 is the appropriate statute under which to consider a habeas petition
when the petitioner was convicted and sentenced during the pendency of the federal case.
The circuit has held that, at least where a petitioner has not been subjected to a
final state court judgment throughout the entire federal habeas proceeding, a district court
should consider a federal petition as challenging ongoing charges under § 2241. Harrison
v. Gillespie, 640 F.3d 888, 897 (9th Cir. 2011) (en banc). In Harrison, the petitioner was
“in custody under one sentence” but was attacking “a sentence which [the petitioner] had
not yet begun to serve.” Id. at 896. The Court explained that § 2254 did not apply because
that statute “applies only to individuals in ‘custody pursuant to the judgment of a State
court,’ and it is undisputed that the [state] courts have not yet entered judgment against”
the petitioner on the sentence Petitioner had not yet begun to serve. Id. at 897. Thus, if a
petitioner has not yet been convicted under a state court judgment, the petition is
appropriately considered under § 2241. See Stow v. Murashige, 389 F.3d 880, 882 (9th
Cir. 2004) (considering a petition under § 2241, not § 2254, where the petitioner
challenged an “impending retrial” on double jeopardy grounds).
But, whether a petitioner who became subjected to a final state court judgment
during his federal habeas proceeding must proceed under § 2241 or § 2254 is not entirely
clear in the Ninth Circuit. Several circuits have addressed the issue and concluded that, in
such a circumstance, the petition should be considered under § 2254. See, e.g.,
Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008); Hartfield v.
Osborne, 808 F.3d 1066, 1072 (5th Cir. 2015).
MEMORANDUM DECISION AND ORDER - 4
In Yellowbear, the Tenth Circuit acknowledged that, at the time the petitioner filed
his habeas petition, he, like Petitioner here, was challenging ongoing state criminal
charges. 525 F.3d at 923. However, after the petition was filed, he was convicted in a
state court judgment. Thus, “[i]n its current posture,” the petitioner’s claim was “an
attack on his conviction and sentence” under § 2254. Id. at 924. Because construing the
petition under § 2254 had potential consequences under the Antiterrorism and Effective
Death Penalty Act, the court remanded for further proceedings so the district court could
notify the petitioner of the § 2254 recharacterization. Id. at 924–25.
The Fifth Circuit in Hartfield followed the Tenth Circuit’s approach in
Yellowbear. The Hartfield petitioner “initially filed a pretrial federal habeas petition
under § 2241.” 808 F.3d at 1072. However, “intervening events”—the petitioner’s
conviction—led to the petitioner’s “being in custody pursuant to a state court judgment.”
Id. Thus, the petitioner’s habeas claims were then “properly characterized as an attack on
the ‘validity of his conviction and sentence’” and had to be considered under § 2254. Id.;
see also Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir. 2003) (considering petition under
§ 2254 where petitioner initially challenged pending charge but then pleaded guilty,
which “subjected him to a state court judgment”).
District courts in the Ninth Circuit have also held that, when a petitioner is
convicted and sentenced during the pendency of a federal habeas proceeding, the court
should recharacterize the petition and consider it under § 2254, not § 2241. For example,
in Yahn v. King, the U.S. District Court for the Northern District of California adopted
the Yellowbear analysis and concluded that, in the “unusual situation” where a petitioner
MEMORANDUM DECISION AND ORDER - 5
is convicted and sentenced during the pendency of a federal habeas corpus case initially
filed under § 2241, the petition should be “recharacterized” as a § 2254 petition. Yahn v.
King, No. C-13-855 EMC (PR), 2015 WL 1814313, at *1–2 (N.D. Cal. Apr. 21, 2015)
(unpublished).
In Stanley v. Baca, 137 F. Supp. 3d 1192 (C.D. Cal. 2015), the U.S. District Court
for the Central District of California addressed a situation must like Petitioner’s here—a
double jeopardy claim was initially asserted in a pretrial § 2241 petition, but during the
pendency of the federal proceedings, the petitioner was convicted in state court. The
court noted that “the sole issue before the Court now on federal habeas review is whether
Petitioner’s conviction violates the Double Jeopardy Clause.” Id. at 1200. As such, “that
issue may be considered and resolved only under Section 2254.” See also id. (“[A]
pretrial detainee’s change in status to convicted state prisoner during the pendency of his
Section 2241 case will require that his habeas petition be considered under Section 2254
rather than Section 2241.”).
The Court finds these cases persuasive. Petitioner was not in custody pursuant to a
state court judgment when he filed the initial petition. Now he is. Therefore, the sole a
question is whether Petitioner’s conviction violates the Double Jeopardy Clause—or
other constitutional provisions cited by Petitioner—and the appropriate statute under
which to consider the habeas petition is 28 U.S.C. § 2254.
The Court now turns to consider the pending motions.
MEMORANDUM DECISION AND ORDER - 6
2.
Petitioner’s Motion for Evidentiary Hearing
Petitioner seeks an evidentiary hearing. Dkt. 25. Petitioner argues a hearing is
required to establish that he has, in fact, exhausted his claims. Id. at 1. Petitioner asserts
he exhausted his claims in a request for a permissive appeal under Idaho Appellate Rule
12(c) and in a petition for writ of mandamus with the Idaho Supreme Court.
An evidentiary hearing is not required to resolve the exhaustion question because
the Court has reviewed the state court records for the proceedings Petitioner references.
See State’s Lodging C-1 through C-4; Dkt. 21-1. Petitioner has not described any other
evidence he believes is necessary to determine the exhaustion status of Petitioner’s
claims.
Petitioner also seeks an evidentiary hearing to establish actual innocence. Though
actual innocence is not an independent constitutional claim, at least in a non-capital case,
it can excuse the procedural default of a petitioner’s habeas claim. Herrera v. Collins,
506 U.S. 390, 400, 404 (1993). However, Respondent is not arguing at this point that
Petitioner’s claims are procedurally defaulted. Thus, an actual innocence inquiry would
be premature.
In any event, Petitioner has not set forth any new evidence suggesting that he is
actually innocent. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (stating that, to excuse
default based on actual innocence, a petitioner must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
MEMORANDUM DECISION AND ORDER - 7
presented at trial”). Thus, the Court will deny Petitioner’s Motion for an Evidentiary
Hearing.
3.
Respondents’ Motion for Summary Dismissal Without Prejudice
The Rules Governing Section 2254 Cases (“Habeas Rules”) authorize the Court to
summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the
face of the petition and any attached exhibits,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may
file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599,
602 (9th Cir. 1989).
Respondent argues that Petitioner’s claims are unexhausted. For the reasons that
follow, the Court agrees.
A.
The Exhaustion Requirement
“[W]hen a prisoner alleges that his continued confinement for a state court
conviction violates federal law, the state courts should have the first opportunity to
review this claim and provide any necessary relief.” O’Sullivan v. Boerckel, 526 U.S.
838, 844 (1999). Therefore, with very limited exceptions, a habeas petitioner must
exhaust his or her remedies in the state courts before a federal court can grant relief on
constitutional claims. Id. at 842; 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that … the applicant has exhausted the remedies
available in the courts of the State.”). If a state prisoner “has the right under the law of the
MEMORANDUM DECISION AND ORDER - 8
State to raise, by any available procedure, the question presented” in a habeas claim, he
must do so. 28 U.S.C. § 2254(c).
To exhaust habeas claims in state court, a petitioner must invoke one complete
round of the state’s established appellate review process, fairly presenting all
constitutional claims to the state courts so that they have a full and fair opportunity to
correct alleged constitutional errors at each level of appellate review. O’Sullivan, 526
U.S. at 845. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Davis v. Silva, 511 F.3d
1005, 1009 (9th Cir. 2008).
In a state that has the possibility of discretionary review in the highest appellate
court, like Idaho, the petitioner must have fairly presented all of his federal claims at least
in a petition seeking review before that court. O’Sullivan, 526 U.S. at 847. Raising a
claim “for the first and only time in a procedural context in which its merits will not be
considered” except in rare circumstances does not constitute fair presentation. Castille v.
Peoples, 489 U.S. 346, 351 (1989).
If a claim is unexhausted, but there is still an opportunity to exhaust the claim in
the state courts, the dismissal of a petitioner’s habeas case must be without prejudice.
That is, a petitioner may file a new federal habeas corpus petition after his state court
MEMORANDUM DECISION AND ORDER - 9
remedies have been exhausted, though the petitioner must always remain mindful of the
one-year statute of limitations for federal habeas corpus petitions.2
4.
Petitioner’s Claims Are Unexhausted
Petitioner does not dispute that his direct appeal from his criminal conviction
remains pending. Therefore, that appeal cannot have served to exhaust any of Petitioner’s
instant habeas claims.
Petitioner contends, however, that he raised at least some of his claims to the
Idaho Supreme Court in a “permissive appeal” and in a request for a writ of mandamus.
Dkt. 21 at 2; Dkt. 21-1. He contends that these proceedings exhausted those claims.
Petitioner’s request for a permissive interlocutory appeal was brought pursuant to
Idaho Appellate Rule 12(c). State’s Lodging C-1. The Idaho Supreme Court grants a
request for such an appeal “only in the most exceptional cases,” that is, where “there is a
controlling question of law and whether an immediate appeal would advance the orderly
resolution of the litigation.” Verska v. Saint Alphonsus Reg’l Med. Ctr., 265 P.3d 502,
505 (Idaho 2011) (quotation omitted). Factors considered in the exceptional
circumstances inquiry include whether “substantial legal issues of great public interest or
legal questions of first impression are involved,” the “impact of an immediate appeal
upon the parties, the effect of the delay of the proceedings in the district court pending
2
The one-year federal statute of limitations begins to run when the state court judgment is final, and it
continues to run except during the time that a properly filed application for post-conviction or other
collateral relief is pending in the state courts. 28 U.S.C. § 2244(d)(2).
MEMORANDUM DECISION AND ORDER - 10
the appeal, the likelihood or possibility of a second appeal after judgment is finally
entered by the district court, and the case workload of the appellate courts.” Id.
In Petitioner’s case, the Idaho Supreme Court denied his request for an
interlocutory appeal under Idaho Appellate Rule 12(c). State’s Lodging C-4. Because the
Idaho Supreme Court “will not … consider[]” a permissive interlocutory appeal except in
the rarest of circumstances, Castille, 489 U.S. at 351, Petitioner’s request for an
interlocutory appeal did not serve to fairly present his habeas claims.
Petitioner also claims he exhausted his claims in a petition for writ of mandamus
that he filed with the Idaho Supreme Court. See Dkt. 21-1 at 2–4. But “[o]nly rare and
special circumstances warrant [the] extraordinary remedy” of mandamus under Idaho
law. The Associated Press v. Second Jud. Dist., 529 P.3d 1259, 1269 (Idaho 2023).
Consistent with that standard, the Idaho Supreme Court denied Petitioner’s request for a
writ of mandamus. Dkt. 21-1 at 5. Because Petitioner’s was not a case where
extraordinary circumstances justified consideration of a petition for writ of mandamus,
that petition could not have served to exhaust any of his habeas claims. See Castille, 489
U.S. at 351.
Petitioner does not cite any Idaho legal principle that would prohibit him from
reasserting, on direct appeal or other appropriate proceedings, any claims he presented in
his request for an interlocutory appeal under Idaho Appellate Rule 12(c) or in his petition
for writ of mandamus. Though Petitioner worries that raising his claims on direct
appeal—which is where he is required to raise them under Idaho law—will “frustrat[e]”
MEMORANDUM DECISION AND ORDER - 11
the Idaho Supreme Court, see Dkt. 25 at 1, the Court has found no basis for this belief in
Idaho law.
Because Petitioner has not exhausted his habeas claims as required by 28 U.S.C.
§ 2254(b)(1)(A), the Petition is subject to dismissal.
5.
Petitioner’s Motion to Stay Supreme Court Appeal
Petitioner asks this Court to intervene in his state court criminal direct appeal and
to stay that proceeding. See Dkt. 27. Petitioner’s basis for this request is that the
prosecutor allegedly has “conflicting loyalties.” Id. at 2. Petitioner also complains about
the trial judge’s jury instructions. Id. at 3.
A “judge of the United States before whom a habeas corpus proceeding is
pending” has the authority and discretion to stay state court proceedings. 28 U.S.C.
§ 2251(a)(1) (emphasis added). Because the Court will enter judgment dismissing the
instant habeas petition without prejudice, the case will no longer be “pending” in this
Court. Therefore, the Court will deny Petitioner’s Motion to Stay his state court
proceedings.
CONCLUSION
For the reasons explained above, Petitioner’s claims are unexhausted. However,
there remains an avenue for him to fairly present his claims—his direct appeal. There
may also be other avenues, such as state post-conviction proceedings. Therefore, the
Court will dismiss this case without prejudice. Once Petitioner exhausts his claims in
state court, he may file a new federal habeas petition under 28 U.S.C. § 2254.
MEMORANDUM DECISION AND ORDER - 12
ORDER
IT IS ORDERED:
1.
Petitioner’s Motion for Evidentiary Hearing (Dkt. 25) is DENIED.
2.
Petitioner’s Motion to Stay Supreme Court Appeal (Dkt. 27) is DENIED.
3.
Respondent’s Motion for Summary Dismissal Without Prejudice (Dkt. 19)
is GRANTED, and this action is DISMISSED without prejudice.
4.
The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.
DATED: October 25, 2024
_________________________
Honorable Debora K. Grasham
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?