Palmer v. Governor of Alaska et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JAMES DION PALMER,
Petitioner,
vs.
GOVERNOR OF ALASKA, et al.,
Respondents.
No. 3:20-cv-00138-JKS
ORDER OF DISMISSAL WITH
LEAVE TO AMEND
On June 1, 2020, James Dion Palmer filed a pro se Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 (“Petition”). Docket No. 1. Palmer does not list the criminal docket or
case number that he seeks to challenge, but states that he is subject to a judgment of conviction
entered on September 11, 2016, for failure to register as a sex offender. Id. at 1. Although he
lists the Alaska Department of Corrections as his place of confinement, the return address of his
filing is a correctional facility in Virginia, and the Offender Locator database of the Virginia
Department of Corrections, https://vadoc.virginia.gov/general-public/offender- locator/,
Offender I.D.# 1136645, reflects that Palmer is in the custody of the Virginia Department of
Corrections and incarcerated at the Greensville Correctional Center in Jarratt, Virginia, with a
projected release date of July 23, 2020.
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Pursuant to the Rules Governing Section 2254 Cases, the Court must review the instant
Petition to determine whether “it plainly appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254
Cases, Rule 4. If so, “the judge must dismiss the petition.” Id. A petition for habeas corpus
should not be dismissed without leave to amend unless it appears that no tenable claim for relief
can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
The Court has reviewed the Petition and determined that it cannot proceed as filed.
Accordingly, the Court will dismiss the petition with leave to amend to permit Palmer to correct
the noted deficiencies.
A. 	The Petition Does Not Identify an Alaska Conviction
28 U.S.C. § 2254 allows prisoners being held under state court judgments to challenge
those judgments once they have been finalized. 1 28 U.S.C. § 2254(a) (stating that petitions will
be entertained from “a person in custody pursuant to the judgment of a state court . . . .”). For
the Court to exercise jurisdiction in a § 2254 petition, the petitioner must be “in custody” under
the sentence or conviction he is challenging in his petition. See, e.g., Maleng v. Cook, 490 U.S.
488, 492 (1989). Although § 2254 also applies to future custody, a petitioner subject to future
custody must still challenge a state court judgment. Rules 1(a)(2) and 2(b) of the Rules
Governing § 2254 Cases.
As noted above, Palmer is currently in the custody of the Virginia Department of
Corrections. The court takes judicial notice2 that Palmer previously challenged a conviction in
Virginia state court by way of filing a § 2254 petition in the Eastern District of Virginia. See
1 To the extent Palmer intends to raise claims relating to any custody in Alaska that
did not result in a conviction, the Court expresses no opinion as to any other possible bases for
jurisdiction in this Court.
2 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; the court’s power to
accept such a fact.” BLACK ’ S LAW DICTIONARY (10th ed. 2014); see also Headwaters Inc. v.
U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in
another tribunal are appropriate for judicial notice.”); see also FED . R. EVID . 201.
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Palmer v. Johnson, Case No. 1:02-cv-01762-CMH (E.D. Va.). The Fourth Circuit Court of
Appeals affirmed the dismissal of that petition. Palmer v. Johnson, No. 03-7178, 82 F. App’x
854 (4th Cir. 2003). A review of the Virginia Judiciary’s Online Case Information System 2.0,
https://eapps.courts.state.va.us/ocis/search, shows that Palmer has been the subject of numerous
charges in the Norfolk Circuit Court in Virginia for failure to register as a sex offender,
including during the time period referenced in the instant Petition. While it is theoretically
possible that Palmer is subject to future custody under an Alaska conviction once his current
custody in Virginia expires, the record is devoid of any mention of an Alaska conviction or,
indeed, any direct connection to Alaska at all. To the extent Palmer attempts to use this forum to
challenge his Virginia custody, a § 2254 must be brought in the state with actual custody over
the petitioner. Marks v. Rees, 715 F.2d 372, 374 (7th Cir. 1983); see Chatman-Bey v.
Thornburgh, 864 F.2d 804, 810 (D.C. Cir. 1988) (en banc) (holding the same in the context of
habeas petitions brought by federal prisoners under 28 U.S.C. § 2241). For Palmer to proceed on
a § 2254 petition in this Court, he must therefore identify a conviction in the Alaska state courts
for which he is subject to future custody.
B. 	The Petition Does Not Allege Total Exhaustion
This Court may not consider claims that have not been fairly presented to the State
courts. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). Specifically, pursuant to 28
U.S.C. § 2254(b)(1)(A) and (B), before a court may grant a Writ of Habeas Corpus on behalf of a
person in custody pursuant to the judgment of a State court, the petitioner must either (A)
exhaust “the remedies available in the courts of the State” or (B) show “there is an absence of
available State corrective process; or circumstances exist that render such process ineffective to
protect the rights of the applicant.” To satisfy the “fairly present” requirement, the petitioner
actually 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
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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.
Because the Court cannot determine whether Palmer is even subject to a judgment of
conviction in the Alaska state courts, it also cannot determine whether Palmer fully exhausted in
the state courts any claims relating to a valid Alaska judgment. The databases of the Alaska
State Judiciary do not list any proceedings involving Palmer in the Alaska state courts. See
http://courts.alaska.gov/main/search-cases.htm. For Palmer to proceed on a § 2254 petition in
this Court, he must further show that he fully exhausted in the Alaska state courts any claims
challenging an Alaska conviction.
C. 	The Petition Does Not Name the Proper Respondents
Rule 2(b) of the Rules Governing Section 2254 Cases in the U.S. District Courts provides
that a petitioner challenging a state court conviction for which he may be subject to future
custody should “name as respondents both the officer who has current custody and the attorney
general of the state where the judgment was entered.” For Palmer to proceed on a § 2254
petition in this Court challenging an Alaska state conviction, he must name the Alaska Attorney
General and the warden of the Greensville Correctional Center.
D. 	The Grounds in the Petition Lack Specificity
Palmer raises the following grounds for relief: “Due Process 5 th Amendment” (Ground
1); “Due Process and Equal Protection Clause 14th Amendment” (Ground 2); “Right to Jury: 7th
Amendment” (Ground 3); and “No Excessive Bail/No Bail: 8 th Amendment” (Ground 4). For
each ground for relief, Palmer summarily states in the supporting facts sections “No Trial: Illegal
Detainment 9/11 11/9 Suspect” or restates the ground for relief listed in the heading.
Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition must
“specify all grounds for relief available to the petitioner [and] state the facts supporting each
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ground.” Here, Palmer fails to articulate his claims or cite facts that would support an inference
that his federal constitutional rights may have been violated. This Court would have to engage
in a tenuous analysis in order to attempt to identify the thrust of his claims. Although pro se
habeas filings must be construed liberally, Erickson, 551 U.S. at 94, such leniency should not
place on the reviewing court the entire onus of ferreting out grounds for relief, and “[c]onclusory
allegations which are not supported by a statement of specific facts do not warrant habeas relief,”
James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see also Greenway v. Schriro, 653 F.3d 790, 804
(9th Cir. 2011) (“[C]ursory and vague claim[s] cannot support habeas relief.”); Jones v. Gomez,
66 F.3d 199, 204-205 (9th Cir. 1995). Facts must be stated in the petition with sufficient detail
to enable the Court to determine, from the face of the petition, whether further habeas corpus
review is warranted. Moreover, the allegations should be sufficiently specific to permit the
respondent to assert appropriate objections and defenses. C.f., Blackledge v. Allison, 431 U.S.
63, 75 n.7 (1977) (“the petition is expected to state facts that point to a real possibility of
constitutional error”) (citation omitted) (internal quotation marks omitted).
E. 	Leave to Amend
Palmer shall have thirty (30) days from the date of this Order to file a First Amended
Petition that: 1) identifies a judgment of conviction in the Alaska state courts; 2) names the
proper Respondents; and 3) asserts in sufficient detail only those claims that have been fully
exhausted in the Alaska state courts through presentation all the way to the Alaska Supreme
Court. The First Amended Petition shall indicate for each claim when it was presented to the
Alaska Supreme Court and must be complete in itself without reference to the original Petition.
If Palmer chooses to file an amended petition, he should be mindful of the pleading requirements
on federal habeas review, as discussed in this Order.
F. 	Motion for Leave to Proceed In Forma Pauperis
At Docket No. 2, Palmer additionally requests that this Court waive the filing fee to
proceed with this case. Parties filing actions are required to pay a filing fee. See Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999); 28 U.S.C. § 1913. An action may proceed despite
failure to pay the filing fee if the party is granted an in forma pauperis (“IFP”) status.
Rodriguez, 169 F.3d at 1177. The Court may grant IFP status to any prisoner who demonstrates
that he is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a). Rule 3(a)(2) of
the Rules Governing Section 2254 Proceedings in the U.S. District Courts requires that inmates
moving for IFP status file with their application “a certificate from the warden or other
appropriate officer of the place of confinement showing the amount of money or securities that
the petitioner has in any account in the institution.” Palmer did not file with his IFP application
such statement from the Greensville Correctional Center. Accordingly, Palmer’s motion at
Docket No. 2 will be denied without prejudice to re-file with the proper documentation in the
event he files an Amended Petition that conforms with the requirements laid out in this Order.
IT IS THEREFORE ORDERED:
1. 	The Petition for Writ of Habeas Corpus at Docket No. 1 is DISMISSED with
leave to amend.
2. 	The Clerk of Court shall send Palmer the form for a Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody. On the enclosed
form only, on or before July 20, 2020, Palmer may file a First Amended
Petition that complies with the requirements discussed in this Order. Palmer
shall name the proper Respondents, clearly indicate on the form the applicable
Alaska judgment he challenges, and provide for each claim the proceeding in
which the claim was presented to the Alaska Supreme Court. The claims should
also be raised with sufficient specificity and particularity to satisfy the pleading
requirements laid out in this Order.
3. 	The Motion for Leave to Proceed In Forma Pauperis at Docket No. 2 is DENIED
without prejudice to re-file with proper documentation in the event Palmer files
an Amended Petition that complies with the requirements laid out in this Order.
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4. 	The Clerk of Court is also directed to send Palmer a copy of the District Court’s
handbook, “Representing Yourself in Alaska’s Federal Court,” with this Order.
5. 	Palmer is advised that, if he fails to file an amended petition by July 20, 2020,
his case will be dismissed without further notice for lack of prosecution.
Dated at Anchorage, Alaska this 19th day of June, 2020.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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