Christian v. Hernandez

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ELIGAH BROKENSPIRIT CHRISTIAN,
Petitioner,
vs.
ARNALDO HERNANDEZ,
Superintendent, Spring Creek
Correctional Center,1
Respondent.
No. 3:20-cv-00295-JKS
ORDER
[Re: Motions at Docket Nos. 3, 4, 7 and
Directing Service and Response]
On November 11, 2020, Eligah Brokenspirit Christian, a state prisoner proceeding pro se,
filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Docket No. 1 (“Petition”).
Christian challenges the judgment of conviction following a guilty plea entered by the Superior
Court for the State of Alaska, Case Number 3AN-15-03511CR. Id. at 1. Christian contends that
his conviction should be overturned because it violates the constitutional prohibition against
Double Jeopardy, his plea counsel rendered ineffective service, and his guilty plea was not
knowingly, intelligently, and voluntarily made. Id. at 5, 7, 8. Christian asserts that the grounds
1 Arnaldo Hernandez, Superintendent, Spring Creek Correctional Center, is
substituted for Clyde Sniffen, State of Alaska Attorney General. F ED . R. CIV . P. 25(c); Rule
2(a), Rules Governing Section 2254 Cases in the United States District Courts; Stanley v. Cal.
Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
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for relief raised in his Petition have been brought in the Alaska state courts, including the Alaska
Supreme Court, as required by § 2254(b). Id. at 5, 7, 9.
The records of the Alaska state courts2 reflect that Christian pleaded guilty to one count
of scheme to defraud in Alaska Superior Court Case No. 3AN-15-03511CR (the “Anchorage
conviction”) on July 24, 2015. See https://records.courts.alaska.gov (Case No. 3AN-15-
03511CR). Roughly four months later, Christian also pleaded guilty to one count of scheme to
defraud in Superior Court Case No. 3PA-15-01170CR (the “Palmer conviction”). See
https://records.courts.alaska.gov (Case No. 3PA-15-01170CR). The records indicate that
Christian did not appeal those convictions, but filed timely applications for post-conviction
relief. See https://records.courts.alaska.gov (Case Nos. 3AN-15-09357CI, 3PA-16-01034CI). At
issue in the instant Petition is the denial of his application for post-conviction relief with respect
to the Anchorage conviction. The records of the state court show that the Alaska Court of
Appeals affirmed the superior court’s dismissal of Christian’s application for post-conviction
relief in an unpublished summary disposition entered on August 19, 2020. See
https://appellate-records. courts.alaska.gov (Case No. A13184). The records further show that
the Alaska Supreme Court denied Christian’s petition for hearing on October 21, 2020. See
https://appellate-records.courts. alaska.gov (Case No. S17894). The Petition in this Court
followed.
A. 	Screening of Petition
Pursuant to the Rules Governing Section 2254 Cases, the Court must review the 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,
2 The Court takes judicial notice of state court records. Judicial notice is “[a]
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 Service, 399 F.3d 1047, 1051 n. 3 (9th
Cir. 2005) (“Materials from a proceeding in another tribunal are appropriate for judicial notice.”)
(internal quotation marks and citation omitted).
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Rule 4; see 28 U.S.C. § 2243. After a preliminary review, it does not plainly appear from his
Petition that Christian is not entitled to relief.
B. 	Appointment of Counsel
Christian concurrently moves for the appointment of counsel to assist him in these
proceedings. Docket No. 4. In support of his request, Christian states that he is mentally and
physically disabled. Id. at 1; Docket No. 9. While this Court is not unmindful of the plight of
unrepresented state prisoners in federal habeas proceedings, and in particular the difficulties
Christian faces with respect to his documented disabilities, there is no constitutional right to
counsel in federal habeas proceedings. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)
(citing Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)). Appointment of counsel is not
required in a habeas corpus proceeding in the absence of an order granting discovery or an
evidentiary hearing. See Rules Governing Section 2254 Cases in the U.S. District Courts, Rule
6(a), 8(c). This Court may under the Criminal Justice Act appoint counsel in this case if it
determines that the interests of justice so require. 28 U.S.C. § 2254(h); 18 U.S.C.
§ 3006A(a)(2)(B); see Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (“In deciding
whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood
of success on the merits as well as the ability of the petitioner to articulate his claims pro se in
light of the complexity of the legal issues involved.”).
At this time, Christian’s request for counsel is premature. The Court cannot determine
whether appointment of counsel is warranted in this case until it is able to thoroughly review the
briefing in its entirety. The Court will therefore DENY, WITHOUT PREJUDICE TO RENEW,
Christian’s motion for appointment of counsel. Because it is denied without prejudice, Christian
may later file a new request. The Court notes, however, that it will not reconsider a motion to
appoint counsel until it has thoroughly reviewed Respondent’s answer to the Petition.
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C. 	Leave to Proceed In Forma Pauperis
Christian also requests leave to proceed in forma pauperis (“IFP”) in these proceedings.
Docket No. 3. A person may be granted permission to proceed IFP if the person “submits an
affidavit that includes a statement of all assets such [person] possesses [and] that the person is
unable to pay such fees or give security therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C.
§ 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that this
provision applies to all actions filed in forma pauperis, not just prisoner actions). “‘[T]he
supporting affidavits [must] state the facts as to [the] affiant’s poverty with some particularity,
definiteness and certainty.’” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
(quoting Jefferson v. United States, 277 F.2d 823, 725 (9th Cir. 1960)).
In support of his application, Christian submits a declaration of his assets and a certified
copy of his prison account statement for the last six months. Docket Nos. 3-4, 5. Based on this
documentation, Christian is within the parameters necessary to grant an IFP application due to
lack of assets. Accordingly, his motion to proceed without the payment of a filing fee is
GRANTED.
D. 	Motion for Jurisdiction of Habeas Corpus 28 U.S.C. § 2254
At Docket No. 7, Christian moves for “jurisdiction of habeas corpus 28 U.S.C. 2254.” In
support of his motion, Christian states that he believes this Court has jurisdiction over his case
under 28 U.S.C. § 2254. Christian is correct that an individual, like himself, who is in custody
pursuant to a judgment of a state court may file in federal district court an application for a writ
of habeas corpus alleging that he or she is in custody in violation of the U.S. Constitution. See
28 U.S.C. § 2254(a). Accordingly, Christian is not required to obtain this Court’s jurisdiction,
and the Court recognizes its jurisdiction and will order the Respondent to answer his Petition.
The Motion at Docket No. 7 shall therefore be DENIED AS MOOT.
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IT IS THEREFORE ORDERED:
1. 	The motion at Docket No. 4 for appointment of counsel pursuant to 18 U.S.C. §
3006A is DENIED WITHOUT PREJUDICE.
2. 	The motion at Docket No. 3 for leave to proceed in forma pauperis is
GRANTED.
3. 	The motion at Docket No. 7 for jurisdiction is DENIED AS MOOT.
4. 	The Clerk of the Court is directed to serve this order and the Petition at Docket
Nos. 1 through 1-6 on:
Tamara DeLucia
Office of Criminal Appeals
1031 W. 4th Ave, Suite 200
Anchorage, Alaska 99501
5. 	By agreement between the Court and the Office of Criminal Appeals, the Office
of Criminal Appeals will accept service on behalf of the Respondent.3 Once an
attorney is assigned to this case by the Office of Criminal Appeals, that
attorney shall immediately—and in no more than fourteen (14) days from
the date of this order—file a notice of appearance.
6. 	Respondent shall file and serve either an answer or a motion in response to the
Petition within sixty (60) days from the date of this Order. See Rule 4, Rules
Governing § 2254 Cases. The Court also notes its preference that procedural
issues be addressed concurrently with the merits of the habeas petition. Any
response shall be accompanied by any and all transcripts or other documents
relevant to the determination of the issues presented in the application. See Rules
4 and 5, Rules Governing § 2254 Cases. This should include a copy of:
(1) any brief that the Petitioner submitted in an appellate court contesting
the conviction or sentence, or contesting an adverse judgment or order in
3 In this regard, Respondent has waived Federal Habeas Corpus Rule 4 regarding
service.
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a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate court relating
to the conviction or sentence; and
(3) the opinions and dispositive orders of the state appellate courts relative
to the conviction or sentence.
7. 	Christian’s reply, if any, shall be filed and served within thirty (30) days of
service of an answer.
Dated at Anchorage, Alaska this 30th day of November, 2020.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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