Lockuk v. Commissioner, Department of Corrections

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JESSE P. LOCKUK,
Petitioner,
vs.
EARL HOUSER, Superintendent,
Goose Creek Correctional Center,
Respondent.
Case No. 3:18-cv-00261-JKS
ORDER OF DISMISSAL
On 	October 	30, 	2018, 	Jesse 	P. 	Lockuk, 	an 	Alaska 	state 	prisoner
proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254, challenging his conviction upon his no contest plea in the Superior Court
of the State of Alaska, Case Number 3DI-02-00500CR.1 	Lockuk asserts that the
judgment in that case, issued on May 31, 2005, is unenforceable by law, and that
his plea agreement was breached.2
After reviewing the Petition and the state court dockets,3 this Court issued
an 	Order 	to 	Show 	Cause4 	on 	October 	30, 	2018, 	directing 	Parks 	to 	file 	a
1 Docket 1.
2 Docket 1 at 5-8.
3 The Court takes judicial notice of the 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).
4 Docket 3 (“OSC”).
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Response addressing the facial untimeliness of the Petition. The OSC explained
why the Petition was facially untimely, why the statutory tolling available did not
render it timely, and why the equitable tolling doctrine did not appear to be
applicable. 	The OSC expressly directed Lockuk to explain how the Petition is
timely (if he so contends) and to provide any available competent evidence to
establish such timeliness. 	Lockuk responded to the OSC on December 12,
2018.5
The Court has considered the Petition, the record, and Lockuk’s Response
and must conclude that dismissal of this action with prejudice is warranted due to
untimeliness. 	The Court takes judicial notice6 that Lockuk filed an initial § 2254
petition in this Court on August 8, 2012, in Case No. 3:12-cv-00163-SLG-DMS.
That case was dismissed without prejudice on March 18, 2014, for failure to fully
exhaust his federal claims in state court.7 	Lockuk states that he filed another
5 Docket 4.
6 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).
7 Case No. 3:12-cv-00163-SLG-DMS, Dockets 44, 45. Although the limitations period
tolls while a properly filed request for collateral review is pending in state court, 28
U.S.C. § 2244(d)(2), it does not toll for the time an application is pending in federal
court, Duncan v. Walker, 533 U.S. 167 (2001) (stating that there is no tolling under
§ 2244(d)(2) for the time during which a federal petition that was dismissed without
prejudice was pending); see also Fail v. Hubbard, 315 F.3d 1059 (9th Cir. 2001) (one-
year habeas statute of limitations was not equitably tolled during period between date of
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post-conviction petition in state court in 2015, which was dismissed in 2016.8
There is no public record of any appellate proceedings in the Alaska state courts
related to that post-conviction petition. 	It does not appear that Lockuk further
litigated his claims until April 2018, when he filed in this Court a Petition for a Writ
of Habeas Corpus Under 28 U.S.C. § 2241, Case No. 3:18-cv-00097-RRB. 	On
October 18, 2018, that case was dismissed without prejudice to timely filing a
habeas petition under § 2254. 	In that order, the Court warned Lockuk that “[t]he
one-year statute of limitations will likely prevent the Court from reaching the
merits of a habeas petition filed by Mr. Lockuk.”9 	In his response to the OSC
issued in this case, Lockuk does not assert facts that would establish that
statutory or equitable tolling is warranted. 	Rather, Lockuk’s response merely
reasserts his contention that the 2005 judgment against him is invalid.10
IT IS THEREFORE ORDERED:
1. 	The Petition is DISMISSED WITH PREJUDICE for untimeliness.
2. 	All pending motions are DENIED as moot.
the filing of an entirely unexhausted petition and date of its dismissal by district court
without prejudice after statute of limitations had run).
8 Docket 1 at 6, Jesse Patrick Lockuk v. State of Alaska, 3DI-15-00058CI; see also
Docket 1-1 at 2-9.
9 Case No. 3:18-cv-00097-RRB, Docket 5.
10 Docket 4 at 2-3.
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3. 	A Certificate of Appealability shall not issue.11
4. 	The Clerk of Court is directed to issue a judgment accordingly.
Dated at Anchorage, Alaska this 7th day of January, 2019.
s/ James K. Singleton, Jr.
Senior United States District Judge
11 See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To
obtain a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.’” (quoting Miller-El v. Cockrell, 537
U.S. 322, 327 (2003))).
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