Page v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EDWARD JOSEPH PAGE,
Petitioner,
vs.
EARL HOUSER, Superintendent, Goose
Creek Correctional Center,1
Respondent.
No. 3:20-cv-00169-JKS
MEMORANDUM DECISION
Edward Joseph Page, a state prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Page is in the custody of the
Alaska Department of Corrections (“DOC”) and incarcerated at Goose Creek Correctional
Center. Respondent has answered, and Page has not replied.
1 Earl Houser, Superintendent, Goose Creek Correctional Center, is substituted for
the State of Alaska. FED . 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).
-1-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 1 of 9

I. BACKGROUND/PRIOR PROCEEDINGS
On March 8, 1995, Page was convicted of burglary, robbery, two counts of first-degree
sexual assault, and kidnapping in connection with an April 1991 offense. The Alaska Superior
Court sentenced Page to an aggregate term of 99 years’ imprisonment. Through counsel, Page
appealed his conviction, arguing that the superior court erred in refusing to dismiss his
indictment, in denying him discovery of certain of the victim’s medical records, and in allowing
a prosecution witness to give expert testimony beyond the scope of his expertise. Page also
appealed his sentence on the ground that it was excessive. The Alaska Court of Appeal
unanimously affirmed Page’s convictions but reversed the sentence and remanded for
resentencing in a reasoned, unpublished opinion issued on February 5, 1997. Page v. State, Nos.
3551, A-5754, 1997 WL 45119, at *13 (Alaska Ct. App. Feb. 5, 1997).
On remand, Judge Andrews of the Alaska Superior Court issued the following sentence
in 1998:
Count I 	First-degree Burglary 	10 years
Count II 	First-degree Robbery 	15 years
Count III 	First-degree Sexual Assault 	25 years
Count IV 	First-degree Sexual Assault 	25 years
Count VI 	Kidnapping 	40 years
The court orally ruled that:
Counts I and II are concurrent with each other and consecutive to all other counts.
Count III is consecutive to all other counts. Count IV runs ten years concurrent with
Count III and fifteen years consecutive to Count III and all other counts. Count VI runs
thirty years concurrent and ten years consecutive to all other counts.
The court calculated a composite sentence of sixty-five (65) years. Again proceeding
through counsel, Page appealed his subsequent sentence on the ground that it was harsh and
excessive. The Alaska Court of Appeal unanimously affirmed the sentence in a reasoned,
unpublished opinion issued on April 7, 1999. Page v. State, No. A-5754, 1999 WL 189587, at
*2 (Alaska Ct. App. Apr. 7, 1999).
-2-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 2 of 9

On January 29, 2014, a different judge of the superior court, Judge Saxby, granted a
motion to clarify Page’s sentence for the purpose of calculating his parole eligibility date. Judge
Saxby recognized the following ambiguities in Judge Andrews’s order: Count III was
“consecutive to all other counts” but Count IV and Count VI were also partially concurrent with
“all other counts;” similarly, Counts I and II were “consecutive to all other counts” but Count VI
was “thirty years concurrent to all other counts.” Judge Saxby resolved these ambiguities by
clarifying that Count III was partially concurrent with both Count IV and VI, and Counts I and II
were partially concurrent to Count VI. Judge Saxby noted that these clarifications resulted in the
same calculation of a 65-year composite sentence.
Page filed a motion for post-conviction relief on November 3, 2015, on the grounds that
Judge Saxby’s January 29, 2014, order was illegal and that DOC’s accounting of his sentence
was erroneous. Because Page believed that his correct maximum expiration date had already
passed and he wanted his case resolved quickly, Page withdrew his request for counsel and
proceeded on his pro se application. Respondent moved for summary judgment, arguing that
Judge Saxby’s order was proper because it resulted in a composite sentence equal to that in the
initial re-sentencing order. On March 1, 2017, Judge Saxby dismissed Page’s application after
finding that Page presented no evidence that DOC calculated his sentence incorrectly or that he
was being held in custody illegally.
Through counsel, Page appealed the dismissal of post-conviction relief. According to
Page, the sentencing judge’s order on remand was ambiguous because Page was sentenced to a
contradictory combination of concurrent and consecutive terms for his convictions on five
separate counts and, the ambiguity should be construed in Page’s favor. Page requested that his
sentence be recalculated to reflect that thirty years of his sentence on Count III runs concurrent
to all other counts, which would result in a composite sentence of forty (40) years and a
mandatory release date of September 23, 2020. Respondent opposed the appeal, arguing that any
-3-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 3 of 9

ambiguities had been eliminated by Judge Saxby’s clarification order, which was fully consistent
with Judge Andrews’s announced sentencing intent.
On February 5, 2020, the Alaska Court of Appeals unanimously affirmed the superior
court’s denial in a reasoned, unpublished decision. Page v. State, No. A-12825, 2020 WL
567228, at *4 (Alaska Ct. App. Feb. 5, 2020). The appellate court concluded that Page’s
sentencing arguments were waived because Page’s counsel conceded in his motion to
correct his sentence before the Superior Court that his composite sentence was 65 years.
Id. at *2. The court alternatively determined that there was no ambiguity in the sentence; it
explained that “the key to understanding [sentencing judge’s] intention when she resentenced
Page is to read each provision of her sentencing decision in the order that [she] wrote it, and to
construe the provisions in light of [her] announced intention to impose a 65-year composite term
of imprisonment.” Id. at *3. Page petitioned for hearing in the Alaska Supreme Court, which
that court denied without comment on May 18, 2020.
Page then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court dated
July 8, 2020. Docket No. 1 (“Petition”); see 28 U.S.C. § 2244(d)(1),(2). Respondent has
answered the Petition, which is now ripe for adjudication.
II. GROUNDS/CLAIMS
In his pro se Petition before this Court, Page argues that: 1) is sentence is illegal; 2) he
exercised due diligence in litigating and advancing his claims; 3) the Superior Court erred by
“clarifying” the ambiguities in his sentence against him; and 4) he did not waive his arguments
for appeal.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based on an
-4-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 4 of 9

unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2). A state-court decision is contrary to federal law if the state court
applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts
a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but
nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The
term unreasonable is a common term in the legal world. The Supreme Court has cautioned,
however, that the range of reasonable judgments may depend in part on the nature of the relevant
rule argued to be clearly established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) (“[E]valuating whether a rule application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations.”).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
-5-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 5 of 9

court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
Page has not replied to Respondent’s answer. The relevant statute provides that “[t]he
allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a
habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v.
Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence
offered to contradict the allegations of the return, the court must accept those allegations as true.
See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
IV. DISCUSSION
Although Page’s Petition purports to raise four separate claims, those individual claims
collapse to a single claim that the Alaska Court of Appeals unreasonably determined that DOC
did not err in calculating his sentence. According to Page, the Court of Appeals erred in
determining that counsel conceded that the composite sentence was 65 years and in concluding
that the sentence was not ambiguous.
As an initial matter, the Alaska Court of Appeals’ rejection on procedural grounds of
Page’s sentencing error claim also renders the claim procedurally barred from federal habeas
review here. Federal habeas relief is barred if a claim is procedurally defaulted; that is, if a state
denied the claim because a petitioner failed to comply with that state’s requirements for
-6-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 6 of 9

presenting claims. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The U.S. Supreme
Court has held, however, that the state’s grounds for denying the claim “must be independent of
the federal question and adequate to support the judgment.” Id. at 729. A state procedural bar is
“adequate” if it is “clear consistently applied, and well-established at the time of the petitioner’s
purported default.” Calderon v. U.S. Dist. Ct. (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996)
(quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)).
Here, the Court of Appeals concluded that Page waived his post-conviction relief
application claim that his composite sentence is less than 65 years because, after he was re-
sentenced following remand, counsel appealed the sentence only as harsh and excessive and did
not argue that his composite sentence was less than 65 years. Likewise, in his litigation before
Judge Saxby on his motion to correct his sentence, counsel conceded that Page’s composite
sentence was 65 years’ imprisonment. Consequently, the Court of Appeal held that Page
forfeited his claim that his composite sentence was less than 65 years, and the appellate court
found it not preserved for appeal. Page, 2020 WL 567228, at *2.
The forfeiture of an issue, as a matter of state procedure, is an independent and adequate
state law ground for blocking federal habeas corpus review. See Stewart v. Smith, 536 U.S. 856,
861 (2002). The Supreme Court has recognized as legitimate a ruling that failure to preserve an
issue may be treated as forfeiture of that issue. Wainwright v. Sykes, 433 U.S. 72, 85-86 (1977).
Page’s forfeiture of this issue was wholly based on Alaskan state law precedent, and thus was a
matter of state procedure. See Page, 2020 WL 567228, at *3 (citing Tybus v. Holland, 989 P.2d
1281, 1285 (Alaska 1999)).
Furthermore, Page is not entitled to relief on the merits of his claim in any event. Federal
habeas relief is available only for violations of the federal Constitution, laws, and treaties. 28
U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68 (federal habeas corpus relief does not lie for errors
of state law). Matters relating to sentencing are generally governed by state law and do not raise
a federal constitutional question. Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“[W]e
-7-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 7 of 9

have repeatedly held that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”) (citation and internal quotation marks omitted); cf. Lewis
v. Jeffers, 497 U.S. 764, 780 (1990) (claim regarding a state’s application of aggravating
circumstances was not cognizable because it concerned an error of state law). “Absent a
showing of fundamental unfairness, a state court’s misapplication of its own sentencing laws
does not justify federal habeas relief.” Christian v. Rhode, 41 F. 3d 461, 469 (9th Cir. 1994). To
state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner
must show that the error was “so arbitrary or capricious as to constitute an independent due
process” violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992).
Here, the Alaska Court of Appeal rejected Page’s argument that the Superior Court
should have resolved the ambiguities in Judge Andrews’s order in Page’s favor under Twogood
v. State, 196 P.3d 1109, 1114 (Alaska Ct. App. 2008), in which the Court of Appeal held that an
ambiguity in the structure of a defendant’s sentence must be resolved in the manner most
favorable to the defendant. Page’s contention in the instant Petition that the Court of Appeal’s
determination was contrary to Twogood presents only a state-law issue not cognizable on federal
habeas review.
Further, Page has not made that a showing the purported error that occurred in his case is
“so arbitrary or capricious as to constitute and independent due process violation.” Lewis, 497
U.S. at 780. At most, Page has advanced what he believes to be an error of state law. He cannot
convert this purely state law claim into a federal one simply by referencing the Federal due
process clause. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997); Little v. Crawford,
449 F.3d 1075, 1083 n.6 (9th Cir. 2006) (“We cannot treat a mere error of state law, if one
occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state
law would come here as a federal constitutional question.”). While Page may disagree with the
Alaska Court of Appeals’ interpretation and application of state law, such disagreement is not
cognizable in federal habeas and this Court cannot provide him relief.
-8-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 8 of 9

V. CONCLUSION AND ORDER
Page is not entitled to federal habeas relief.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 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,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 17, 2020.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
-9-
Case 3:20-cv-00169-JKS Document 16 Filed 12/17/20 Page 9 of 9