McDermott v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL JOSEPH M CDERMOTT,
Petitioner,
vs.
EARL HOUSER,
Respondent.
Case No. 3:21-cv-00124-RRB
ORDER DENYING RECONSIDERATION OF DISMISSAL
Daniel Joseph McDermott, representing himself from Goose Creek
Correctional Center where he is housed as a pretrial detainee, filed a habeas
petition under 28 U.S.C. § 2241, claiming that the state court is denying his rights
in several ongoing state criminal cases in Palmer and Anchorage.1
Mr. McDermott sought “[d]ismissal of State charges with prejudice and
release from custody or in the alternative … an immediate trial and/or release
from State custody, but … would prefer charges dismissed due to obstruction of
justice by State authorities.”2 	The Court reviewed the Petition, as required by
1 Docket 1 at 2 (listing 3AN-20-09753CR, 3AN-20-10126CR, 3PA-20-00975CR, 3PA-20-
01022CR, 3PA-20-01043CR, 3PA-20-02790CR).
2 Id. at 21 (emphasis in original).
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federal law,3 and dismissed the case based upon the doctrines of abstention and
exhaustion.4
After his case was dismissed, Mr. McDermott filed a “Sworn Affidavit”
“trying to show this Court [that] the ‘full vindication of the petitioner’s pretrial rights’
requires intervention before trial resulting from ‘extraordinary circumstances.’”5 He
asserts that Alaska “Supreme Court order 19576 prevents [him] from exhausting
remedies in state court, because the Supreme Court is the court that caused the
violation of the petitioner’s pretrial detention warranting federal intervention.”7
Mr. McDermott also asserts that he was told by another person incarcerated at
Goose Creek that the “Alaska Department of Corrections has recorded phone
calls,” in violation of the right to attorney-client privilege, although he does not say
3 Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. 	The same procedural rules for 28 U.S.C. § 2254 and § 2255 govern 28 U.S.C.
§ 2241.
4 Docket 4.
5 Docket 6 at 3.
6 Alaska Supreme Court Order No. 1957, effective 3/13/20, was an “Emergency Order re
COVID-19: Relaxation and Suspension of Various Court Rules based on the COVID-19
Pandemic.” 	https://courts.alaska.gov/covid19/docs/sco1957.pdf. 	The Order permitted
liberal participation in telephone or videoconferencing, liberal extensions of time, the
suspension of Rule 45, Alaska’s speedy trial rule, closure of courthouses, etc. Id. at 3–
6.
7 Docket 6 at 4.
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how he knows whether his calls with his lawyer were recorded.8 	Because the
Court liberally construes the filings of self-represented litigants,9 the Court will
construe Mr. McDermott’s filing at Docket 6 as a motion for reconsideration of the
dismissal.
Mr. 	McDermott 	asserts 	that 	the 	following 	“extraordinary
circumstances” warrant federal intervention: 	“1) waiving speedy trial act without
justifiable cause to do so; 2) waiving the Fifth and Sixth Amendment right to Grand
Jury indictments and notice of accusations against the petitioner …; 3) Prison shut
down visitation for an entire year and denied attorneys to visit petitioner; and
4) Department of Corrections recorded phone calls and the department refuses to
produce a list of phone number[s] that were not recorded…. 	And also 5) The
defendant’s right to a fair trial was discharged by state authorities coercing a
8 Id. at 5 (citing United States v. Miller, 2021 U.S. Dist. LEXIS 9232 (D. Alaska 2021)) (“As
part of the discovery in this case—and at issue here—the Government produced
information about at least 19 calls between Mr. Gilmore and Miller that were recorded by
the Alaska Department of Corrections’ (‘DOC’) Securus telephone system. 	Some calls
were listened to by Sgt. Thomas Elmore. Mr. Gilmore’s phone number was not registered
with the Alaska DOC’s Securus telephone system, so the calls were inadvertently
recorded. 	The Government asserts that the prosecution team has not listened to the
phone calls and asked DOC to not listen to the calls, either. Mr. Gilmore was on notice
of the recorded calls in July 2018 and March 2019, before Miller entered into his Plea
Agreement in September 2019.” 	United States v. Miller, Case No. 3:17-cr-00063-TMB-
DMS-2, 2021 WL 189140, at *3, (D. Alaska Jan. 19, 2021) (citations to the docket
omitted)).
9 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)). (In conducting its review of a self-represented
litigant’s pleadings, a court must liberally construe the pleadings and give the petitioner
the benefit of the doubt).
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promise of wellness Court in exchange for signing confidential records ‘release of
information’ (ROI) forms to bail out, then government of Alaska did not give the
RULE 11 agreement they promised.”10 	Mr. McDermott states that, “due to the
overwhelming constitutional and law violations this Court has justification for
dismissal of state charges.”11
Mr. McDermott has “attached a motion [he] filed in state court titled:
DISMISSAL PURSUANT TO SPEEDY TRIAL ACT to [his] affidavit,”12 with a
handwritten note stating that he “filed this under all Palmer Cases … Nos. 3PA-20-
975/1022/1043/2790 	[and] 	Anchorage 	Case 	No. 	3AN-20-9753CR.”13
Mr. McDermott also attached a copy of a request for interview at Goose Creek,
seeking “a computer printout of telephone numbers that were NOT recorded (i.e.
attorney, 	clergy, 	etc.)” 	within 	certain 	time 	frames, 	without 	the 	institution’s
response.14
10 Docket 6 at 6.
11 Id.
12 Id. at 4.
13 Docket 6-1 at 1.
14 Docket 6-2.
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DISCUSSION
As 	previously 	explained, 	federal 	courts 	have 	general 	habeas
jurisdiction under 28 U.S.C. § 2241.15 	The writ “is a vital ‘instrument for the
protection of individual liberty’ against government power.”16 	Under 28 U.S.C.
§ 2241, this Court may grant a writ of habeas corpus to a prisoner “in custody in
violation of the Constitution or laws or treaties of the United States.”17 A petitioner
may properly challenge state pretrial detention under § 2241.18
Mr. McDermott requests “dismissal of state charges.”19 But a speedy
trial claim may be reviewed under § 2241 if a pretrial detainee is seeking to compel
the state to bring him to trial, rather than seeking dismissal of the charges.20 Thus,
although a federal court can order a state court to bring a petitioner to trial, federal
15 See Magana-Pizano v. INS, 200 F.3d 603, 608 & n.4 (9th Cir. 1999).
16 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015) (quoting Boumediene v. Bush,
553 U.S. 723, 743 (2008)).
17 28 U.S.C. § 2241(c)(3).
18 See Stow v. Murashige, 389 F.3d 880, 885–88 (9th Cir. 2004).
19 Docket 6 at 6.
20 See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489–90 (1973)
(“Petitioner does not, however, seek at this time to litigate a federal defense to a criminal
charge, but only to demand enforcement of the Commonwealth’s affirmative constitutional
obligation to bring him promptly to trial.”) (citation omitted).
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courts do not order that state charges be dropped.21 The Court will not, therefore,
grant Mr. McDermott’s request that his state criminal charges be dismissed.
Even had Mr. McDermott requested appropriate relief, however, the
Younger 	abstention 	doctrine 	provides 	that 	federal 	courts 	may 	not 	generally
exercise 	jurisdiction 	when 	doing 	so 	would 	interfere 	with 	state 	judicial
proceedings.22 	The core of Younger abstention is that a federal court cannot
interfere with pending state court criminal proceedings, absent a “showing of bad
faith, harassment, or any other unusual circumstance that would call for equitable
relief.”23 	The 	Supreme 	Court 	has 	“limited 	the 	category 	of 	‘extraordinary
circumstances’ to encompass only ‘cases of proven harassment or prosecutions
undertaken 	by 	state 	officials 	in 	bad 	faith 	without 	hope 	of 	obtaining 	a 	valid
conviction,’ or where ‘irreparable injury can be shown.’”24
A federal court
must abstain under Younger if four requirements are met:
(1) 	a 	state-initiated 	proceeding 	is 	ongoing; 	(2) 	the
proceeding implicates important state interests; (3) the
21 Id.
22 See Younger v. Harris, 401 U.S. 37, 41 (1971).
23 Younger, 401 U.S. at 54.
24 Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980) (quoting Perez v. Ledesma, 401
U.S. 82, 85 (1971)); see also Brown v. Ahern, 676 F.3d 899, 901 (9th Cir. 2012) (“[W]e
specifically rejected in Carden the argument that a claimed violation of the Speedy Trial
Clause … sufficed in and of itself as an independent ‘extraordinary circumstance’
necessitating pre-trial habeas consideration.”) (citing Carden at 84).
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federal 	plaintiff 	is 	not 	barred 	from 	litigating 	federal
constitutional issues in the state proceeding; and (4) the
federal court action would enjoin the proceeding or have
the practical effect of doing so, i.e., would interfere with
the 	state 	proceeding 	in 	a 	way 	that 	Younger
disapproves.25
The state court public records show that Mr. McDermott has an
opportunity to address his claims in his ongoing criminal cases. 	The Court takes
judicial notice26 that he currently is self-represented in most of his state criminal
cases.27 	For example, in State of Alaska v. Daniel Josef McDermott, 3AN-20-
09753CR, in which Mr. McDermott is tenaciously representing himself, he made
44 pro se filings between April 15, 2021, and June 14, 2021, including issues he
brings in his current case, such as: his 5/13/21 “Pretrial Objection to Speedy Trial
25 San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008); see also Page v. King, 932 F.3d 898, 903
(9th Cir. 2019) (“Younger does not “require[ ] a district court to abstain from hearing a
petition for a writ of habeas corpus challenging the conditions of pretrial detention in state
court” where (1) the procedure challenged in the petition is distinct from the underlying
criminal prosecution and the challenge would not interfere with the prosecution, or (2) full
vindication of the petitioner’s pretrial rights requires intervention before trial.”) (citing
Arevalo v. Hennessy, 882 F.3d 763, 764, 766–67 (9th Cir. 2018)).
26 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....” Black’s Law Dictionary
(11th ed. 2019); see also Foster Poultry Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F.
Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts routinely take judicial notice of publicly
available records ... from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n. 2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
27 See https://records.courts.alaska.gov/eaccess/searchresults, reviewing docket notes
in cases listed in footnote 1.
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Act Rights Being Waived by the Court”; his 5/28/21 motion for “Dismissal Pursuant
to 	Speedy 	Trial 	Act” 	(Case 	Motion 	#14); 	his 	6/7/21 	“Pretrial 	Objection 	to
Government 	Closing 	Pre-Trial 	Visitation”; 	his 	6/7/21 	“Pretrial 	Objection 	to
Government Delaying Prosecutions”; his 6/7/21 “Pretrial Objection to Government
Recording Phone Calls”; his 6/11/21 motion “Requesting Phone Records from
Department of Corrections” (Case Motion #21); and his 6/14/21 “Affidavit in
Support of Pretrial Objection to Unreasonable Bail Conditions.”28
The State of Alaska has an important interest in enforcing its criminal
laws, and Mr. McDermott’s criminal cases in the state courts remain ongoing.
Mr. McDermott should continue to bring his claims in the state courts where they
can be addressed in his criminal proceedings.29 	In the state courts, either
28 https://records.courts.alaska.gov/eaccess/searchresults, 3AN-20-09753CR; see also
Alaska v. McDermott, 3PA-20-00975CR (pro se Motion #5, 6/01/21 “Dismissal Pursuant
to Speedy Trial Act”; 6/7/21 “Pretrial Objection to Government Closing Pretrial Visitation”;
6/7/21 “Pretrial Objection to Government Recording Attorney Calls”; 6/7/21 “Pretrial
Objection to Government Delaying Prosecutions”; 6/15/21 Addendum in Support of
Pretrial Objection to Unreasonable Bail Conditions; 6/15/21 “Requesting Phone Record
From Department of Corrections”); Alaska v. McDermott, 3PA-20-01022CR (6/1/21 pro
se Motion #4, for “Dismissal Pursuant to Speedy Trial Act”; 6/7/21 “Pretrial Objection to
Government 	Recording 	Attorney 	Calls”; 	6/7/21 	“Pretrial 	Objection 	to 	Government
Delaying Prosecutions”; 6/15/21 “Pretrial Objection to These Cases Going to Trial After
Being in Wellness Court”; 6/15/21 “Requesting Phone Record from Department of
Corrections”; 6/15/21 “Addendum in Support of Pretrial Objection to Unreasonable Bail
Conditions”); 	Alaska 	v. 	McDermott, 	3PA-20-1043CR 	(6/1/21 	pro 	se 	Motion 	#12,
“Dismissal Pursuant to Speedy Trial Act,” etc.); Alaska v. McDermott, 3PA-20-02790CR
(6/1/21 pro se Motion #5, “Dismissal Pursuant to Speedy Trial Act,” etc.).
29 See Brown, 676 F.3d at 900-901 (A “federal court’s exercise of jurisdiction over
a habeas petition that raises an affirmative defense to state prosecution before trial and
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Mr. McDermott or a defense attorney can discover, for example, whether attorney-
client phone calls were recorded or monitored, and can make arguments for a
speedy trial, if that is in Mr. McDermott’s best interests.
This Court should not interfere with the state trial court’s fact-finding
responsibilities 	and 	legal 	decisions 	in 	Mr. 	McDermott’s 	cases, 	unless 	“full
vindication of the petitioner’s pretrial rights requires intervention before trial.”30
Mr. McDermott, may bring his arguments before the state courts, as shown in
Docket 6-1 and within the state court dockets. 	Thus, this is not a case requiring
federal intervention.
If Mr. McDermott disagrees with an appealable order of the Superior
Court for the State of Alaska, he should raise the claims to the Alaska Court of
Appeals, and if he disagrees with that result, he should raise the claims in a petition
for hearing to the Alaska Supreme Court.31 	This Court should currently abstain
from addressing the claims.
conviction can have the same effect as a direct injunction of ongoing state proceedings.”)
(citing Carden, 626 F.2d at 83).
30 Page, 932 F.3d at 903.
31 See, e.g., Thomas, v. Alaska, Nos. A-13791A-13792, 2021 WL 1535772 (Alaska
App. April 9, 2021).
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Therefore, IT IS HEREBY ORDERED:
1. 	Docket 6, requesting that the Court re-examine its dismissal, which is
construed as a motion for reconsideration, is DENIED.
2. 	The Court, having concluded that Petitioner has not made a substantial
showing of the denial of a constitutional right, DENIES a certificate of
appealability.32 Any further request for a Certificate of Appealability must be
addressed to the Ninth Circuit Court of Appeals.33
32 See 28 U.S.C. 2253(c)(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court …
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
See 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.’); see also Wilson v.
Belleque, 554 F.3d 816, 824 (9th Cir. 2009) (“We conclude that the mere fact that a
habeas petition is filed pursuant to § 2241(c)(3) does not exempt that petition from
§ 2253(c)(1)(A)'s COA requirement.”)
For the reasons set forth in this Order, Mr. McDermott has not made a substantial showing
of the denial of a constitutional right, or that jurists of reason could disagree with the
district court’s resolution, or that he deserves encouragement to proceed further. Banks,
540 U.S. at 705. Mr. McDermott has not been incarcerated for a substantial time under
federal law, see McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003) (finding a delay of
three years to be substantial, such that prejudice was presumed), especially considering
the 	pandemic 	that 	delayed 	criminal 	proceedings 	nation-wide. 	(citation 	omitted).
Mr. McDermott’s 2020 criminal cases are now proceeding in the state courts, and he is
vigorously litigating his claims, as described above.
33 See Fed. R. App. P. 22(b); 9th Cir. R. 22-1.
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3. 	This case is CLOSED.
Dated at Anchorage, Alaska this 28th day of June, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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