Hyde v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DAVID HYDE,
Petitioner,
vs.
EARL HOUSER,
Respondent.
No. 3:21-cv-00132-JKS
ORDER OF DISMISSAL
On May 2, 2021, David Hyde, a state prisoner proceeding pro se, filed a Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”). Docket No. 1. Hyde challenges his 2018
assault convictions following a jury trial in the Alaska Superior Court, Case No. 3PA-18-
00367CR, on the grounds that: 1) he was subjected to “obstruction of justice;” 2) he received the
ineffective assistance of counsel; 3) he was deprived of his constitutional right to due process;
and 4) he was subjected to “vindictive prosecution.” Id. at 5, 7, 8, 10.
After reviewing the Petition pursuant to Rule 4 of the Rules Governing Section 2254
Cases, the Court determined that the claims raised in the Petition had not be presented properly
to the State courts and were therefore wholly unexhausted. Docket No. 3 at 2-3. The Court
further explained that, to raise claims before this Court on federal habeas review, a petitioner
must present those claims to the State courts and allow those courts to decide them in the first
instance. Id. The Court allowed Hyde an opportunity to address his failure to first raise the
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claims in State courts, and demonstrate why this Court should nonetheless consider his claims.
Id. at 3-4. The deadline for Hyde’s response has now passed, and no submission has been
received.
As this Court previously explained, a state prisoner is required to exhaust all state court
remedies, by fairly presenting claims of violation of federal rights before the state courts, before
seeking a writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is a
matter of comity, intended to afford the state courts the “initial opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275
(1971) (emphasis added). This is appropriate, because “state courts, like federal courts, are
obliged to enforce federal law.” O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999).
To exhaust his or her federal claims, a would-be habeas petitioner must finish “one
complete round of the State’s established appellate review process,” up to the highest state court
with powers of discretionary review. Id. at 845. A federal court must dismiss a federal habeas
corpus petition if its claims are unexhausted. Coleman v. Thompson, 501 U.S. 722, 731 (1991).
This Court has the sua sponte authority to examine the question of exhaustion at this stage of
review. Campbell v. Crist, 647 F.2d 956, 957 (9th Cir. 1981) (“This court may consider whether
state remedies have been exhausted even if the state does not raise the issue”).
By failing to respond, Hyde does not dispute that he has failed to exhaust the claims
raised in the instant Petition by presenting them to the state courts. Nor does he demonstrate that
a fundamental miscarriage of justice would result if the Court declined to consider his
unexhausted Petition, or that he is actually innocent of the crimes for which he was convicted.
The record here does not permit the Court to conclude that Hyde is foreclosed, as a
matter of state law, from exhausting the claims raised in the Petition. In the event Hyde intends
to attempt to pursue these claims, or is in the process of pursuing them, a dismissal without
prejudice here allows him the opportunity to do so.1
1 Mr. Hyde is reminded, however, that he should not return to this Court until he
has fully exhausted any claims he wishes to raise in this Court by presenting them first to the
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IT IS THEREFORE ORDERED:
1. 	The Petition is DISMISSED WITHOUT PREJUDICE.
2. 	All pending motions are DENIED AS MOOT.
3. 	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 v. Cockrell, 537 U.S. 322, 327 (2003))). Any further
request for a Certificate of Appealability must also be addressed to the Ninth
Circuit Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R. 22-1.
4. 	The Clerk of Court is respectfully directed to enter final judgment in this case.
Dated at Anchorage, Alaska this 12th day of July, 2021.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
Alaska state courts.
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