Talmadge v. Houser

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
BRETT ALAN JAMES TALMADGE,
Petitioner,
vs.
EARL HOUSER,
Respondent.
3:22-CV-00202-SLG-MMS
REPORT AND RECOMMENDATION
ON 18 U.S.C § 2241 PETITION [DKT. 1]
Petitioner Brett Alan James Talmadge (“Talmadge”) has asked this Court to dismiss
two ongoing state prosecutions. Respondent Earl Houser (“Houser”) objects on the basis
of abstention. This Court agrees that Younger and Arevalo are controlling and recommends
the dismissal of the petition.
I. 	SUMMARY OF RECOMMENDATION FOR PRO SE PETITIONER
Although Talmadge is represented by Assistant Federal Defender Michael Marks,
his petition rests on his pro se filings. As such, this Court provides the following summary
of this Report and Recommendation for Mr. Talmadge’s benefit.
You are understandably frustrated with the time that it has taken to resolve your
cases. Pretrial detention, in addition to being a heavy burden on your liberties, often carries
with it worse outcomes for defendants, including higher rates of conviction, longer
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sentences, and a greater risk of recidivism.1 	Nevertheless, at times the law does require
that a defendant be detained prior to their trial. This highlights the importance of the Sixth
Amendment right to a Speedy Trial, but the Constitution and federal law place limits on
how, when, and to whom your objections can be made. The record reflects that you have,
through counsel, been a participant in the repeated decisions to delay your trial, and that
COVID-19 otherwise justified the departure from typical procedures in holding jury trials.
Federal courts have limited authority. The states and the federal government share
a country, but they do not always share jurisdiction over the same matters. Before a federal
court will intervene in a state prosecution, it must be assured that the trial court is an
ineffective forum for a defendant to assert his federal rights, as opposed to his state rights.
In other words, if you have remaining avenues to remedy any wrongs by the state, you need
to pursue those before a federal court will consider the case.
Violations of state law are rarely within the purview of federal courts. State courts
retain the discretion to interpret the laws and constitutions of their state. 	Federal courts
accept the states’ interpretation, focusing instead on federal statutes and the federal
Constitution. 	This means that certain state laws and procedures, such as the forms and
filings that the state must file to prosecute your cases, are in the hands of the state court.
1 See, Emily Leslie & Nolan G. Pope, The Unintended Impact of Pretrial Detention on
Case Outcomes: Evidence from New York City Arraignments, 60 J.L. & E CON . 529 (2017)
(reviewing data to show worse outcomes for detainees); John D. Parron, Pleading for
Freedom: The Threat of Guilty Pleas Induced by the Revocation of Bail, 20 U. PA . J.
CONST . L. 137, 138 (2017) (discussing the potential for innocent defendants to plea guilty
when in pretrial detention).
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Additionally, violations of the Alaska Constitution should be addressed by the Alaska
courts. This may include, but does not have to, appealing your case.
You have two weeks to object to this Report and Recommendation, and you may
wish to discuss any appeal with Mr. Marks. You have five pages to explain what you think
is specifically wrong about this Report and Recommendation. It can be an objection to the
facts or the legal analysis. If you object, the government can respond. The District Court
then considers your objections (if you file them) and will agree or disagree with you, and
then rule on your motion. 	This information is included in the last page, so please make
sure to carefully read it.
This is just a summary. The Report and Recommendation is below.
II. 	BACKGROUND
2019 Arrest
In 2009, Talmadge was convicted for sexually abusing a child, including three
counts of second-degree sexual abuse of a minor and one count of attempted second-degree
sexual abuse of a minor.2 The Alaska Court of Appeals affirmed these convictions. Id. at
*5. 	When that appeal was pending, Talmadge filed a state post-conviction relief
application, but his attorney submitted a certificate of no merit, on which the trial court
relied when denying his application.3 The Alaska Court of Appeals reversed, finding that
relying on this certificate was inadequate. Id. Talmadge then alleged ineffective assistance
2 Talmadge v. State, No. A-10765, 2013 WL 784884, at *1 (Alaska App. Feb. 27, 2013).
3 Talmadge v. State, No. A-12835, 2018 WL 4361153 at *1 (Alaska App. Sept. 12, 2018).
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of counsel, which was denied.4 Talmadge appealed, and as of today, the Alaska Court of
Appeals has not issued a ruling.5
In 2016, Talmadge was placed on supervised release, conditioned on him not having
contact with minor children outside the presence of an approved adult and remaining within
his region of residence.6 	Talmadge was arrested for violating these terms on September
18, 2019. Id. at 6. On September 19, Talmadge was arraigned, the trial court set bail, he
was appointed a public defender, and an adjudication hearing was scheduled for September
24.7
On September 24, his attorney asked for a continuance to the 26th.8 	At the
September 26th hearing, Talmadge’s counsel asked for another continuance to review
discovery and meet with Talmadge.9 The state then filed a supplemental petition alleging
further violations of probation conditions.10 	The state further requested an unopposed
continuance based on a witness issue, and Talmadge filed a motion seeking specific records
from the Office of Children’s Services.11 Talmadge requested a continuance until the court
resolved that motion, which was fully briefed, decided, and complied with in July 2020.12
//
4 Talmadge v. State, Alaska App. A-14118.
5 Id.
6 See, Dkt. 20, Ex. 1 at 1–3.
7 See, Dkt. 20, Ex. 2 at 2–3; Ex. 3 at 33; Ex. 4 at 3PA-09-125 (“2009 Case”) Audio File
000 at 5:30 – 5:45.
8 See generally, Dkt. 20, Ex. 4 at 2009 Case Audio File 001.
9 See generally, id. at Audio File 002.
10 See, Dkt. 20, Ex. 5.
11 See, Dkt. 20, Exs. 6–8.
12 See, Dkt. 20, Exs. 9 and 10–12.
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2019 Charges
On December 18, 2019, a grand jury found probable cause to return an indictment
charging Talmadge with additional counts of child sex abuse.13 	On December 24th,
Talmadge was arraigned on these charges.14 On January 14th, the state supplemented the
revocation of release matter to include these new charges.15 	On February 4th, the court
scheduled an adjudication hearing for April 30th to resolve discovery matters, and a trial
for May 18th.16 However, the discovery issues were not resolved until July, which delayed
the trial.17
Subsequent Delays
The revocation of probation and the new charges continued in tandem.18 Before the
discovery issues were resolved, COVID-19 spread to the United States and Alaska,
prompting the courts to suspend in-person jury trials.19 Jury trials did not resume as normal
until mid-2021.20 Beginning in August 2020, criminal defendants could petition the trial
court to have a trial during this time, provided there were exceptional circumstances and
the parties agreed to adhere to social distancing protocols.21 	Talmadge never petitioned
13 Dkt. 20, Ex. 14.
14 Dkt. 20, Ex. 15.
15 Dkt. 20, Ex. 16.
16 Dkt. 20, Ex. 4 at 3PA-19-47CR (“2019 Case”), Audio File 001.
17 Dkt. 20, Ex. 13.
18 See generally, Dkt. 20, Ex. 4 2019 Case Audio Files, continuing the cases together.
19 See Special Order of the Chief Justice, No. 8131 (March 19, 2020).
20 See Special Order of the Chief Justice, No. 8259 (April 6, 2021); Special Order of the
Chief Justice, No. 8289 (June 21, 2021).
21 See Special Order of the Chief Justice, No. 8183 (August 6, 2020).
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under this exception. 	Between June 2020 and December of 2021, the trial court held
several pretrial hearings. At each, Talmadge’s counsel requested a continuance.22
In January 2022, Talmadge moved the state court to dismiss the charges connected
to the 2019 indictment.23 This was fully briefed, and the court denied his motion in June,
2022.24 	The court held two more pretrial hearings the next two months, and at each
continued the trial at the request of Talmadge.25 	In August, Talmadge again moved to
dismiss, with briefing concluding in December.26 Evidentiary hearings on this motion were
held in February and March of 2023.27 	Post-hearing briefs were filed in April and May,
and the second motion to dismiss was denied.28 	The trial is currently scheduled for the
week of October 30, 2023. Id.
On September 13, 2022, Talmadge filed this petition. 	From 	September to
December, Talmadge supplemented it with three memoranda.29 He was appointed counsel
and given leave to file a counsel reply to the state’s Answer.30 	On August 3, 2023, his
counsel submitted a Reply to the Answer.31
//
22 See, Dkt. 20, Ex. 4, 2019 Case Audio Files 002–009. 	Notably, these extensions were
often opposed by the victim’s mother.
23 See generally, Dkt. 20, Ex. 17.
24 See, Dkt. 20, Ex. 17.
25 See, Dkt. 20, Ex. 4, 2019 Case Audio Files 012–13.
26 See, Dkt. 20, Exs. 19–23.
27 See, Dkt. 20, Ex. 4, 2019 Case Audio Files 016 and 018.
28 See, Alaska Court System Courtview Publica Access Website, records.courts.alaska.gov,
Case No. 3PA-19-02947CR.
29 Dkts. 3, 4, and 6.
30 Dkts. 9 and 23.
31 Dkt. 24.
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III. 	PETITION
Talmadge petitioned this Court for a Writ of Habeas Corpus under 18 U.S.C. § 2241,
arguing (1) that the lack of a probable cause hearing for his probation revocation case is in
violation of the Fourth and Fourteenth Amendments; (2) that his Sixth and Fourteenth
Amendment right to a Speedy Trial has been violated; (3) that his counsel has provided
ineffective assistance for not filing motions on the prior violations; (4) that the state court
and the Alaska Supreme Court violated the Alaska Constitution regarding the COVID-19
procedures; and (5) that the state court lacked personal jurisdiction under state law.32 For
these violations, Talmadge request that this Court dismiss the state prosecution. Id.
The state responded (1) that Younger v. Harris33 abstention is appropriate here; (2)
that Talmadge is required to exhaust his state remedies under § 2241 and has not yet done
so; and (3) that his substantive claims are without merit.34
Talmadge filed a counseled reply, 35 which submitted on his previous pleadings and
suggested that this Court withhold judgment until an appeal before the Ninth Circuit is
resolved.36 No hearings were held.
The question before this Court is whether it should abstain from judgment in these
proceedings under Younger. This Court concludes that it should.
32 See generally, Dkts. 3, 4, and 6.
33 401 U.S. 37 (1971).
34 See generally, Dkt. 20.
35 Dkt. 24.
36 See, Hiratsuka v. Houser, No. 22-35180 (9th Cir. Sept. 5, 2023) (affirming the finding
that Younger abstention is appropriate.).
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This Court hereby issues its Report and Recommendation regarding Talmadge’s
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Dkt. 1. For the reasons below,
Talmadge’s Petition should be DISMISSED without prejudice. 28 U.S.C. § 636(b)(1)(B).
IV. 	LEGAL STANDARD
28 U.S.C. § 2241
28 U.S.C. § 2241 provides a procedural vehicle for a state detainee who has not
been convicted by a final state court judgment to challenge that detention on the ground
that it is “in violation of the Constitution or laws or treaties of the United States.” As such,
relief under § 2241 can only be afforded in the event of a violation of federal law.37 	A
petitioner must also have exhausted the state court remedies before pursuing a claim under
28 U.S.C. § 2241.38 Exhaustion is a practice of “judicial restraint,” as federal courts may
elect to not exercise their jurisdiction under Sec. 2241 until the state processes have
concluded.39
Younger Abstention
In Younger v. Harris, the Supreme Court held that a federal court should abstain
from interfering with a pending state criminal proceeding.40 	A federal court, “anxious
though it may be to vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the legitimate activities of
37 See, Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that
‘federal habeas relief does not lie for errors of state law.’”) (quoting Estelle v. McGuire,
502 U.S. 62, 67 (1991)).
38 See, Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 491–92 (1973).
39 Carden v. State of Mont., 626 F.2d 82, 83 (9th Cir. 1980).
40 401 U.S. 37, 41 (1971).
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the States.” 	Id. at 44. 	Younger abstention is “rooted in overlapping principles of equity,
comity, and federalism.”41 	“[T]he National Government will fare best if the States and
their institutions are left free to perform their separate functions in their separate ways.”42
Abstention is appropriate when:
(1) there is ‘an ongoing state judicial proceeding’; (2) the proceeding
‘implicate[s] important state interests’; (3) there is ‘an adequate opportunity
in the state proceedings to raise constitutional challenges’; and (4) the
requested relief ‘seek[s] to enjoin’ or has ‘the practical effect of enjoining’
the ongoing state judicial proceeding.43
Absent “bad faith, harassment, or other extraordinary circumstances,” a federal court
should abstain when the above factors are met.44 For instance, a federal court may order a
state trial court to have an immediate trial to protect the Sixth and Fourteenth Amendment
right to a Speedy Trial.45 Another such exception is to protect a defendant’s right against
Double Jeopardy.46
Speedy Trial
As to Speedy Trial, “extreme delay” can convince a federal court that the state court
is an ineffective forum.47 “When a state handles his case in glacial fashion, a prisoner need
not wait for global warming to set in .... before being entitled to present to a federal court
41 Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018).
42 Younger, 401 U.S. at 44.
43 Arevalo, 882 F.2d at 765. (citing ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund,
754 F.3d 754, 758 (9th Cir. 2014)).
44 Page v. King, 932 F.3d 898, 902 (9th Cir. 2019).
45 Braden v. 30th Jud. Cir. Ct. of Kentucky, 410 U.S. 484, 495 (1973).
46 See, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300–03 (1984); Mannes v.
Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992).
47 Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998).
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his challenge to the judgment of conviction.”48 However, this delay must be attributed to
“ineffective state process,” rather than the petitioner. Id.
Controlling Ninth Circuit precedent further speaks to Speedy Trial in the context of
COVID-19. The pandemic posed a critical question of how to protect both public health
and the Speedy Trial rights of criminal defendants. 	While the implementation of safety
protocols was often confusing and subject to rapid change as public health officials
published updated advice, the Ninth Circuit found that the exigencies caused by the
pandemic justified delaying jury trials.49 Speedy Trial was “not cast aside” by the state’s
emergency orders, as the unprecedented crisis necessitated this caution. Id. at 1049.
V. 	ANALYSIS
a. 	Younger abstention is appropriate in cases where, as here, the petitioner is
requesting that a Federal Court dismiss a state prosecution.
Younger and Arevalo are controlling in this case. 	Talmadge asks this Court to
dismiss with prejudice two ongoing criminal prosecutions. Not only does this satisfy the
first prong of Younger abstention, but the request to dismiss the prosecution has “the
practical effect of enjoining” the Alaska trial court.
Furthermore, these 	proceedings 	implicate 	important, 	if 	not 	compelling, 	state
interests. The safety of the community, particularly children, is certainly a concern of the
state. 	“The prevention of sexual exploitation and abuse of children constitutes a
government objective of surpassing importance.”50 	“[T]he protection of children from
48 Id. at 586 (citing Burris v. Farley, 51 F.3d 655, 658 (7th Cir.1995)).
49 United States v. Olsen, 21 F.4th 1036, 1046 (9th Cir. 2022).
50 New York v. Ferber, 458 U.S. 747, 757 (1982).
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harm, whether moral, emotional, mental, or physical, is a valid and compelling state
interest.”51 	For this Court to divest Alaska of this interest, it must find that Talmadge
cannot vindicate his rights in the state courts first.
However, he can do so. First, he has appellate rights under Alaska law, and he has
availed himself of that option several times. For instance, Talmadge appealed his sentence
and conviction prior to these appeals, though those trial court decisions were affirmed.52
Separately, Talmage appealed to and convinced the Alaska Court of Appeals that relying
on his former counsel’s certification of no merit was improper.53 Further, he has another
appeal pending at this time.54 	The ability for Talmadge to file appeals such as these is
enough to convince this Court that Alaska courts remain an adequate forum, but its decision
is buttressed by the fact that Talmadge can raise the claims in his petition in the concurrent
proceedings in the trial court. Since filing this petition, Talmadge has had multiple pretrial
hearings with a court that appears to be engaged and is actively working to move his cases
forward.
Talmadge posits that some of his claims, particularly that the Alaska Supreme Court
was improper in issuing its special orders regarding the COVID-19 Pandemic, would not
receive fair consideration in Alaska Courts.55 	This Court does not find this persuasive.
51 Dutchess v. Dutch, No. S-18109, 2022 WL 701866, at *3 (Alaska Supreme Court Mar.
9, 2022) (citing Roberts v. Roberts, 586 S.E.2d 290, 295 (Va. App. 2003).
52 Talmadge v. State, No. A-10765, 2013 WL 784884, at *1 (Alaska Ct. App. Feb. 27,
2013).
53 Talmadge v. State, No. A-12835, 2018 WL 4361153 at *1 (Alaska App. Sept. 12,
2018).
54 Talmadge v. State, Alaska App. A-14118.
55 Dkt. 3 at 2–3.
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First, to rule that the Alaska Supreme Court is incapable of ruling on its own orders would
violate the very notions of comity and federalism upon which Younger is based. Second,
even if this postulate were true, the proper remedy would be to appeal from or collaterally
attack an adverse decision from the Alaska Supreme Court, rather than have this Court
dismiss the trial at this time.
With 	these 	considerations 	in 	mind, 	this 	Court 	finds 	Younger 	abstention
appropriate.56
b. 	Talmadge’s substantive claims either lack merit or are outside of the
jurisdiction conferred under 28 U.S.C. § 2241.
As a threshold matter, to the extent that Talmadge asks this Court for relief based
on state law violations, this Court should dismiss due to lack of subject matter jurisdiction
conferred by Sec. 2241. Talmadge’s arguments as to the whether state law permitted the
Alaska Supreme Court to make its pandemic-related protocols, whether the state trial court
had personal jurisdiction based on state law, and whether state law required a specific
probable case hearing and fillings are outside of the purview of this Court.
His other claims, as to the requirement of a suspension revocation probable cause
determination under federal law, as to his right to a speedy trial, and his right to effective
assistance of counsel, also fall short.
1. 	The lack of a probable cause hearing is not in violation of federal law.
56 As noted supra, precedent on Sec. 2241 also requires exhaustion of state remedies.
Because this Court finds Younger abstention appropriate, it need not consider whether the
Sec. 2241 petition is ripe for substantive consideration, though many of the same facts
discussed in this section would also be applicable to whether the petition is ripe.
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Talmadge argues that his right to a probable cause determination was violated by
the state. 	The state argues that because the delay was attributable to Talmadge, he does
not have a viable probable cause ground.57 This Court agrees with the state.
The 	Constitution 	recognizes 	the 	liberty 	interest 	implicated 	by 	a 	supervised
releasee’s revocation of release. See Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (“By
whatever name, the liberty is valuable and must be seen as within the protection of the
Fourteenth 	Amendment. 	Its 	termination 	calls 	for 	some 	orderly 	process, 	however
informal.”). At a minimum, this requires “an informal hearing structure to assure that the
finding of a parole violation will be based on verified facts[. . .]”. Id. at 484.
While the lack of such hearing gives this Court initial pause, Talmadge either asked
for, or did not object to continuances stretching into 2020 and beyond.58 	Furthermore,
when Talmadge was arraigned for his 2019 charges, he was not only found by the grand
jury to have committed new offenses by probable cause, but his bail conditions were set.59
Morrison applies to the question of probable cause in the revocation of release. If new and
separate charges are brought, the probable cause protections attached to grand jury
determinations are applicable.
Talmadge does not argue that the grand jury was not impartial or that the evidence
presented before it was either improper or did not amount to probable cause. Instead, he
focuses on the revocation of his release in the 2009 case. Without considering the further
57 Dkt. 20 at 25–29.
58 See discussion of the 2009 case supra.
59 Dkt. 20, Ex. 4, 2019 Case, Audio File 000.
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delays and their relation to the COVID-19 Pandemic, the lack of a probable cause hearing
is both moot and of his own doing. 	As such, this Court does not find that there is due
process violation here, even if Younger is not applicable.
2. 	Talmadge similarly does not have a claim under the right to Speedy Trial.
As discussed supra, the right to a speedy trial does not permit a defendant to
complain of delay that was caused by his own doing. Also discussed infra, the COVID-19
protocols complied with his Constitutional rights. Talmadge, through counsel and through
not opposing motions by the state, has permitted this matter to take this long. Although he
could have objected in the state court to the prosecution’s motions for continuance, he did
not do so. His multiple motions to dismiss and discovery requests have delayed the matters
further. As such, this Court does not find that there is a Speedy Trial violation here, even
if Younger is not applicable.
3. 	Talmadge cannot claim ineffective assistance in this Court at this time.
Talmadge argues that he has received ineffective assistance of counsel.60 The state
responds that (1) his claim is not ripe because trial has not concluded; (2) that the claims
he wishes to bring are incorrect on their merits; and (3) his attorneys’ conduct falls short
of the high bar to find them ineffective.61
While the state is correct that it is difficult to address on habeas an ineffectiveness
of counsel claim, this Court also wants to note that the remedy in this case would not be to
dismiss the prosecutions. 	Instead, the proper remedy would be to appoint new counsel.
60 Dkt. 3 at 4–5.
61 Dkt. 20 at 37–39.
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For the same reasons as above, namely ripeness to bring this action in federal court, this
Court will not reach the merits of this claim. However, if Talmadge wishes to pursue this
claim, the state court would be the proper forum.
4. 	The state’s pandemic-related orders did not violation the Constitution.
The Alaska Supreme Court also did not violate the Constitution with its pandemic-
related orders. As discussed supra, the Ninth Circuit in Olsen analyzed the extraordinary
circumstances 	surrounding 	the 	COVID-19 	Pandemic 	and 	found 	that 	a 	temporary
suspension of jury trials did not violate the right to a speedy trial. 	As such, even if this
Court were to consider Talmadge’s grounds substantively, this is not “in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241.
VI. 	CONCLUSION
For the reasons set forth above, Talmadge’s Petition should be DISMISSED
without prejudice. 28 U.S.C. § 636(b)(1)(B).
DATED this 11th day of September, 2023, at Anchorage, Alaska.
MATTHEW M. SCOBLE
CHIEF U.S. MAGISTRATE JUDGE
Pursuant to D. Alaska Loc. Mag. R. 6(a), a party seeking to object to this proposed finding
and recommendation shall file written objections with the Clerk of Court no later than the
CLOSE OF BUSINESS on September 25, 2023. Failure to object to a magistrate judge’s
findings of fact may be treated as a procedural default and waiver of the right to contest
those findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The
Ninth Circuit concludes that a district court is not required to consider evidence introduced
for the first time in a party’s objection to a magistrate judge’s recommendation. 	United
States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed
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five (5) pages in length and shall not merely reargue positions presented in motion papers.
Rather, 	objections 	and 	responses 	shall 	specifically 	designate 	the 	findings 	or
recommendations objected to, the basis of the objection, and the points and authorities in
support. 	Response(s) to the objections shall be filed on or before the CLOSE OF
BUSINESS on October 2, 2023. The parties shall otherwise comply with provisions of D.
Alaska Loc. Mag. R. 6(a). Reports and recommendations are not appealable orders. Any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the
District Court’s judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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