Davison v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DENNIS DAVISON,
Petitioner,
v.
EARL HOUSER,
Respondent.
Case No. 3:22-cv-00234-SLG
ORDER OF DISMISSAL
On October 24, 2022, Dennis Davison, a self-represented prisoner, filed a
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody.1 Then, on November 16, 2022, Mr. Davison filed a “Motion to Put No
Contact Restraining Order against the State of Alaska Court System, State
Judges, State District Attorney(s), State Public Defender(s), State Public
Advocate(s), and the Anchorage Police Department, Inter alia, Federal
Protection.”2 The Court takes judicial notice3 of Mr. Davison’s underlying criminal
conviction in State of Alaska v. Dennis Davison, Case No. 2NO-07-00155CR and
his post-conviction proceedings, In the Matter of Dennis Davison v. State of
1 Docket 1.
2 Docket 7.
3 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; the court’s power to accept such a fact.”
BLACK’S LAW DICTIONARY (11th ed. 2019); 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); see also Fed. R.
Evid. 201.
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Alaska, Case No. 2NO-13-00209CI. The Court also takes judicial notice of the
previous cases Mr. Davison has filed with this Court: On April 12, 2017, Mr.
Davison filed both a Habeas Petition4 and a Prisoner’s Complaint Under the Civil
Rights Act 42 U.S.C. § 1983 (“Section 1983”).5
SCREENING REQUIREMENT
A court must “promptly examine” a habeas petition.6 “If it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief
in the district court, the judge must dismiss the petition.”7 Upon screening, it plainly
appears that Mr. Davison is not entitled to habeas relief pursuant to Section 2254
and his petition must be dismissed.
DISCUSSION
This is the second § 2254 petition Mr. Davison has filed based on the same
underlying criminal case. The previous case was dismissed without prejudice on
June 19, 2017, because Mr. Davison had failed to exhaust his remedies in the
state courts.8 Mr. Davison appealed to the Ninth Circuit Court of Appeals on July
3, 2017.9 The Certificate of Appealability was denied by this Court on July 10,
4 Davison v. Lapinskas, Case No. 3:17-cv-00083-SLG, Docket 1.
5 Davison v. Estate of Ben Esch, et al., Case No. 3:17-cv-00082-TMB, Docket 1.
6 Rule 4, Rules Governing Section 2254 Proceedings for the United States District Courts.
7 Rule 4, Rules Governing Section 2254 Proceedings for the United States District Courts.
8 Davison v. Lapinskas, Case No. 3:17-cv-00083-SLG, Docket 6.
9 Id. at Docket 8, 10.
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2017.10 Then, on September 7, 2017, the Ninth Circuit also denied his request for
a Certificate of Appealability based on its determination that the underlying petition
failed to state any federal constitutional claims debatable among jurists of reason.11
A prisoner may file a second habeas petition where first petition was dismissed
without prejudice for failure to exhaust state remedies.12 However, Mr. Davison
has still not exhausted his state court remedies, so this petition must also be
dismissed.
A prisoner that is in custody based on a state court conviction may not bring
a Section 2254 petition prior to exhausting his state court remedies.13
Exhaustion of state remedies requires the petitioner to fairly present the federal
claims to the state courts in order to give the state the opportunity to pass upon
and correct any alleged violations of its prisoners' federal rights.14 To satisfy the
“fairly present” requirement, the petitioner must present his federal claim to “each
appropriate court (including a state supreme court with powers of discretionary
review)” so that the each court is alerted to the federal nature of the claim.15
10 Id. at Docket 9.
11 Id. at Docket 11.
12 28 U.S.C. § 2244(b); see also In re Turner, 101 F.3d 1323 (9th Cir. 1996), as amended Jan.
21, 1997.
13 28 U.S.C. § 2254(b)(1).
14 Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curium).
15 Baldwin v. Reese, 541 U.S. 27, 29 (2004) (relying on Duncan, 513 U.S. at 365-66.).
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In Alaska, this means that claims must first be presented to the Alaska
Superior Court. If the petitioner disagrees with that result, the claim must then be
raised to the Alaska Court of Appeals, and if he disagrees with that result, the claim
must be raised in a petition for hearing to the Alaska Supreme Court.16 This
process also applies to post-conviction proceedings by the Alaska Superior Court
and review of any post-conviction decision by the Alaska Court of Appeals and the
Alaska Supreme Court.17
As discussed in the previous dismissal order, Mr. Davison did appeal his
criminal case to the Alaska Court of Appeals and to the Alaska Supreme Court.18
The Alaska Supreme Court remanded his case to the Alaska Court of Appeals.19
The Court of Appeals then remanded the case back to the trial court.20 The public
record of the trial court case after it was remanded shows only one docket entry
thereafter: an “Order Upon Conclusion of Appeal,” entered on August 28, 2013.21
It is unclear whether, and if so, how, the trial has addressed the issues remanded
16 See O’Sullivan v. Boerkel, 526 U.S. 828, 845. In Alaska, a criminal defendant may request
discretionary review by the Alaska Supreme Court. See Alaska Statutes §§ 22.05.010,
22.07.020, and 22.07.030; Alaska Rules of Appellate Procedure 215, 301, and 302.
17 See 28 U.S.C. § 2254(c); see also O’Sullivan, 526 U.S. at 844-45. See generally Alaska R.
Crim. P. 35.1.
18 Davison v. Lapinskas, Case No. 3:17-cv-00083-SLG (D. Alaska), Docket 6.
19 Davison v. State, 282 P.3d 1262, 1263–64 (Alaska 2012).
20 Davison v. State, 307 P.3d 1, 3–4 (Alaska Ct. App. 2013).
21State of Alaska v. Dennis Davison, Case No. 3AN-12-12425CR (Docket Entry 8/28/2022).
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by the Alaska Court of Appeals. Public records, however, do not show any
additional appeals.22
Mr. Davison also filed for post-conviction relief.23 The Superior Court denied
that application and closed the case on March 14, 2017. Mr. Davison did not
appeal that decision to the Alaska Court of Appeals or to the Alaska Supreme
Court. Mr. Davison alleges that case was “lost in transfers”24 and that he hand-
delivered documents to this Court sometime in 2020.25 Per review of the Court’s
docket, there were no filings in any case made by Mr. Davison between the last
filing in his § 1983 case on October 2, 201726 and the initiation of this case on
October 24, 2022. Because Mr. Davison has still not exhausted his state court
remedies, his habeas petition under 28 U.S.C. § 2254 cannot proceed at this time
in this Court.
Mr. Davison asserts that there are “extraordinary circumstances” that should
permit his case to proceed.27 But while extraordinary circumstances may excuse
22 See Alaska Court System’s Courtview search engine at
http://www.courtrecords.alaska.gov/eservices/home.page.
23 In the Matter of: Davison, Dennis K vs. State of Alaska, Case No. 2NO-13-00209CI.
24 Docket 1 at 3-5.
25 Docket 1 at 4.
26 Davison v. Estate of Ben Esch et al, Case No. 3:17-cv-00082, Docket 7.
27 Docket 1 at 13-14.
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an untimely habeas petition, they cannot excuse the requirement to exhaust state
court remedies.28
OTHER CLAIMS INCLUDED IN PETITION
Mr. Davison also includes additional allegations, such as conspiracy and
discrimination, in his petition.29 A habeas corpus petition is the correct method for
a prisoner to challenge the “legality or duration” of his confinement.30 A federal
court lacks jurisdiction over claims of constitutional violations that are not within
the “core of habeas corpus.”31 Although a district court may construe
a habeas petition by a prisoner as a civil rights action under Section 1983,32 the
Court declines to do so here. A prisoner civil rights suit differs from a habeas
petition in a variety of respects, such as the proper defendants, type of relief
available, filing fees, and restrictions on future filings.33 The exhaustion
requirements for filing a prisoner civil rights complaint also differ from those
required in a federal habeas action.
28 Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (“A petitioner cannot bring a federal habeas
claim without first exhausting state remedies.”).
29 See, e.g., Docket 1 at 8, 9.
30 Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475,
485 (1973)).
31 Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc).
32 See Wilwording v. Swenson, 404 U.S. 249, 251 (1971).
33 Nettles, 830 F.3d at 936 (quoting Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011)).
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Further, as noted above, Mr. Davison filed a Section 1983 case in this Court
on April 12, 2017.34 In that case, he alleged that he challenged the decisions that
Alaska Superior Court Judge Esch made in his 2007 criminal case and alleged he
was denied his “civil right to assistance of conflict-free counsel” in that criminal
case.35 For relief, he sought money damages and injunctive relief against Judge
Esch and money damages from his court appointed attorneys, Michele Murphy
and John Cashion.36 That Section 1983 case was dismissed with prejudice due to
judicial immunity, failing to allege the essential elements of a § 1983 claim, and the
statute of limitation.
To the extent Mr. Davison intends to bring the same or similar claims based
on conduct he alleges to have occurred in his 2007 Alaska criminal state court
case, such claims would be barred due to the prior dismissal with prejudice and
the statute of limitations. The Court cautions that if a civil rights complaint is
dismissed as frivolous or malicious or for failure to state a claim upon which relief
may be granted, it would count as a “strike” against Plaintiff under § 1915(g).37
34 Davison v. Estate of Ben Esch et al, 3:17-cv-00082-TMB, Docket 1.
35 Id. at 3-5.
36 Id.
37 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any
federal court in the United States which are dismissed as frivolous or malicious or for failure to
state a claim upon which relief may be granted, from bringing any other actions without
prepayment of fees unless the prisoner can demonstrate that he or she is in “imminent danger
of serious physical injury.”
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MOTION FOR RESTRAINING ORDER
At Docket 7, Mr. Davison filed a motion “to put no contact restraining order”
against various entities and persons. Such a motion is outside the scope of habeas
relief available in federal court. Accordingly, the motion at Docket 7 must be
DENIED.
IT IS THEREFORE ORDERED:
1. The Petition Under 28 U.S.C. § 2254 is DISMISSED WITHOUT
PREJUDICE, due to the failure of Mr. Davison to exhaust his state court
remedies.
2. The motion at Docket 7 is DENIED.
3. All other pending motions are DENIED AS MOOT.
4. A Certificate of Appealability shall not issue.38
5. The Clerk of Court is directed to enter a Final Judgment and terminate this
action.
DATED this 3rd day of January, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
38 28 U.S.C. §§ 2255(d), 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(certificate of appealability may be granted only if applicant made a “substantial showing of the
denial of a constitutional right,” i.e., a showing that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further” (internal quotations
and citations omitted)).
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