Leichty v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THOMAS F. LEICHTY,
Petitioner,
vs.
EARL L. HOUSER, Superintendent III,
Goose Creek Correctional Center,
Respondent.
No. 3:19-cv-00283-JKS
ORDER
Thomas F. Leichty, a state prisoner proceeding pro se, filed with this Court a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254 dated September 3, 2019. Docket No. 1
(“Petition”). Leichty challenges the judgment of conviction following a jury trial entered by the
Superior Court for the State of Alaska, Case Number 3AN-03-7048CR. Id. at 1. Leichty asserts
that the grounds for relief raised in his Petition have been brought in the Alaska state courts,
including the Alaska Supreme Court, as required by § 2254(b). Docket No. 1 at 5-6. Based on
Leichty’s assertion that he had raised all grounds for relief all the way to the Alaska Supreme
Court, this Court ordered Respondent to answer the Petition and provide any and all transcripts
or other documents relevant to the determination of the issues presented in the application.
Docket No. 7.
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After reviewing the full set of documents relating to Leichty’s cases in state court (which
were not previously available to this Court), the Court has determined that Leichty has not
exhausted certain claims he cursorily raises in his Petition. This Court may not consider claims
that have not been fairly presented to the State courts. See Baldwin v. Reese, 541 U.S. 27, 29
(2004) (citing cases). Specifically, pursuant to 28 U.S.C. § 2254(b)(1)(A) and (B), before a
court may grant a Writ of Habeas Corpus on behalf of a person in custody pursuant to the
judgment of a State court, the petitioner must either (A) exhaust “the remedies available in the
courts of the State” or (B) show “there is an absence of available State corrective process; or
circumstances exist that render such process ineffective to protect the rights of the applicant.”
To satisfy the “fairly present” requirement, the petitioner actually must present his or her 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. Baldwin v. Reese,
541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per curiam). In Alaska,
this means that claims must first be presented to the Alaska Superior Court. If the petitioner
disagrees with that result, the claim should be raised to the Alaska Court of Appeals, and if he
disagrees with that result, the claim should be raised in a petition for hearing to the Alaska
Supreme Court.
In Ground 1 of the Petition, Leichty refers to ground C of the form petition (conviction
obtained by use of evidence gained pursuant to an unconstitutional search and seizure) and
alleges in the fact section that his Fourth Amendment rights were violated under Miranda v.
Arizona, 384 U.S. 436 (1966) (a suspect has a constitutional right not to speak to police after he
is arrested and given his Miranda warnings). A review of the state court record submitted by
Respondent reflects that Leichty raised this claim all the way to the Alaska Supreme Court, as
required for federal habeas review.1
1 In his answer, Respondent argues that Leichty failed to fully exhaust his Miranda
claim because he did not raise the federal nature of it to the Alaska courts. The Court reserves
ruling on this issue.
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However, Leichty also cursorily lists in Ground 1 form petition grounds F (conviction
obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence
favorable to the defendant), H (conviction obtained by action of a grand or petit jury which was
unconstitutionally selected and impaneled), and I (denial of effective assistance of counsel). He
provides no facts supporting these claims,2 and a review of the recently-provided state court
record indicates that Leichty has never raised these claims to the Alaska state courts. Because
these grounds are listed within the Ground 1 Miranda claim, it is unclear to this Court whether
Leichty contends that these claims are subsumed within his Miranda claim or are separate
grounds for relief.
IT IS THEREFORE ORDERED THAT on or before April 13, 2020, Leichty shall
elect one of the following options:
a) voluntarily dismiss the entire Petition without prejudice under Federal Rule of
Civil Procedure 41(a)(1), with the understanding that any later petition may be
time-barred under 28 U.S.C. § 2241(d)(1);
b) voluntarily dismiss the aforementioned grounds F, H, and I from the current
Petition and elect to proceed only on the Miranda claim; OR
2 Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition must
“specify all grounds for relief available to the petitioner [and] state the facts supporting each
ground.” If Leichty attempts to raise separate claims based on these grounds for relief, he fails
to articulate those claims or cite facts that would support an inference that his federal
constitutional rights may have been violated. This Court would have to engage in a tenuous
analysis in order to attempt to identify the thrust of this claim. Although pro se habeas filings
must be construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), such
leniency should not place on the reviewing court the entire onus of ferreting out grounds for
relief, and “[c]onclusory allegations which are not supported by a statement of specific facts do
not warrant habeas relief,” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see also Greenway v.
Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (“[C]ursory and vague claim[s] cannot support habeas
relief.”); Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995). Facts must be stated in the
petition with sufficient detail to enable the Court to determine, from the face of the petition,
whether further habeas corpus review is warranted.
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c) request that the Petition be stayed pursuant to Rhines v. Weber, 544 U.S. 269,
277 (2005), if he can show (i) good cause for his failure to earlier exhaust the
unexhausted claims in state court; (ii) the unexhausted claims are not plainly
meritless; and (iii) he has not engaged in abusive litigation tactics or intentional
delay.
If Leichty fails to comply with this Order, the Court will adjudicate Leichty’s
Petition as submitted, which may result in the dismissal of the Petition. The Court defers
ruling on the pending motions until Leichty elects one of the foregoing options or the
expiration of the deadline to do so.
Dated at Anchorage, Alaska this 31st day of March, 2020.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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