Natekin v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
VIKTOR I. NATEKIN,
Petitioner,
vs.
EARL HOUSER, Superintendent, Goose
Creek Correctional Center,
Respondent..
No. 3:21-cv-00030-JKS
ORDER
[Re: Motion at Docket No. 14]
and
MEMORANDUM DECISION
Viktor I. Natekin, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. Natekin is in the custody of the Alaska
Department of Corrections (“DOC”) and incarcerated at Goose Creek Correctional Center.
Respondent has answered, and Natekin has replied. Also pending before the Court is Natekin’s
renewed request for the appointment of counsel at Docket No. 14.
I. BACKGROUND/PRIOR PROCEEDINGS
On January 3, 2007, Natekin was charged with attempted first-degree sexual assault
(Count I) and second-degree sexual assault (Count II) in an indictment alleging that, at the age of
37, he assaulted, groped, and fondled 17-year-old J.M. in December 2006. On direct appeal of
his conviction, the Alaska Court of Appeals recounted the following facts underlying the charges
against Natekin:
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On December 26, 2006, 17–year–old J.M. was visiting her friend Dubravka
Stewart. Stewart lived in the same apartment complex as Lilly Zidrashko, another of
J.M.’s friends. Because Zidrashko was in the process of moving out of the apartment
complex, J.M. went over to Zidrashko’s apartment to retrieve some belongings that she
had left there.
When J.M. arrived at Zidrashko’s apartment, she found 37–year–old Viktor
Natekin (who was also friends with J.M.) and another man, Anatoly Gravolnik. Natekin
and Gravolnik were there to help Zidrashko move, but when J.M. arrived, no actual
“moving” was taking place. Instead, Zidrashko, Natekin, and Gravolnik were in the
kitchen dancing, eating, and drinking. All three of them were “very intoxicated.”
J.M. collected her belongings and then used Zidrashko’s bathroom. When she
exited the bathroom, Natekin grabbed her, dragged her into the bedroom, shut the door,
and pulled her to the floor. Natekin got on top of J.M., and then he started both kissing
and strangling her. While this was happening, J.M.’s cell phone rang. She tried to
answer it, but Natekin grabbed the phone and threw it against the wall.
Natekin ripped J.M.’s shirt open, and then he kissed and sucked on her breasts.
J.M. was screaming and crying and pleading with Natekin to stop. She hit him and
kicked him in an effort to get him off of her, but Natekin sat on her chest and pinned her
arms down. He unbuttoned her pants and stuck his hand down her pants, inside her
underwear, but he did not penetrate her genitals. Natekin put his hands over J.M.’s face
to stifle her screams, and she drifted in and out of consciousness from lack of oxygen.
Natekin then took his belt off and unzipped his pants. He requested that J.M. give
him oral sex. Eventually, J.M. told Natekin that she would do what he wanted, and he
got off of her. At this point, J.M.’s friend Dubravka Stewart called her on her cell phone.
J.M. grabbed the cell phone and was able to ask for help before Natekin again seized the
phone and threw it aside.
Natekin now grabbed J.M. by the hair and throat, and jerked her backwards.
Stewart, meanwhile, hastened to the apartment, went inside, and kicked in the bedroom
door. When Stewart entered the room, Natekin got off of J.M., and J.M. was able to run
out of the room. The entire attack lasted approximately 30 to 40 minutes.
Stewart took J.M. back to her apartment, and then Stewart called the police.
Natekin was arrested and charged with one count of attempted first-degree sexual assault
(i.e., attempted non-consensual sexual penetration) and one count of second-degree
sexual assault (i.e., non-consensual sexual contact).
Natekin v. State, Nos.A-10393, A-10394, 2011 WL 5904467, at *1-2 (Alaska Ct. App. Nov. 23,
2011).
On post-conviction review, the Court of Appeal described the first two plea offers1 the
State made to Natekin:
Early in the case, the State proposed that if Natekin pleaded guilty to the
attempted sexual assault charge, the State would agree to a sentence of 25 years to serve.
Natekin apparently either rejected or never responded to this offer.
Several months later, shortly before Natekin’s trial was scheduled to begin, the
State made a second offer: if Natekin pleaded guilty to second-degree sexual assault, the
State would agree to a sentence of 10 years to serve. When court convened the next day,
1 The State extended a total of three plea offers to Natekin.
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the prosecutor told the court about the new plea offer, and Natekin’s attorney asked for
time to speak to her client.
Natekin’s attorney also informed the court that she did not have a court-certified
Russian interpreter. (Natekin is a Russian national, and his native language is Russian.)
However, the defense attorney told the court that Natekin’s friend and family pastor,
Sergiy Korelov, was available to serve as interpreter while she and Natekin discussed the
State’s offer. The court had Korelov take the interpreter’s oath,[2] and then Korelov
participated (as interpreter) in the conference between Natekin and his defense attorney.
The result of this conference was that Natekin did not accept the State’s second
offer, and his trial began.
Natekin v. State, No. A-12579, 2019 WL 5425497, at *2 (Alaska Ct. App. Oct. 23, 2019).
Early in the trial, J.M. was subpoenaed to give testimony on the morning of November
15, but she failed to appear. The trial judge issued a material witness warrant, as requested by
the prosecution, and J.M. was picked up that evening. The next morning, the trial judge held a
hearing outside of the jury’s presence to investigate why J.M. had not come to court the previous
day. At the hearing, J.M. stated that she had been contacted by both Natekin’s wife and brother,
both of whom offered her money if she did not testify against Natekin. According to J.M., she
decided not to take the money but ultimately refused to come to court because she was scared to
testify.
2 The Court takes judicial notice that the interpreter’s oath used by the Superior
Court at the time required Korelov to “solemnly swear [to] truthfully interpret the testimony . . .
to the utmost of his ability.” See 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)). Under Alaska Rule of Evidence 604,
[a]n interpreter is subject to the provisions of these rules relating to qualifications
as an expert and to the administration of an oath or affirmation that the interpreter will
make a true translation of all communications to and from the person for whom the
interpretation is made. In determining whether an interpreter is qualified and impartial,
the court shall inquire into and consider the interpreter’s education, certification and
experience in interpreting relevant languages; the interpreter’s understanding of and
experience in the proceedings in which the interpreter is to participate; and the
interpreter’s impartiality. Parties to the proceedings may also question the interpreter
concerning the interpreter’s qualifications and impartiality.
Federal Rule of Evidence 604 provides that “[a]n interpreter must be qualified and must
give an oath or affirmation to make a true translation.” Natekin does not challenge Korelov’s
oath.
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Following J.M.’s testimony, the judge engaged in a lengthy discussion with the
prosecution and defense as to whether J.M. should be allowed to repeat that testimony when she
testified in front of the jury. The judge referred to that hearing as “confidential” because the
prosecution was concerned that, if the defense informed Natekin’s wife that she was being
investigated, it might hinder the prosecution’s investigation of any bribery charges. The
following day, J.M.’s testimony in front of the jury included an account of the bribery attempt,
and Natekin’s attorney cross-examined her about the allegation.
Following J.M.’s testimony and in the midst of trial, the State made a third plea offer to
Natekin. Under the offer, if Natekin pleaded guilty, the State would not pursue criminal charges
against his wife. Natekin refused the State’s third offer, and the trial resumed. Natekin took the
stand and testified that, although he had used physical force against J.M., he did so only because
he believed that J.M. had stolen his wallet. Natekin claimed that he only used force to retrieve
his wallet, and nothing sexual occurred.
At the conclusion of trial, the jury found Natekin guilty as charged. The Superior Court
sentenced him to a composite term of 45 years’ imprisonment, with 30 years in jail. The judge
applied one statutory aggravating factor and no mitigating factors in determining Natekin’s
sentence.
Through counsel, Natekin appealed his conviction, arguing that: 1) the trial court violated
Natekin’s right to a public trial when it conducted confidential hearings on J.M.’s initial failure
to appear at trial; 2) the trial court interfered with Natekin’s right to call his wife as a witness;
3) the trial court erred in not allowing Natekin to cross-examine J.M. concerning her use of
controlled substances; 4) the trial court erred in not merging the second-degree sexual assault
conviction with the attempted first-degree sexual assault conviction; 5) the trial court erred in
amending the oral judgment in violation of the constitutional guarantee against double jeopardy;
and 6) the trial court imposed an excessive composite sentence. The Alaska Court of Appeal
concluded that the Superior Court must merge Natekin’s two convictions into a single conviction
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for attempted first-degree sexual assault, and remanded to that court for re-sentencing. Natekin,
2011 WL 5904467, at *17. The appellate court unanimously affirmed the judgment against
Natekin in all other respects. Id. Natekin filed a petition for hearing in the Alaska Supreme
Court, which was summarily denied on February 12, 2012.
In April 2013, Natekin filed pursuant to Alaska Rule of Criminal Procedure 35.1 a
counseled application for post-conviction relief (“PCR”) raising the following four claims of
ineffective assistance: 1) counsel failed to meaningfully inform him of the state’s second plea or
explain the risks if he declined the offer; 2) counsel failed to adequately investigate the claims
against him; 3) counsel failed to impeach J.M. at trial with prior inconsistent statements; and
4) counsel failed to prepare Natekin to testify or to advise him as to the potential consequences
of his testimony. The Superior Court held an evidentiary hearing at which it heard testimony
from Natekin, his trial counsel, the prosecutor, and the family friend counsel used to explain the
offer to Natekin. An attorney also testified on Natekin’s behalf as an expert witness.
At the conclusion of the hearing, the Superior Court judge issued a lengthy, detailed
opinion setting forth his findings of fact and conclusions of law. Although the judge found that
counsel had acted incompetently by failing to hire a court-certified interpreter to explain the
second plea offer to Natekin and by failing to adequately investigate the claims against Natekin,
the judge ultimately determined that Natekin failed to prove prejudice as a result of either
inaction. The judge further found that counsel acted competently with respect to the cross-
examination of J.M. and her preparation of and consultation regarding Natekin’s testimony.
Natekin appealed the denial of his PCR application to the Alaska Court of Appeals. On
appeal, Natekin argued that he had established prejudice as to both counsel’s failure to
adequately investigate the case and her failure to explain the second plea offer to him. He
further argued that he was prejudiced as a result of counsel’s failure to adequately prepare him to
testify and that, through her choice of defense (the success of which required Natekin’s
testimony) counsel had usurped his right to decide whether to testify. The Court of Appeal
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unanimously affirmed the PCR denial in a reasoned, unpublished opinion issued on October 23,
2019. See Natekin, 2019 WL 5425497, at *8. Natekin filed a petition for rehearing in which he
challenged the trial court’s failure to question him personally to determine whether his decision
to testify was voluntary and knowing. The Court of Appeals denied the petition. Natekin then
filed in the Alaska Supreme Court a petition for hearing raising solely the claim from his petition
for hearing—whether the trial court had failed to conduct a personal inquiry to determine if
Natekin’s decision to testify was knowing and voluntary. 3 The Supreme Court denied the
petition without comment on January 26, 2021.
Natekin then filed a pro se Petition for a Writ of Habeas Corpus to this Court dated
February 9, 2021, the timeliness of which Respondent does not contest. Docket No. 1
(“Petition”); see 28 U.S.C. § 2244(d)(1),(2). Briefing is now complete, and the Petition is ripe
for adjudication.
II. GROUNDS/CLAIMS
In his pro se Petition before this Court, Natekin raises a single claim of ineffective
assistance of counsel. Specifically, Natekin avers:
My trial attorney never gave me charging documents translated into Russian
Language. Never hired an interpreter so I could understand what I was charged with.
Never investigated or hired an investigator to investigate the facts of my case. Never
collected DNA samples that would have proved my innocence. Never informed me of
what the State’s plea offer was. My attorney forced me to testify.
3 Under Alaska law, a court is required to conduct an on-the-record inquiry as to
voluntariness where a defendant chooses not to testify. See LaVigne v. State, 812 P.2d 217
(Alaska 1991). In the petition for hearing, counsel argued only that the court had an affirmative
duty to conduct a similar inquiry to Natekin’s decision to take the stand. But under federal law,
a court does not even have a general duty to inform a defendant of the right to testify, nor does
waiver of the right to testify generally have to occur in court on the record. See United States v.
Edwards, 897 F.2d 445, 446 (9th Cir.1990). Accordingly, counsel preserved for federal habeas
review only a non-cognizable state law claim. See Mute v. Stolc, No. 4:08-cv-00010, 2011 WL
4620945, at *5-6 (D. Alaska Sept. 2, 2011).
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III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The term unreasonable is a
common term in the legal world. The Supreme Court has cautioned, however, that the range of
reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly
established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating
whether a rule application was unreasonable requires considering the rule’s specificity. The
more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.”).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
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Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
Natekin argues that he was deprived of his right to the effective assistance of counsel. To
demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must
show both that counsel’s performance was deficient and that the deficient performance
prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which
“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by
the Sixth Amendment.” Id.
The Supreme Court has explained that, if there is a reasonable probability that the
outcome might have been different as a result of a legal error, the defendant has established
prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
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standard is applied and federal courts do not engage in a separate analysis applying the Brecht
harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Natekin must show that his trial counsel’s representation was not within the range
of competence demanded of attorneys in criminal cases, and there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).
A. 	Exhaustion
As an initial matter, Respondent urges the Court to dismiss Natekin’s Petition as
unexhausted and procedurally defaulted. This Court may not consider claims that have not been
fairly presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27,
29 (2004) (citing cases). Exhaustion of state remedies requires the petition to fairly present
federal claims to the state courts in order to give the state the opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights. Duncan v. Henry, 513 U.S. 364, 365
(1995). A petitioner must alert the state courts to the fact that he is asserting a federal claim in
order to fairly present the legal basis of the claim. Id. at 365-66. To satisfy the “fairly present”
requirement, the petitioner must present his or her federal claim to “each appropriate court
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(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.
Respondent correctly argues that Natekin failed to exhaust his ineffective assistance of
counsel claim because he raised before the Alaska Supreme Court in his petition for review only
his claim challenging the trial court’s failure to question him personally as to the voluntariness of
testimony. Natekin thus did not raise before the state’s highest court any component of the
ineffective assistance claim he now raises in the Petition. This Court may not reach the merits of
procedurally defaulted claims, that is, claims “in which the petitioner failed to follow applicable
state procedural rules in raising the claims.” Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
Consequently, Natekin’s unexhausted ineffective assistance claim is procedurally defaulted from
federal habeas review and subject to denial on that basis.
B. 	Merits
Moreover, even if Natekin had exhausted fully his ineffective assistance of counsel
claim, he would not be entitled to relief on it. For the reasons discussed below, the Court also
denies relief on the merits of Natekin’s ineffective assistance claim. See 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of the State.”).
1. 	Claims relating to the use of an interpreter
Natekin first faults counsel for: 1) failing to have the charging documents translated into
Russian and 2) relying on an uncertified interpreter, Natekin’s family friend Sergiy Korelov,
during their pre-trial meetings and when the court-certified interpreter did not appear on the first
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day of trial due to a storm.4 Natekin also asserts, as he did in his PCR application, that trial
counsel “[n]ever informed [him] of what the State’s plea offer was.” The Court of Appeal
recounted the following facts underlying this claim:
As we have explained, the State made its second plea offer to Natekin shortly
before his trial began. Under the terms of this offer, Natekin would plead guilty to
second-degree sexual assault and he would receive a sentence of 10 years to serve. When
Natekin testified in support of his petition for post-conviction relief, Natekin asserted that
he was never informed of this second plea offer.
Natekin acknowledged that he had a private conference with Sheldon just before
his trial began, with Korelov serving as their interpreter. But Natekin declared that he
never understood what the purpose of this conference was. More specifically, Natekin
testified that he never understood that the State had made the second plea offer, and that
he never knew what the terms of this second offer were, until after his trial was over.
The superior court also heard testimony from the other two participants in this
pre-trial conference: Sheldon and Korelov.
Sheldon testified that, during this conference, she and Natekin had a lengthy
discussion about the State’s plea offer. Sheldon said that she and Natekin talked about
the consequences of rejecting the State’s offer and going to trial, including the possible
outcomes of the trial and the likely consequences if Natekin went to trial and was
convicted.
Korelov corroborated Sheldon's account in key respects. He testified that Sheldon
and Natekin actively discussed the potential consequences of accepting or rejecting the
State’s plea offer. And although Korelov admitted that he was not a professional or
certified interpreter, he assured the court that he had understood what Sheldon was telling
Natekin, and that he translated everything that Sheldon said.
After hearing this competing testimony, the superior court found that Sheldon’s
description of the plea discussion was credible, and that Natekin’s contrary testimony
was not. That is, the court found that Natekin had indeed discussed the State’s plea offer
with Sheldon, and that Natekin had understood both the terms and the potential
consequences of the State’s offer, including Natekin’s likely deportation to Russia if he
was convicted of felony sexual assault. The court further found that Natekin had actively
considered the State’s offer and had knowingly decided to reject it — because he
preferred “to take his chances” at trial.
Based on these findings, the superior court rejected Natekin’s claim pertaining to
the State’s second plea offer.
Natekin, 2019 WL 5425497, at *3-4.
In his Petition, Natekin renews his argument that he never understood the purpose of his
pre-trial conference and never received a competent translation of what his attorney was
explaining. He therefore contends that he did not comprehend the plea discussions, and his
decision about the plea offer was therefore unknowing, uninformed, and unintelligent. But as the
4 The record reflects that a court-certified interpreter translated for Natekin at trial,
with the exception of the first day of trial.
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Court of Appeal explained, “the superior court (after hearing competing testimony on this issue)
found that Natekin had understood the discussion, and that Natekin knowingly chose to reject
the State’s plea offer because he preferred to ‘take his chances’ at trial.” Id. at *4. “Based on
the evidence presented at the hearing, the superior court concluded that even though Korelov
was not a certified interpreter, his translation was adequate to the purpose, and Natekin
sufficiently understood the conversation to make an informed decision about the State’s plea
offer.” Id. This Court must defer to the state court’s finding unless Natekin rebuts the
presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El,
537 U.S. at 340 (“Factual determinations by state courts are presumed correct absent clear and
convincing evidence to the contrary.”).
Natekin fails to satisfy this heavy burden. “[N]o sort of factual finding[ ] is more
appropriate for deferential treatment than . . . a state court’s credibility determination.” Knaubert
v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 1986). “‘Title 28 U.S.C. § 2254(d) gives federal
habeas courts no license to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them.’” Id. (quoting Marshall v. Lonberger, 459
U.S. 422, 434 (1983)). The record fully supports the superior court’s credibility determination,
and Natekin provides no evidence that would cause the Court to question it.5 Accordingly,
Natekin is not entitled to relief on this ground.
5 Notably, the record reflects that, at the time she represented Natekin, defense
counsel had done roughly a hundred or more criminal trials in her near-decade of experience as a
criminal defense attorney. Likewise, a review of the Alaska court records shows that Natekin
pled no contest to felony driving under the influence with two priors in March 2006, about a year
and a half before the plea offer discussion at issue occurred in November 2007, and also pled to
numerous misdemeanor traffic and other violations before being charged in this case. The record
therefore supports the court’s determination that defense counsel was an experienced defense
attorney who demonstrated “willingness to fall on her sword regarding what she often stated was
her inadequate work on the case,” and that Natekin “was not a stranger to the criminal justice
system.” Docket No. 9-21 at 11, 21. The record further supports the court’s determination that
“this was not a particularly complicated case” that “turned entirely on the relative credibility of
the victim and Mr. Natekin,” and “both the relevant applicable sentences and the deportation
ramifications were quite straightforward.” Id. at 20-21.
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2. 	Failure to investigate
Natekin next alleges that trial counsel’s investigation of his case was deficient because
she never “investigated or hired an investigator” and failed to “collect[] DNA samples that
would prove [his] innocence.” In considering this claim on PCR review, the Superior Court
agreed that his trial attorney was incompetent for failing to conduct any substantive investigation
of the case prior to trial after the trial attorney testified and conceded as such. The court
nonetheless concluded that Natekin failed to established prejudice—i.e., he failed to show any
reasonable probability that any additional investigation would have uncovered evidence
favorable to Natekin’s case. On appeal, the Court of Appeals agreed, concluding that “Natekin
failed to show that more investigation would have uncovered anything material to Natekin’s case
(either favorable or unfavorable to him)” that would have affected the outcome of trial or
materially changed the plea discussions. Natekin, 2019 WL 5425497, at *5.
Natekin again fails to provide in the instant Petition any evidentiary support for his
speculative claim that he was prejudiced by counsel’s inadequate investigation. Just as his claim
was denied on state habeas review, the lack of evidentiary support is also fatal to his claim on
federal habeas review. See Woodford v. Visciotti, 537 U.S. 19, 15 (2002) (per curiam) (holding
that state habeas petitioner carries the burden of proof); Turner v. Calderon, 281 F.3d 851, 881
(9th Cir. 2002) (“self-serving statement” insufficient to raise claim for relief). Natekin is thus
not entitled to relief as to counsel’s inadequate investigation.
3. 	Coerced testimony
Finally, Natekin claims that his trial counsel forced him to testify. It appears that Natekin
renews his claim, originally raised on appeal of the denial of his PCR application, that trial
counsel chose a defense strategy that required Natekin’s testimony, thus usurping his decision of
whether to take the stand. The Court of Appeals concluded that Natekin failed to raise that claim
on PCR review in the Superior Court, and it was therefore not preserved for appeal. Natekin,
2019 WL 5425497, at *7.
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The forfeiture of an issue, as matter of state procedure, is an independent and adequate
state law ground for blocking federal habeas corpus review. See Stewart v. Smith, 536 U.S. 856,
861 (2002). The Supreme Court has recognized that a state court’s ruling that a litigant failed to
preserve an issue may be treated as forfeiture of that issue on federal habeas review. Wainwright
v. Sykes, 433 U.S. 72, 85-86 (1977); cf. Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir.
2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004). Consequently, Natekin is
likewise barred from raising that claim here.
In any event, the claim also fails on its merits. As the Court of Appeals explained:
[I]t was Natekin who told [trial counsel], in an early interview, that he used force
against J.M., but only because he was trying to retrieve his wallet from her. Given
Natekin’s version of events, [trial counsel’s] options were limited. And in the superior
court, Natekin never identified an alternative defense strategy that would not need to be
supported by his testimony. Indeed, Natekin’s own expert witness — an experienced
defense attorney—testified that Natekin’s case was the type of case where “[Natekin] had
to testify in order to have any defense.”
Natekin, 2019 WL 5425497, at *7.
Moreover, the Superior Court found that “Mr. Natekin did speak to his attorney on
several occasions and at some length about the need for and risks of his testimony. And he was
not told to testify—he was given the option to do so.” Docket No. 9-21 at 37. Natekin provides
no evidence—much less clear and convincing evidence—that would override the presumption of
correctness this Court must afford that factual finding. 28 U.S.C. § 2254(e)(1); Miller-El, 537
U.S. at 340. In sum, Natekin is not entitled to relief on any argument advanced in support of his
ineffective assistance claim.
C. 	Certificate of Appealability
Having determined that habeas relief is not warranted, the Court must now consider
whether to grant a certificate of appealability, which is required for a party to appeal a district
court’s decision on a § 2254 petition. See Rule 11 of the Rules Governing Section 2254 Cases in
the United States District Courts; FED . R. APP . P. 22(b)(1). A “certificate of appealability may
issue . . . only if the applicant has made a substantial showing of the denial of a constitutional
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right.” 28 U.S.C. § 2253(c)(2). To satisfy the showing required by Section 2253(c)(2), the
petitioner must show that reasonable jurists could debate whether the petition should have been
resolved differently or that the issues presented are “adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Where, as here, a court has
dismissed a petition or claim on procedural grounds, in addition to showing that the petition
“states a valid claim of the denial of a constitutional right,” as explained above, the petitioner
must also show that reasonable jurists would find debatable whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484. This standard “requires an overview of the claims in
the habeas petition and a general assessment of their merits,” but a court need not determine that
the petitioner would prevail on appeal. Miller–El, 537 U.S. at 336.
This Court found here that Natekin’s Petition was not fully exhausted because the
petition for hearing in the Alaska Supreme Court on PCR review did not re-assert Natekin’s
ineffective assistance claims raised before the Court of Appeals. Because it appears that Natekin
can no longer raise his ineffective assistance claims to the Alaska Supreme Court, those claims
are procedurally defaulted. The Ninth Circuit has explained, however, that:
[i]f a petitioner has procedurally defaulted on a claim, a federal court may
nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the
claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates
that not hearing the claim would result in a “fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640; Sawyer v. Whitley, 505
U.S. 333, 339-40, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992). An objective factor outside
of a petitioner’s control (e.g., ineffective assistance of counsel or a basis for the claim
that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S.
478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); McCleskey v. Zant, 499 U.S. 467,
497, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). The petitioner can meet the prejudice
prong if he demonstrates “that the errors . . . worked to his actual and substantial
disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.”
White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S.
152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)). A petitioner can demonstrate a
fundamental miscarriage of justice by “establish[ing] that under the probative evidence
he has a colorable claim of factual innocence.” Sawyer, 505 U.S. at 339, 112 S. Ct. 2514,
120 L. Ed. 2d 269 (quotation marks omitted).
Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011).
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Having reviewed the record thoroughly, the Court concludes that reasonable jurists could
find debatable whether Natekin’s procedural default should be excused due to appointed
counsel’s failure to raise the ineffective assistance claim in the petition for hearing, and that at
least one issue presented is adequate to deserve encouragement to proceed further. Accordingly,
the Court will grant a certificate of appealability solely with respect to Natekin’s claim that
counsel was ineffective for failing to hire a court-certified interpreter for his discussions with
counsel regarding the State’s second plea offer.
D. 	Renewed Motion for Counsel (Docket No. 14)
Finally, Natekin argues that he needs the assistance of appointed counsel to protect his
rights and file an amended reply in this case. The Court notes, however, that it has access to and
has reviewed his underlying case record, including the relevant transcripts of the trial and the
evidentiary hearing on his petition for post-conviction relief, as well as his counseled direct
appeal and counseled petition for post-conviction relief. Natekin has now been represented by
two attorneys in raising these claims in his state PCR application. He fails to show that the
interests of justice require this Court to appoint a third such attorney here. Accordingly, the
Court will not reconsider its prior order at Docket No. 5 denying Natekin’s request for the
appointment of counsel in these proceedings.
But because the Court has granted a certificate of appealability as to Natekin’s claim that
counsel was ineffective for failing to hire a court-certified interpreter for the discussion
regarding the State’s second plea offer, Natekin now has the right to appeal this Court’s decision
with respect to that issue. Should Natekin choose to file a notice of appeal in this Court within
thirty (30) days of the date of this Order, that action will initiate his appeal in the Ninth Circuit
Court of Appeals. See FED . R. APP . P. 4(a)(1)(A). If Natekin wishes to have counsel represent
him on appeal, he should then re-file his request for counsel in the Ninth Circuit, and his request
should be accompanied by an updated Form 23 Financial Affidavit similar to the one he
submitted to this Court.
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V. CONCLUSION AND ORDER
Natekin is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Renewed Motion for the Appointment of
Counsel at Docket No. 14 is DENIED WITHOUT PREJUDICE to renewing that request
before the Ninth Circuit Court of Appeals.
IT IS FURTHER ORDERED THAT the Court issue a Certificate of Appealability
solely with respect to Natekin’s claim that counsel was ineffective for failing to hire a court-
certified interpreter for discussions with counsel regarding the State’s second plea offer. 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, 537 U.S. at
327)). Any further request for a Certificate of Appealability must be addressed to the Ninth
Circuit Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: July 8, 2021.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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