Holmberg v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ARNOLD HOLMBERG,
Petitioner,
vs.
EARL HOUSER,
Respondent.
Case No. 3:21-cv-00082-RRB
ORDER of DISMISSAL
Arnold 	Holmberg, 	representing 	himself 	from 	Goose 	Creek
Correctional Center, has filed a habeas petition under 28 U.S.C. § 2241, claiming
that he is challenging his pretrial detention in “3AN-20-07724CR.”1 Mr. Holmberg
also has filed an Application to Proceed in District Court Without Prepaying Fees
or Costs, but he did not file a certified copy of his prison trust account statement,
showing that he cannot afford the $5.00 filing fee in this case.2
The Court takes judicial notice3 that there is no Alaska State Court
public record of a case numbered 3AN-20-07724CR, but the records show that
1 Docket 1.
2 Docket 3; Local Civil Rule 3.1(c)(3); Local Habeas Rule 3.1 (referring to former Local
Civil Rule 4.2).
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. . . .” Black’s Law Dictionary
(11th ed. 2019); see also Foster Poultry Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F.
Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts routinely take judicial notice of publicly
available records . . . from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
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Mr. Holmberg is currently a defendant in several open criminal cases, all involving
misdemeanor charges: 	Municipality of Anchorage v. Arnold Jay Holmberg, 3AN-
19-04827CR, 5/15/19 date of offenses (unauthorized entry, and two counts of
unlawful contact with victim/witness); Municipality v. Holmberg, 3AN-20-03152CR,
4/16/20 date of offense (“Assault-Words/Conduct Create Fear of Inj”); Municipality
v. Holmberg, 3AN-20-08158CR, 10/17/20 date of offenses (violating conditions of
release, 	unlawful 	contact 	with 	victim/witness, 	resisting 	arrest 	by 	hiding);
Municipality v. Holmberg, 3AN-20-07643CR, 10/1/20 date of offenses (two counts
each of violating conditions of release, obstructing justice by fleeing, and unlawful
contact with victim/witness).4
The state court records show that, after his arrest on May 2, 2020, in
the cases numbered 3AN-19-04827CR and 3AN-20-03152CR, $1,000 bail was
posted, and on July 15, 2020, Mr. Holmberg was released from incarceration; but
on October 18, 2020, Mr. Holmberg was arrested in 3AN-20-07643CR and 3AN-
20-08158CR, on charges that include violating conditions of release and unlawful
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
4 https://records.courts.alaska.gov/eaccess/searchresults; see also id., Rhonda Peters v.
Arnold Jay Holmberg, 3AN-19-00211CI (short-term protective order issued against
Mr. Holmberg, 1/22/19 – 2/11/19; long-term order denied, after petitioner failed to
appear).
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contact with a victim or witness, with bail set at $3,000.5 	Mr. Holmberg currently
appears to be incarcerated.6
On April 6, 2021, in an updated Special Order regarding COVID-19
and Criminal Jury Trials, the Chief Justice of the Supreme Court for the State of
Alaska stated that, “[a]s previously ordered, misdemeanor jury trials may resume
on April 19, 2021 under the direction of the presiding judge.”7 	A change of plea
hearing held on April 7, 2021, with a pretrial conference scheduled for May 3, 2021,
in all of Mr. Holmberg’s cases.8
Mr. Holmberg asserts that he has been incarcerated for eight
months as a pretrial detainee.9 He presents four grounds for relief:
1. 	Mr. Holmberg claims “Unconstitutional Confinement” for “doing
felony time [for a misdemeanor charge] . . . due to the corruption in the state court,
DA, attorneys . . .”10
5 See https://records.courts.alaska.gov/eaccess/searchresults (Special Order No. 8259),
https://public.courts.alaska.gov/web/covid19/docs/socj-2021-8259.pdf.
6 See https://vinelink.vineapps.com/search/AK/Person.
7 https://public.courts.alaska.gov/web/covid19/docs/socj-2021-8259.pdf (4/6/21 Special
Order, referring to 3/1/21 Order 8242 	).
8 https://records.courts.alaska.gov/eaccess/searchresults.
9 Docket 1 at 7.
10 Id. at 6–7.
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2. 	Mr. Holmberg asserts a “Speedy Trial Violation Clause,” under
18 U.S.C. § 3161(h), an exclusionary part of the Speed Trial Act pertaining to
federal criminal trials,11 claiming that two of his lawyers “avoid[ed] [him]. They use
Covid-19 for delays after delays without [his] consent. 	8 months is one year in
state time. . . . All they want is for [him] to take a deal – and avoid [his] speedy trial
[rights under] U.S. v. Olsen12 [and] McNeely v. Blanas, 336 F.3d 822.”13
3. Mr. Holmberg claims a violation of his right to Due Process, stating
that there is “only corruption in the state judicial system. . . . Covid-19 is not above
11 See Bloate v. United States, 559 U.S. 196, 198–99 (2010) (“The Speedy Trial Act of
1974 (Speedy Trial Act or Act), 18 U.S.C. § 3161 et seq., requires that a criminal
defendant's trial commence within 70 days after he is charged or makes an initial
appearance, whichever is later, see § 3161(c)(1), and entitles him to dismissal of the
charges if that deadline is not met, § 3162(a)(2). 	The Act, however, excludes from the
70–day period delays due to certain enumerated events. § 3161(h).”).
12 United States v. Olsen, 494 F.Supp.3d 722 (C.D. Cal. 2020), concerning the Speedy
Trial Act in federal cases, was recently overruled by the Court of Appeals for the Ninth
Circuit. United States v. Olsen, ___ F.3d ___, 2021 WL 1589359 (9th Cir. April 23, 2021)
(“The Speedy Trial Act and our case law are silent as to what non-statutory factors district
courts should generally consider. 	Nevertheless, in the context of the COVID-19
pandemic, we find relevant the following non-exhaustive factors: (1) whether a defendant
is detained pending trial; (2) how long a defendant has been detained; (3) whether a
defendant has invoked speedy trial rights since the case’s inception; (4) whether a
defendant, 	if 	detained, 	belongs 	to 	a 	population 	that 	is 	particularly 	susceptible 	to
complications if infected with the virus; (5) the seriousness of the charges a defendant
faces, and in particular whether the defendant is accused of violent crimes; (6) whether
there is a reason to suspect recidivism if the charges against the defendant are dismissed;
and (7) whether the district court has the ability to safely conduct a trial.” Id. at *7).
13 Docket 1 at 7.
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the law . . . [and that he has been] proceeding at all times . . . under t[h]reat, duress,
and coercion and unlawful seizure and unlawful imprisonment.”14
4. Mr. Holmberg asserts “Obstruction of Justice,” claiming that he has
had “[n]o meaningful participation with the Court, Counsel, Clerk – no defense, no
due process, no full discovery, no speedy trial, no marshal law, use Covid-19 to
avoid [his] civil & constitutional rights.”15
For relief, Mr. Holmberg requests this Court to “release & drop all
charges with prejudice.”16
SCREENING REQUIREMENT
Federal 	courts 	have 	general 	habeas 	jurisdiction 	under 	28
U.S.C. § 2241.17 A petitioner may properly challenge state pretrial detention under
14 Id.
15 Id. at 8; but see Olsen, ___ F.3d at ___, 2021 WL 1589359, at *2 (“The global COVID-
19 pandemic has proven to be extraordinarily serious and deadly. In response, many
state and local governments entered declarations curtailing operations of businesses and
governmental entities that interact with the public. 	Beginning on March 13, 2020, the
Central District of California—in light of the exigent circumstances brought on by the
pandemic and the emergencies declared by federal and state officials—issued a series
of emergency orders [including the] suspension of criminal jury trials, which began on
March 13, 2020.”) (citations omitted).
16 Docket 1 at 8.
17 See Magana-Pizano v. INS, 200 F.3d 603, 608 & n.4 (9th Cir. 1999).
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§ 2241.18 	But a court must “promptly examine” a habeas petition.19 	“If it plainly
appears 	from 	the 	motion, 	any 	attached 	exhibits, 	and 	the 	record 	of 	prior
proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion. . .”
In 	conducting 	its 	review 	of 	a 	self-represented 	litigant’s
pleadings, a court must liberally construe the pleadings and give the petitioner the
benefit of the doubt.20
DISCUSSION
A writ of habeas corpus allows an individual to test the legality of being
detained or held in custody by the government.21 	The writ “is a vital ‘instrument
for the protection of individual liberty’ against government power.”22
Under 28 U.S.C. § 2241, this Court may grant a writ of habeas corpus
to a prisoner “in custody in violation of the Constitution or laws or treaties of the
18 See Stow v. Murashige, 389 F.3d 880, 885–88 (9th Cir. 2004).
19 Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. The same procedural rules for 28 U.S.C. § 2254 and § 2255 govern 28 U.S.C.
§ 2241.
20 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
21 Rasul v. Bush, 542 U.S. 466, 474 (2004).
22 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015) (quoting Boumediene v. Bush,
553 U.S. 723, 743 (2008)).
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United States.”23 This habeas statute provides federal courts with general habeas
corpus jurisdiction.24 	28 U.S.C. § 2241 is the proper avenue for a state prisoner
who wishes to challenge his state custody without a state judgment.25 	When
examining a § 2241 petition from a pretrial detainee claiming a violation of his or
her right to a speedy trial, a significant delay in the proceedings must be shown.26
Mr. 	Holmberg 	claims 	that 	he 	has 	been 	incarcerated 	for 	eight
months.27 	In McNeely v. Blanas,28 the Ninth Circuit found a delay of
three years to be substantial, such that prejudice was presumed, triggering an
inquiry under Barker v. Wingo.29 	The four-part test articulated by the Supreme
Court in Barker is used to determine whether government delay had abridged a
defendant’s 	Sixth 	Amendment 	right 	to 	a 	speedy 	trial.30 	The 	factors 	to 	be
23 28 U.S.C. § 2241(c)(3).
24 See Magana-Pizano, 200 F.3d at 608 & n.4.
25 Stow, 389 F.3d at 885–88 (quoting White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.
2004) (“By contrast, the general grant of habeas authority in § 2241 is available for
challenges by a state prisoner who is not in custody pursuant to a state court judgment-
for example, a defendant in pre-trial detention or awaiting extradition.”)).
26 See Barker v. Wingo, 407 U.S. 514, 530–31 (1972).
27 Docket 1 at 7.
28 336 F.3d 822, 826 (9th Cir. 2003).
29 Barker, 407 U.S. at 530.
30 McNeely, 336 F.3d at 826 (citing Doggett v. United States, 505 U.S. 647, 652 n.1
(1992)).
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considered in a Barker inquiry include: “(1) the length of the delay; (2) the reasons
for the delay; (3) the accused’s assertion of the right to speedy trial; and (4) the
prejudice caused by the delay. No single factor is necessary or sufficient.”31
I. 	Appropriate Relief
For relief, Mr. Holmberg requests his “release & [that] all charges
against him be dropped] with prejudice.”32 	The due process clauses of the Fifth
and Fourteenth Amendments bar pretrial detention unless detention is necessary
to serve a compelling government interest.33 Thus, although a state may “impose
conditions on an arrestee’s release, such as bail . . . [b]ail set at a figure higher
than an amount reasonably calculated to fulfill [its] purpose [of assuring the
presence of the accused at trial] is ‘excessive’ under the Eighth Amendment.”34
Mr. Holmberg, of course, has been granted release on bail, but the state records
show that he violated the conditions of his release.
31 Id. (citing Barker, 407 U.S. at 530); see also United States v. Sheikh, No. 2:18-cr-00119
WBS, ___ F.Supp.3d ___, 2020 WL 5995226, at *3 (E.D. Cal. Oct. 9, 2020) (Discussing
the right to a speedy trial in a federal criminal case, explaining that “the coronavirus alone
does not give the court the liberty to simply exclude time. Rather, the court must conduct
a ‘deliberate inquir[y] into whether an ends-of-justice continuance is justified by the
circumstances surrounding a particular case.’”) (citation omitted).
32 Id.
33 Reem v. Hennessy, Case No. 17-cv-06628-CRB, 2017 WL 6765247, at *1 (N.D. Cal.
Nov. 29, 2017) (unpublished) (citing Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th
Cir. 2014)).
34 Id. (quoting Lopez-Valenzuela, 770 F.3d at 777).
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Mr. Holmberg’s request, that the Court require charges against him in
the state courts be dismissed, is not appropriate.35 	A speedy trial claim may be
reviewed under § 2241 if a pretrial detainee is seeking to compel the state to bring
him to trial, rather than seeking dismissal of the charges.36 	Thus, although a
federal court can order a state court to bring a petitioner to trial, federal courts do
35 Id. at *2 (“A number of circuit courts have entertained habeas petitions alleging
unconstitutional detention or excessive bail prior to trial. See Atkins v. People of the State
of Mich., 644 F.2d 543, 549 (6th Cir. 1981) (‘The protection against unreasonable bail
pending trial has been found by the federal courts to be one of the few rights . . . whose
vindication may 	be 	asserted prior 	to 	trial, either by direct appeal 	of an adverse
interlocutory order or by a petition for habeas corpus.’) (emphasis added); accord, Finetti
v. Harris, 609 F.2d 594, 599 (2d Cir. 1979); Jenkins v. Harvey, 634 F.2d 130, 132 (4th
Cir. 1980); Meechaicum v. Fountain, 696 F.2d 790, 792 (10th Cir. 1983).”); Belcher v.
Nevada, 	3:20-cv-00554-MMD-CLB, 	2020 	WL 	6731725, 	at 	*3 	(D. 	Nev. 	Oct. 	19,
2020), report and recommendation adopted, No. 3:20-cv-00554-MMD-CLB, 2020 WL
6729279 (D. Nev. Nov. 16, 2020) (slip op.) (“When a pretrial detainee challenges a bail
determination, the Supreme Court and the Ninth Circuit have held that a writ of habeas
corpus is an appropriate remedy. Stack [v. Boyle], 342 U.S. 1, 6–7 (1951); Arevalo v.
Hennessy, 882 F.3d 763, 767 ([9th Cir.] 2018) (where pretrial detainee alleged due
process violations regarding bail, and Younger abstention was not appropriate because
detainee properly exhausted state remedies, judgment was reversed and remanded with
instructions to grant a conditional writ of habeas corpus).”); compare Davie v. Villanueva,
No. CV 20-6580 MWF (PVC), 2020 WL 4901611, at *3 (C.D. Cal. Aug. 20, 2020) (“[T]o
the extent that he is seeking release on zero or reduced bail prior to trial due to health
concerns arising from the coronavirus pandemic, this claim overlaps with his excessive
bail claim. Furthermore, state courts can and do offer an adequate forum to litigate such
claims.”) (noting that a state appellate court granted “in part pretrial detainee’s habeas
petition seeking release on bail and order[ed] trial court to hold a hearing to ‘consider
entering a new and different order setting bail consistent with the [county’s] June 23, 2020
amended bail order,’ which was adopted to address inmate overcrowding during the
COVID-19 pandemic).”) (citation omitted).
36 See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489–90 (1973)
(“Petitioner does not, however, seek at this time to litigate a federal defense to a criminal
charge, but only to demand enforcement of the Commonwealth’s affirmative constitutional
obligation to bring him promptly to trial.”) (citation omitted).
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not order that state charges be dismissed.37 	The Court will not, therefore, address
the merits of any underlying charges against Mr. Holmberg, or order that any state
criminal charges against Mr. Holmberg be dismissed for any of the reasons set
forth in his Petition.
II. 	Abstention
The 	Younger 	abstention 	doctrine 	provides 	that
federal courts may not generally exercise jurisdiction when doing 	so would
interfere with state judicial proceedings.38 The core of Younger abstention is that
a federal court cannot interfere with pending state court criminal proceedings,
absent a “showing of bad faith, harassment, or any other unusual circumstance
that would call for equitable relief.”39 A federal court
must abstain under Younger if four requirements are met:
(1) 	a 	state-initiated 	proceeding 	is 	ongoing; 	(2) 	the
proceeding implicates 	important state interests; (3) the
37 Cf. Olsen, ___ F.3d at ___, 2021 WL 1589359, at *9 (“The pandemic is an extraordinary
circumstance and reasonable minds may differ in how best to respond to it. The District
Court here, however, simply misread the Speedy Trial Act’s ends of justice provision in
dismissing Olsen’s indictment with prejudice.”).
38 See Younger v. Harris, 401 U.S. 37, 41 (1971).
39 Younger, 401 U.S. at 54; see also Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)
(In Perez v. Ledesma, 401 U.S. 82, 85 (1971), the Supreme Court “limited the category
of ‘extraordinary circumstances’ to encompass only ‘cases of proven harassment or
prosecutions undertaken by state officials in bad faith without hope of obtaining a valid
conviction,’ or where ‘irreparable injury can be shown.’”); Brown v. Ahern, 676 F.3d 899,
901 (9th Cir. 2012) (“Consistent with this observation, we specifically rejected in Carden
the argument that a claimed violation of the Speedy Trial Clause . . . sufficed in and of
itself as an independent ‘extraordinary circumstance’ necessitating pre-trial habeas
consideration.”) (citing Carden at 84).
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federal 	plaintiff 	is 	not 	barred 	from 	litigating 	federal
constitutional issues in the state proceeding; and (4) the
federal court action would enjoin the proceeding or have
the practical effect of doing so, i.e., would interfere with
the 	state 	proceeding 	in 	a 	way 	that 	Younger
disapproves.40
The Court of Appeals for the Ninth Circuit has directly addressed
abstention, regarding the claim of a state court violating the right to a speedy trial,
explaining:
Younger does not “require[ ] a district court to abstain
from 	hearing 	a 	petition 	for 	a 	writ 	of 	habeas 	corpus
challenging the conditions of pretrial detention in state
court” where (1) the procedure challenged in the petition
is distinct from the underlying criminal prosecution and
the challenge would not interfere with the prosecution, or
(2) 	full 	vindication 	of 	the 	petitioner’s 	pretrial 	rights
requires intervention before trial.41
The State of Alaska has an important interest in enforcing
its criminal laws, and Mr. Holmberg’s criminal cases in the state courts remain
ongoing. 	Mr. Holmberg’s claims should be addressed in his state court criminal
proceedings, where he may also continue to address release on bail, if he believes
he can adhere to the conditions of release.42 This Court should not interfere with
40 San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
41 Page v. King, 932 F.3d 898, 903 (9th Cir. 2019) (citing Arevalo, 882 F.3d at 764, 766–
67).
42 See Brown, 676 F.3d at 900–01 (A “federal court’s exercise of jurisdiction over
a habeas petition that raises an affirmative defense to state prosecution before trial and
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the 	trial 	court’s 	fact-finding 	responsibilities 	and 	legal 	decisions 	in 	the 	state
proceedings, unless “full vindication of the petitioner’s pretrial rights requires
intervention before trial.”43 This does not appear to be such a case.
III. 	Exhaustion
Exhaustion is required under common law before bringing a federal
petition for a writ of habeas corpus under 28 U.S.C. § 2241.44 	Although there is
no statutory exhaustion requirement for a petition brought under § 2241, principles
of federalism and comity require the court to abstain until all state criminal
proceedings are completed, and the petitioner exhausts the available state judicial
remedies, unless extraordinary circumstances warranting federal intervention prior
conviction can have the same effect as a direct injunction of ongoing state proceedings.”)
(citing Carden, 626 F.2d at 83).
43 Page, 932 F.3d at 903.
44 See Braden, 410 U.S. at 488 (allowing petitioner to raise speedy trial claim prior to trial
under 28 U.S.C. § 2241, where he had exhausted available state remedies); Stow, 389
F.3d at 886; Reem, 2017 WL 6765247, at *2 (“The exhaustion requirement addresses the
same concerns of comity between federal and state courts as Younger does. See
Dickerson v. State of La., 816 F.2d 220, 225–26 (5th Cir. 1987) (‘The exhaustion doctrine
of section 2241(c)(3) was judicially crafted on federalism grounds in order to protect the
state courts’ opportunity to confront and resolve initially any constitutional issues arising
within their jurisdictions as well as to limit federal interference in the state adjudicatory
process.’).”).
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to a state criminal trial are found. 	A violation of the right to a speedy trial is not,
alone, an extraordinary circumstance warranting federal intervention.45
The Court may only address Mr. Holmberg’s claims after he fully
exhausts the available state court remedies,46 and upon a showing that this Court
should not abstain from addressing his claims.
Therefore, IT IS HEREBY ORDERED:
1. 	This case is DISMISSED without prejudice to exhausting claims
in the state courts.
2. 	The Application to Proceed without Prepaying Fees or Costs,
at Docket 3, is DENIED.47
45 Carden, 626 F.2d at 83-85; https://public.courts.alaska.gov/web/covid19/docs/socj-
2021-8259.pdf (Special Order 8259, reiterating that misdemeanor trials could resume on
April 19, 2021).
46 See, e.g., Stack, 342 U.S. at 6–7 (“While habeas corpus is an appropriate remedy for
one held in custody in violation of the Constitution, . . . 28 U.S.C.A. § 2241(c)(3), the
District Court should withhold relief in this collateral habeas corpus action where an
adequate remedy available in the criminal proceeding has not been exhausted.”) (citation
omitted); Webb v. Simpson, Case No. 3:19-CV-5561-BHS-DWC, 2020 WL 589818 at *1
(W.D. Wash. Jan. 6, 2020) (slip op.) (“Petitioner alleges his constitutional rights are being
violated, including violations of his right to be free from excessive bail and his right to a
speedy trial . . . . Petitioner has not shown there is an absence of available state corrective
processes or that circumstances exist rendering any state process ineffective.”).
47 Mr. Holmberg did not file the required certified copy of his prison trust account
statement, showing that he cannot afford the $5.00 filing fee in this case. Docket 3; Local
Civil Rule 3.1(c)(3); Local Habeas Rule 3.1 (referring to former Local Civil Rule 4.2).
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3. 	The Clerk of Court is directed to enter Judgment accordingly.
Dated at Anchorage, Alaska this 30th day of April, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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