Mark v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOE HOMER MARK,
Petitioner,
v.
EARL HOUSER,
Respondent.
Case No. 3:21-cv-00240-RRB
ORDER OF DISMISSAL
Joe Homer Mark, a self-represented prisoner, filed a Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2254 on October 22, 2021.1 	Additionally,
Mr. Mark filed a Motion Requesting Representation Through the United States
Attorney’s Office.2 He has paid the $5.00 filing fee.
In accordance with federal law, the Court conducts the following preliminary
review of this petition.3
Mr. Mark alleges that his court-appointed counsel in a prior Petition for Writ
of Habeas Corpus Under 28 U.S.C. § 2254 was ineffective.4 	He states, “I
1 Docket 1.
2 Docket 2.
3 Rule 4 of the Federal Rules Governing § 2254 Proceedings (“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 and direct the clerk to notify the
petitioner.”)
4 See Docket 1.
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Order of Dismissal
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challenge the incompetent and [non-existent] counsel of Habeas Petition originally
filed.”5 He further alleges:
Court Appointed counsel Danee Pontious, failed to timely
file a notice of appeal in the [Ninth Circuit Court of
Appeals and] instead filed a motion for [a] [C]ertificate of
Appealability in the U.S. Dist. Court thus the untimely
notice of appeal denied further review by the [Ninth
Circuit Court of Appeals] and I have thereafter been
abandoned by counsel.6
Mr. 	Mark 	alleges 	“I 	was 	denied 	the 	right 	to 	appeal 	from 	this 	court 	by 	my
incompetent attorney in this court.”
The Court takes judicial notice of Mr. Mark’s prior Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2254 in Mark v. Rabeau, Case No. 3:13-cv-00207-TMB
and subsequent appeal Mark v. Rabeau, Case No. 16-35600.7
28 U.S.C. § 2254(a) provides a legal pathway for an individual held in
custody pursuant to a state court judgment to collaterally challenge the conviction
“on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 	However, 28 U.S.C. § 2254(i) prohibits ineffective
5 Docket 1 at 4.
6 Docket 1 at 5.
7 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 L AW 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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Case No. 3:21-cv-000240-RRB; Mark v. Houser
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assistance 	of 	counsel 	claims 	from 	either 	federal 	or 	state 	post-conviction
proceedings as grounds for relief under Section 2254.8
Mr. Mark alleges that his court-appointed counsel in his prior 28 U.S.C.
§ 2254 was ineffective by failing to timely file a Notice of Appeal. 	Regardless of
the facts, this claim is barred by statute.
Mr. Mark has not presented proper grounds for a petition under 28 U.S.C.
§ 2254. Therefore, Mr. Mark’s petition must be dismissed.
IT IS THEREFORE ORDERED:
1. The Petition at Docket 1 is DISMISSED WITH PREJUDICE.
2. All pending motions are DENIED AS MOOT.
3. The Clerk of Court shall enter a judgment accordingly.
4. A Certificate of Appealability shall not issue.
DATED this 29th day of November, 2021 at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
8 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or
State 	collateral post-conviction 	proceedings shall 	not 	be 	a 	ground for relief 	in 	a
proceeding arising under section 2254.”).
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