Clayton v. Angol

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TERRY ANTHONY CLAYTON,
Petitioner,
v.
SARAH ANGOL,
Respondent.
Case No. 3:24-cv-00026-JMK
ORDER OF DISMISSAL
On January 23, 2024, Terry Anthony Clayton , a self-represented prisoner,
filed a Petition Under 28 U.S.C. § 2254 (“Section 2254”) for Writ of Habeas Corpus
by a Person in State Custody and a motion for court-appointed counsel.1 	The
Court takes judicial notice2 of Mr. Clayton’s underlying criminal conviction, his
subsequent state court appeals, and post-conviction proceedings.3
SCREENING REQUIREMENT
Under Rule 4 of the Rules Governing Section 2254 Cases, a federal court is
required to conduct a preliminary review of all petitions for writ of habeas corpus
1 Dockets 1–2.
2 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 Fed. R. Evid. 201; 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).
3 The docket records of the Alaska Trial Courts and the Alaska Appellate Courts may be accessed
online at https://courts.alaska.gov/main/search-cases.htm.
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filed by state prisoners. 	A court must dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court.”4 	Upon screening, it plainly appears that Mr. Clayton is not
entitled to habeas relief pursuant 	to Section 2254, so his 	petition 	must be
dismissed.
DISCUSSION
I. 	Procedural History
In 1987, Mr. Clayton was convicted of first-degree murder.5 	The State of
Alaska Court of Appeals affirmed Mr. Clayton’s convictions on direct appeal in an
unpublished memorandum decision, referring to the evidence against Mr. Clayton
as “overwhelming.”6 On May 8, 2015, Mr. Clayton received a letter from the Alaska
Public Defender Agency explaining that a nationwide review of cases involving
microscopic hair comparisons had determined that the FBI expert who testified at
Mr. Clayton’s trial had provided testimony that “exceeded the limits of science.”7
On October 14, 2015, Mr. Clayton filed an application for post-conviction relief in
state court arguing his conviction should be vacated due to the tainted FBI
testimony.8 	The State filed a motion to dismiss Mr. Clayton’s application as
4 Rule 4 of the Rules Governing Section 2254 Cases.
5 State v. Clayton, Case No. 3AN-S86-06491CR.
6 Clayton v. State, 1989 WL 1594949 (Alaska App. 1989).
7 Docket 1 at 5.
8 In the Matter of: Clayton, Terry A vs. State of Alaska, Case No. 3AN-15-10248CI.
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untimely. 	In its motion to dismiss, the State made clear that, unlike the federal
government, it was not waiving any statute of limitations or procedural defenses to
these 	post-conviction 	relief 	claims 	based 	on 	allegedly 	tainted 	FBI 	expert
testimony.9 The Superior Court dismissed Mr. Clayton’s application as untimely.10
The Alaska Court of Appeals affirmed the dismissal on August 18, 2023.11 	On
December 29, 2023, the Alaska Supreme Court denied Mr. Clayton’s Petition for
Hearing.12
II. 	Federal Habeas Relief
To respect federal-state dual sovereignty, the availability of federal habeas
relief is narrowly circumscribed.13 Federal courts “reviewing the constitutionality of
a state prisoner’s conviction and sentence are guided by rules designed to ensure
that state-court judgments are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our system of federalism.”14
Before a federal court reaches the merits of a habeas claim arising from state
criminal proceedings, it must consider certain preliminary issues, such as the
exhaustion 	requirement 	and 	the 	procedural 	default 	doctrine. 	Together, 	the
9 Docket 1-1 at 16.
10 Docket 1 at 6; Docket 1-1 at 1–9.
11 Clayton v. State, A-13013, 535 P.3d 909 (Alaska App. 2023).
12 Docket 1-1 at 7; Clayton v. State, Case No. S-18863 (Alaska 2023).
13 Shinn v. Ramirez, 596 U.S. 366 (2022).
14 Martinez v. Ryan, 566 U.S. 1, 9 (2012).
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exhaustion requirement and the procedural default doctrine promote federal-state
comity by affording States “an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights,” and by protecting against “the significant
harm to the states that results from the failure of federal courts to respect” state
procedural rules.15
A state prisoner must properly pursue his federal claims through one
complete round of the state’s established direct appeal process or post-conviction
proceedings before a federal court may consider an application for a writ of habeas
corpus.16 Here, Mr. Clayton has exhausted his state court remedies with respect
to his post-conviction relief claims. However, he has been procedurally defaulted
from pursuing his federal claims in state court pursuant to an independent and
adequate state procedural rule—Alaska Statute § 12.72.020(b)(2). Moreover, if a
state court applies a procedural bar, but goes on to alternatively address the merits
of any federal claims, those claims are still barred from federal review.17 	In the
case of a procedural default such as this, federal habeas review of the claims is
15 Coleman, 501 U.S. at 750.
16 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson,
501 U.S. 722, 731 (1991).
17 See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal
claim in an alternative holding. By its very definition, the adequate and independent state ground
doctrine requires the federal court to honor a state holding that is a sufficient basis for the state
court’s judgment, even when the state court also relies on federal law . . . . In this way, a state
court may reach a federal question without sacrificing its interests in finality, federalism, and
comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court’s
application of a procedural rule is not undermined where, as here, the state court simultaneously
rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
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barred unless a petitioner can demonstrate (1) cause for the default and actual
prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence.18
(a) 	Cause and actual prejudice
To 	satisfy 	the 	“cause” 	prong 	of 	the 	cause 	and 	prejudice 	standard, 	a
petitioner must show that some objective factor external to the defense prevented
him from complying with the state’s procedural rule.19 	To show “prejudice,” a
petitioner “must shoulder the burden of showing, not merely that the errors at his
trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting 	his 	entire trial with error of constitutional
dimensions.”20 	The Supreme Court has “refrained from giving precise content to
the term prejudice.”21 	However, the showing of prejudice is significantly greater
than the showing necessary for plain error for direct appeals.22
(b) 	Miscarriage of justice/actual innocence
The miscarriage of justice exception to procedural default “is limited to those
extraordinary 	cases 	where 	the 	petitioner 	asserts 	his 	[actual] 	innocence 	and
establishes that the court cannot have confidence in the contrary finding of guilt.”23
18 28 U.S.C. § 2254(c)(2)(B); Martinez v. Ryan, 566 U.S. 1 (2012); Schlup v. Delo, 513 U.S. 298,
321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
19 Murray v. Carrier, 477 U.S. at 488.
20 United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
21 Frady, 456 U.S. at 168 (internal quotations omitted).
22 See Murray v. Carrier, 477 U.S. at 493–94.
23 Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original).
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Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to
support his allegations of constitutional error with new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence.”24 A petitioner “must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.”25
Because of “the rarity of such evidence, in virtually every case, the allegation of
actual innocence has been summarily rejected.”26
III. 	Mr. Clayton’s Claims are Procedurally Barred
Because the state courts determined that any claims for post-conviction
relief were procedurally barred by Alaska’s statute of limitations, Mr. Clayton may
not bring his habeas claims in federal court without showing cause and prejudice
or actual innocence.27
(a) 	Cause
Given 	the 	circumstances 	surrounding 	the 	“review 	of 	microscopic 	hair
comparison 	reports 	and 	testimony 	presented 	by 	the 	FBI 	Laboratory 	before
December 31, 1999,” the Court concludes that Mr. Clayton could not have
discovered that the Agent’s testimony was flawed prior to receiving the 2015
24 Schlup v. Delo, 513 U.S. at 324; see also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013)
(explaining the significance of an “[u]nexplained delay in presenting new evidence”).
25 McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)).
26 Shumway v. Payne, 223 F.3d 982, 990 (citing Calderon v. Thompson, 523 U.S. 538, 559
(1998)).
27 28 U.S.C. § 2254(b)(1).
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letter.28 	Therefore, Mr. Clayton has established cause for his delay in seeking
post-conviction relief on this basis.
(b) 	Actual prejudice
To 	claim 	“that 	new 	evidence 	casts 	doubt, 	even 	grave 	doubt, 	on 	the
correctness of a conviction is not a ground for relief on collateral attack.”29 Actual
prejudice is only demonstrated when a defendant is denied “fundamental fairness”
at trial.30 	To warrant federal habeas relief based on the use of false testimony, a
petitioner must establish that: 	(1) the testimony was actually false, (2) the
prosecution knew or should have known it to be false, and (3) the false testimony
was material to the conviction.31
Generally, prejudice must be demonstrated based on the record before the
state court in the collateral review proceeding.32 In this case, the state courts found
the evidence against Mr. Clayton was “overwhelming” and there was “substantial
28 See, e.g., Crump v. May, 2023 WL 2240289, at *5–6 (D. Del. 2023) (unpublished); FBI Agents
Gave Erroneous Testimony in at Least 90% of Microscopic Hair Analysis Cases, INNOCENCE
PROJECT (Apr. 20, 2015), available at https://innocenceproject.org/fbi-testimony-on-microscopic-
hair-analysis-contained-errors-in-at-least-90-of-cases-in-ongoing-review/, 	last 	visited
February 22, 2024.
29 United States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010) (citing Conley v. United States, 323
F.3d 7, 14 (1st Cir.2003) (en banc).
30 Frady, 456 U.S. at 170.
31 Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). 	See also Van Arsdall, 475 U.S. at 684
(listing “the importance of the witness’ testimony” and “whether the testimony is cumulative” as
factors relevant to materiality).
32 Shinn, 596 U.S. at 386.
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physical evidence connecting Clayton to the crime scene.”33 As the Alaska Court
of Appeals explained, even without the FBI hair and fiber analysis testimony, the
evidence included “evidence of the gun and knife found in Clayton’s storage locker,
evidence that a check written from [the victim’s] checkbook had Clayton’s name
on it, and evidence that Clayton pawned [the victim’s] distinctive ring three days
after her murder.”34 	Therefore, the state courts rejected Mr. Clayton’s argument
that the tainted FBI testimony rendered his trial “fundamentally unfair.”35
For these reasons, the Court finds Mr. Clayton has failed to show the
testimony worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions. Further, there is no indication the State
knew or should have known the FBI testimony was false when it was presented at
trial. Therefore, although Mr. Clayton has established cause for his late filing, the
Court finds Mr. Clayton has not shown he “has suffered the degree of actual
prejudice necessary to overcome society’s justified interests in the finality of
criminal judgments.”36
(c) 	Miscarriage of justice/actual innocence
Mr. Clayton has not demonstrated—nor even asserted—that he is innocent
of the crimes for which he was convicted. 	He has failed to show he is entitled to
33 Docket 1-1 at 26; Clayton v. State, 535 at 918.
34 Clayton v. State, 535 at 918–19.
35 Id. at 920.
36 Frady, 456 U.S. at 171.
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relief even under the lower standards explained above and presents no new
evidence of actual innocence. Therefore, Mr. Clayton is barred from pursuing his
claims in federal court pursuant to the procedural default doctrine.37
IT IS THEREFORE ORDERED:
1. 	The Petition under 28 U.S.C. § 2254 is DISMISSED with prejudice.
2. 	All pending motions are DENIED as moot.
3. 	The Clerk is directed to enter a Final Judgment and terminate this
action.
4. 	A Certificate of Appealability shall not issue.38
DATED this 17th of April, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
37 Gray v. Netherland, 518 U.S. 152, 162 (1996).
38 28 U.S.C. § 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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