Shorty v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PATRICK LEO SHORTY,
Petitioner,
vs.
EARL L. HOUSER, Superintendent III,
Goose Creek Correctional Center,
Respondent.
No. 3:19-cv-00223-JKS
ORDER
[Re: Motion at Docket No. 2 and
Directing Service and Response]
On August 13, 2019, Patrick L. Shorty, a state prisoner proceeding pro se, filed a Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”). Docket No. 1. Shorty
challenges the judgment of conviction following a jury trial entered by the Superior Court for the
State of Alaska, Case Number 3AN-03-7796CR. Id. at 1. Shorty contends that his conviction
should be overturned because it was obtained through an unlawful arrest and unconstitutional
search and seizure, and his trial, appellate, and post-conviction relief counsel rendered
ineffective assistance. Id. at 5. Shorty 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.
Pursuant to the Rules Governing Section 2254 Cases, the Court must review the Petition
to determine whether “it plainly appears from the face of the petition and any attached exhibits
-1-
Case 3:19-cv-00223-JKS Document 4 Filed 08/28/19 Page 1 of 4

that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases,
Rule 4. See 28 U.S.C. § 2243. After a preliminary review, it does not plainly appear from his
Petition that Shorty is not entitled to relief. 1
Shorty concurrently moves for the appointment of counsel to assist him in these
proceedings. Docket No. 2. While this Court is not unmindful of the plight of unrepresented
state prisoners in federal habeas proceedings, there is no constitutional right to counsel in federal
habeas proceedings. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing Coleman v.
Thompson, 501 U.S. 722, 756-57 (1991)). Appointment of counsel is not required in a habeas
corpus proceeding in the absence of an order granting discovery or an evidentiary hearing. See
Rules Governing Section 2254 Cases in the U.S. District Courts, Rule 6(a), 8(c). This Court
may under the Criminal Justice Act appoint counsel in this case if it determines that the interests
of justice so require. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); see Weygandt v. Look,
718 F.2d 952, 954 (9th Cir. 1983) (“In deciding whether to appoint counsel in a habeas
proceeding, the district court must evaluate the likelihood of success on the merits as well as the
ability of the petitioner to articulate his claims pro se in light of the complexity of the legal
issues involved.”).
At this time, Shorty’s request for counsel is premature. The Court cannot determine
whether appointment of counsel is warranted in this case until it is able to thoroughly review the
1 The Petition indicates that Shorty filed a petition for post-conviction relief in state
court on October 15, 2012, Case No. 3AN-09-11007CI, more than three years after his
convictions for first-degree sexual assault, resisting or interfering with arrest, and fourth-degree
assault were affirmed by the Alaska Court of Appeals in Case No. A-9942. If true, the delay in
filing would raise timeliness concerns given the one-year limitations period in which a state
prisoner may file a federal habeas petition challenging his or her state conviction under 28
U.S.C. § 2244(d)(1). The Court takes judicial notice, however, that the records of the Alaska
Court System indicate that Case No. 3AN-09-11007CI was filed on October 5, 2009. See
http://records.courts.alaska.gov. Judicial notice is “[a] 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 (10th ed. 2014); 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).
-2-
Case 3:19-cv-00223-JKS Document 4 Filed 08/28/19 Page 2 of 4

briefing in its entirety. The Court will therefore deny, without prejudice to renew, Shorty’s
motion for appointment of counsel. The Court will not reconsider a motion to appoint counsel
until it has thoroughly reviewed Respondent’s answer to the Petition.
IT IS THEREFORE ORDERED:
1. 	The motion at Docket No. 2 for appointment of counsel pursuant to 18 U.S.C. §
3006A is DENIED WITHOUT PREJUDICE.
2. 	The Clerk of the Court is directed to serve this order and the Petition at Docket
No. 1 on:
Tamara DeLucia
Office of Criminal Appeals
1031 W. 4th Ave, Suite 200
Anchorage, Alaska 99501
3. 	By agreement between the Court and the Office of Criminal Appeals, the Office
of Criminal Appeals will accept service on behalf of the Respondent.2 Once an
attorney is assigned to this case by the Office of Criminal Appeals, that
attorney shall immediately—and in no more than fourteen (14) days from
the date of this order—file a notice of appearance.
4. 	Respondent shall file and serve either an answer or a motion in response to the
Petition within sixty (60) days from the date of this Order. See Rule 4, Rules
Governing § 2254 Cases. The Court also notes its preference that procedural
issues be addressed concurrently with the merits of the habeas petition. Any
response shall be accompanied by any and all transcripts or other documents
relevant to the determination of the issues presented in the application. See Rules
4 and 5, Rules Governing § 2254 Cases. This should include a copy of:
(1) any brief that the Petitioner submitted in an appellate court contesting
the conviction or sentence, or contesting an adverse judgment or order in
2 In this regard, Respondent has waived Federal Habeas Corpus Rule 4 regarding
service.
-3-
Case 3:19-cv-00223-JKS Document 4 Filed 08/28/19 Page 3 of 4

a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate court relating
to
the conviction or sentence; and
(3) the opinions and dispositive orders of the state appellate courts relative
to the conviction or sentence.
5. 	Shorty’s reply, if any, shall be filed and served within thirty (30) days of service
of an answer.
Dated at Anchorage, Alaska this 28th day of August, 2019.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
-4-
Case 3:19-cv-00223-JKS Document 4 Filed 08/28/19 Page 4 of 4