Wexler v. Municipality of Anchorage

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DEMION C. WEXLER,
Petitioner,
vs.
MUNICIPALITY OF ANCHORAGE,
Respondent. 1 Case No. 3:21-cv-00059-RRB
ORDER OF DISMISSAL
Demion C. Wexler, representing himself from the Anchorage Correctional
Complex, where he is housed as a pretrial detainee, has filed a habeas petition
under 28 U.S.C. § 2241, claiming that the state court is denying his rights in two
misdemeanor criminal cases in which he is a defendant.2 Mr. Wexler also has filed
an Application to Waive Prepayment of the Filing Fee.3
The Court takes judicial notice4 that, on March 1, 2021, the Chief Justice of
the Supreme Court for the State of Alaska issued Special Order 8242, stating that
1 The proper respondent in a habeas proceeding is the petitioner’s custodian, not a city
or state government. See, e.g., Rumsfield v. Padilla, 542 U.S. 426, 434–36 (2004). But
that issue need not be fully addressed in this dismissal.
2 Docket 1; Municipality of Anchorage v. Damion Charles Wexler, Alaska District Court
Case Nos. 3AN-19-02245CR, 3AN-20-03181CR.
3 Docket 4.
4 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
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“[m]isdemeanor trials may resume on April 19, 2021 under the direction of the
presiding judge. The presiding judge may limit or suspend misdemeanor jury trials
. . . when required for public health or to comply with local mandates.”5 The public
record shows that Mr. Wexler has been charged with misdemeanors involving
firearms and alcohol, as well as six additional charges for violating conditions of
release, after being granted release on bail.6
SCREENING REQUIREMENT
Federal courts have general habeas jurisdiction under 28 U.S.C. § 2241.7
A petitioner may properly challenge state pretrial detention under § 2241.8
available records . . . from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
5 https://public.courts.alaska.gov/web/covid19/docs/socj-2021-8242.pdf, Special Order
8242 at 1; see also State v. Baker, 425 P.3d 210, 212 (Alaska Ct. App. 2018) (“Alaska
Criminal Rule 45 governs a defendant’s statutory right to a speedy trial under Alaska
law.”).
6 See https://records.courts.alaska.gov/eaccess/searchresults, 3AN-19-02245CR, 3AN-
20-03181CR.
7 See Magana-Pizano v. INS, 200 F.3d 603, 608 & n.4 (9th Cir. 1999).
8 See Stow v. Murashige, 389 F.3d 880, 885–88 (9th Cir. 2004).
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A court must “promptly examine” a habeas petition.9 	“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. . . .”10
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.11
DISCUSSION
A writ of habeas corpus allows an individual to test the legality of being
detained or held in custody by the government.12 	The writ “is a vital ‘instrument
for the protection of individual liberty’ against government power.”13
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 United
States.”14 This habeas statute provides federal courts with general habeas corpus
9 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.
10 Id.
11 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)).
12 Rasul v. Bush, 542 U.S. 466, 474 (2004).
13 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015); quoting Boumediene v. Bush,
553 U.S. 723, 743 (2008).
14 28 U.S.C. § 2241(c)(3).
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jurisdiction.15 	28 U.S.C. § 2241 is the proper avenue for a state prisoner who
wishes to challenge his state custody without a state judgment.16 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.17
In McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003), the Ninth Circuit
found a delay of three years to be substantial, such that prejudice was presumed,
triggering an inquiry under Barker v. Wingo.18 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.19 	The factors to
be 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.”20
15 See Magana-Pizano, 200 F.3d at 608 & n.4.
16 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.”)).
17 See Barker v. Wingo, 407 U.S. 514, 530–31 (1972).
18 Barker, 407 U.S. at 530.
19 McNeely, 336 F.3d at 826 (citing Doggett v. United States, 505 U.S. 647, 652 n.1
(1992)).
20 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
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I. 	Appropriate Relief
For relief, Mr. Wexler requests that the Court grant him “[a] compassionate
voluntary 	dismissal 	of 	the 	misdemeanor 	charges 	. . . 	[and] 	to 	dismiss 	the
indictments due to mistrial and violation of 2nd/6th amendments and fundamental
rights as an Alaskan . . . .”21 The due process clauses of the Fifth and Fourteenth
Amendments bar pretrial detention unless detention is necessary to serve a
compelling government interest.22 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.”23 Mr. Wexler, of
course, has been granted release on bail, but the state records show that he
violated the conditions of his release on several occasions.
Mr. Wexler’s request that the Court require charges against him in the state
courts be dismissed is not appropriate.24 	A speedy trial claim may be reviewed
a ‘deliberate inquir[y] into whether an ends-of-justice continuance is justified by the
circumstances surrounding a particular case.’”) (citation omitted).
21 Docket 1 at 7.
22 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)).
23 Id. (quoting Lopez-Valenzuela, 770 F.3d at 777).
24 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
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under § 2241 if a pretrial detainee is seeking to compel the state to bring him to
trial, rather than seeking dismissal of the charges.25 Thus, although a federal court
can order a state court to bring a petitioner to trial, federal courts do not order that
state charges be dismissed.26 The Court will not, therefore, address the merits of
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).
25 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).
26 Compare United States v. Olsen, No. SACR 17-00076-CJC, 2020 WL 6145206, at *1
(C.D. Cal. Oct. 14, 2020) (“Because the Central District denied Mr. Olsen a public and
speedy trial under the Sixth Amendment, this Court now must dismiss the [federal]
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any underlying charges against Mr. Wexler, or order that any state criminal
charges against Mr. Wexler be dismissed.
II. 	Abstention
The Younger abstention doctrine provides that federal courts may not
generally exercise jurisdiction when doing so would interfere with state judicial
proceedings.27 	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.”28 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 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
indictment against him.”), appeal filed 11/13/20, 9th Cir. No. 20-50329, 2020 WL
6145206.
27 See Younger v. Harris, 401 U.S. 37, 41 (1971).
28 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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practical 	effect 	of 	doing 	so, 	i.e., 	would 	interfere 	with 	the 	state
proceeding in a way that Younger disapproves.29
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.30
The State of Alaska has an important interest in enforcing its criminal laws,
and Mr. Wexler’s criminal cases in state court remain ongoing. 	Mr. Wexler’s
allegation that he is being denied his right to a speedy trial in state court, should
be addressed in his state court criminal proceedings, where he may also continue
to address release on bail.31 	This Court should not interfere with the trial court’s
fact-finding responsibilities and legal decisions in that case, unless “full vindication
29 San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
30 Page v. King, 932 F.3d 898, 903 (9th Cir. 2019) (citing Arevalo, 882 F.3d at 764, 766–
67).
31 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
conviction can have the same effect as a direct injunction of ongoing state proceedings.”)
(citing Carden, 626 F.2d at 83).
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of the petitioner’s pretrial rights requires intervention before trial.”32 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. § 2241.33 	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
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.34
32 Page, 932 F.3d at 903.
33 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.’).”).
34 Carden, 626 F.2d at 83–85.
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The Court may only address Mr. Wexler’s speedy trial claim after he fully
exhausts the available state court remedies,35 and upon a showing that this Court
should not abstain from addressing his claims.
Accordingly, IT IS HEREBY ORDERED:
1. This case is DISMISSED without prejudice.
2. The 	Application 	to 	Proceed 	without 	Prepaying 	Fees 	or 	Costs, 	at
Docket 4, is DENIED as moot.
3. The Clerk of Court is directed to enter Judgment accordingly.
Dated at Anchorage, Alaska, this 30th day of March, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
35 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.”).
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