Hiratsuka v. Houser

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ALLEN HIRATSUKA,
Plaintiff,
vs.
EARL HOUSER,
Defendant.
3:21-CV-00018-SLG-MMS
FINAL REPORT AND
RECOMMENDATION REGARDING
HIRATSUKA’S PETITION WRIT OF
HABEAS CORPUS [DKT. 1]
I. 	MOTION PRESENTED
In January 2021, Petitioner Allen Hiratsuka brought this Motion for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. [Dkt. 1]. This case stems from Hiratsuka’s
state case, State of Alaska v. Allen Hiratsuka, Alaska Superior Court Case No. 3DI-18-
00319CR. Hiratsuka is a pretrial detainee in the Goose Creek Correctional Center and is
scheduled for trial on one count of second-degree sexual assault.1 [Dkt. 1 at 1].
This Court, in March 2021, ordered Hiratsuka to file an § 2241 amended habeas
corpus petition, or notify the Court that no amended petition will be filed, and ordered the
State of Alaska to respond to Hiratsuka’s habeas petition [Dkt. 11 at 12]. Hiratsuka did not
file an amended § 2241 habeas corpus petition. The State of Alaska, in July 2021,
1 Alaska Court System Courtview Public Access Website, records.courts.alaska.gov (Court
records indicate that, as of December 29, 2021, Hiratsuka’s trial is scheduled to start on
January 25, 2022)
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responded to Hiratsuka’s habeas petition. [Dkt. 34]. Hiratsuka thereafter filed a reply to the
State of Alaska’s response. [Dkt. 37]. In August 2021, this Court held an evidentiary
hearing on Hiratsuka’s habeas petition. [Dkt. 44].
Hiratsuka’s § 2241 habeas petition alleges the following claims: (1) his Sixth
Amendment right to a speedy trial has been violated because his pretrial proceedings have
been underway since August 2018; (2) the State of Alaska “has forced an attorney on [him]
who will not file the necessary documents[.]”; and (3) he seeks dismissal “under 18 U.S.C.
§ 3161(h), McNeely v. Blana … [and] Covid-19 is not a factor in the equation as [he] was
violated long before Covid-19.” [sic] [Dkt. 1 at 3]; [Dkt. 37 at 1-2].
The State of Alaska argues that (1) this Court should abstain from deciding
Hiratsuka’s Motion for a Writ of Habeas Corpus because Hiratsuka has not exhausted his
state remedies; (2) this Court should not second-guess the tactical decisions of Hiratsuka’s
attorney through pretrial habeas relief under 28 U.S.C. § 2241; and (3) “most of the delay
in the state proceeding was caused by continuances requested by the defense and, to a lesser
degree by the Covid-19 pandemic, which led to the suspension of normal operations in
both state and federal courts.” [Dkt. 34 at 1-2].
This Court hereby issues a Final Report and Recommendation regarding Hiratsuka’s
Motion for a Writ of Habeas Corpus. [Dkt 1]. For the reasons below, this Court will abstain
from deciding Hiratsuka’s habeas petition and the habeas petition should therefore be
DENIED without prejudice. 28 U.S.C. § 636(b)(1)(B).
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II. 	PROCEDURAL HISTORY
In August 2018, Hiratsuka was charged by indictment in the Alaska Superior Court
with one count of second-degree sexual assault.2 [Dkt. 1]; [Dkt. 34-2 at 1]. In September
2018, Attorney Christopher S. Lesch entered his appearance to represent Hiratsuka. See
Alaska Court System Courtview Public Access Website3 [Dkt. 34-7]. Between October
2018 and September 2019, the state court held monthly pre-trial conferences.4 See Alaska
Court System Courtview Public Access Website.5 In September 2019, Hiratsuka moved
for a representation hearing because he was dissatisfied with Mr. Lesch’s representation:
Mr. Lesche was introduced to my case towards the end of
August, 2018. It wasn’t until April, 2019 that I received some
of my discovery from Mr. Lesche. It was several months later
that I had to finally write a letter to the court, which was done
on 	6-1-19, 	asking 	for 	the 	courts 	assistance 	with
communications with mr. Lesche. My request to attend a
meeting between Dr. Ford and Mr. Lesch regarding DNA
evidence was denied by Mr. Lesche. (Aug. 1st 2019 meeting)
… On 9-3-19, I spoke with Mr. Lesche via telephone at which
time he indicated to me he was not hiring a DNA transfer
expert and was too busy to talk to me, but in the mean-time we
were ready for trial. I requested at that time for copies of Dr.
Fords results, which I was denied. 9-7-19.
[sic] [Dkt. 1-1 at 3]. Between September 2019 and March 2020, the state court held
monthly pretrial conferences, and it appears that Hiratsuka’s trial was continued because
Hiratsuka sought out a DNA expert for trial. [Dkt. 1-1 at 4]; [Dkt. 34 at 6-7]. Starting in
2 AS 11.41.420(a)(3): Sex Assault 2-Penetrate Incap Victim (Class B Felony)
3 records.courts.alaska.gov
4 The State of Alaska, in their response brief alleges that the defense requested further
continuances, “at least in part because Mr. Lesche was trying to hire an expert who could
challenge the DNA Evidence.” [Dkt. 34 at 5].
5 records.courts.alaska.gov
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March 2020, COVID-19 became a national emergency and the Alaska state courts issued
a series of miscellaneous general orders that described the impact of COVID-19 on the
state court system and its ability to conduct jury trials. See Special Orders 8130-8352 of
the Chief Justice of the Alaska Court, COVID-19 Response. The Alaska state courts
excluded pandemic-related delay from March 16, 2020 to June 1, 2021 for criminal cases,
and allowed tolling after July 31, 2021 “for the time necessary to permit an orderly
transition and scheduling.” See Special Order of the Chief Justice Order No. 8259 Update
Regarding Covid-19 and Criminal Jury Trials; see also Special Order of the Chief Justice
No. 8130. In Hiratsuka’s case, the state court continued holding pre-trial conferences and
in June 2020, granted Hiratsuka’s pretrial release for the limited purpose of working the
fishing 	season. 	See 	Alaska 	Court 	System 	Courtview 	Public 	Access 	Website,
records.courts.alaska.gov; see also [Dkt. 34 at 9]. It appears that Hiratsuka returned to
custody in August 2020 when the fishing season ended. See [Id.]; see also [Id.].
In January 2021, Hiratsuka filed a § 2241 habeas petition with the U.S. District
Court for the District of Alaska. [Dkt. 1]. In Hiratsuka's habeas petition, he claims that he
appealed the state court’s order regarding his Sixth Amendment Right to Speedy Trial
violation to the American Bar Association. [Id. at 2-3]; see also generally [Dkt. 3]; [Dkt. 9
at 1] (“As far as how you may be attempting to have the Supreme Court review your
Attorney Bar Grievance, from the documents provided, it does not appear that you have
exhausted all potential remedies regarding an Attorney Bar Grievance.”). Hiratuska’s
habeas petition was referred to this Court in March 2021. [Dkt. 8]. In March 2021, this
Court ordered Hiratsuka to file an amended habeas petition, or notify the Court that none
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would be filed, and ordered the State of Alaska to respond to Hiratsuka's habeas petition,
including whether Hiratsuka had exhausted all available remedies to address the issues
presented. [Dkt. 11 at 12-13].
In April 2021, this Court appointed counsel for Hiratsuka, but appointed counsel
withdrew in May 2021. [Dkt. 16]; [Dkt. 26]. Hiratsuka did not file an amended § 2241
habeas corpus petition. Regarding Hiratsuka’s exhaustion, the State of Alaska responded
to Hiratsuka’s habeas petition and stated that “Hiratsuka failed to properly present his
claims to the state courts, and even now, he is not precluded from filing those claims in the
state courts.” [Dkt. 34 at 1]. Hiratsuka thereafter filed a reply to the State of Alaska’s
response. [Dkt. 37]. Upon Hiratsuka’s request, this Court held an evidentiary hearing in
August 2021 to address the issue of Hiratsuka’s speedy trial claim, but the only evidence
proffered by Hiratsuka was a motion to dismiss which had been previously filed in state
court. [Dkt. 47 at 24-26]; [Dkt. 36].
Based on the state court records, Hiratsuka’s state trial is scheduled for January 25,
2022. 	See 	Alaska 	Court 	System 	Courtview 	Public 	Access 	Website,
records.courts.alaska.gov.
III. LEGAL STANDARD
A state detainee who is not incarcerated pursuant to a final state court judgment may
invoke 28 U.S.C. § 2241 for relief on the ground that he is “in custody in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). Pretrial habeas
relief under § 2241 must be premised on a violation of federal law. [Id.] (“the writ shall not
extend to a prisoner unless (1) he is in the custody of the United States; (2) he is in custody
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for an act done or omitted in pursuance of an Act of Congress or an order, process,
judgment or decree of a court or judge of the United States; (3) he is in custody in violation
of the Constitution or laws or treaties of the United States; (4) he is a citizen of a foreign
state and domiciled therein is in custody for an act done or omitted under any alleged right,
order or sanction of any foreign state, or under color thereof, the validity and effect of
which depend upon the law of nations; or (5) it is necessary to bring him into court to testify
or for trial”). State law violations are thus not cognizable on federal habeas corpus review.
See Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) (“We have stated many times that
federal habeas relief does not lie for errors of state law”) (quoting Estelle v. McGuire, 502
U.S. 62, 67 (1991)) (internal quotations omitted). A petitioner must also have exhausted
his state court remedies before properly pursuing a claim under 28 U.S.C. § 2241. See
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 491-92 (1973).
Exhaustion under § 2241 is not a statutory requirement; it is an “exercise of judicial
restraint … federal courts elect not to entertain habeas corpus challenges to state court
proceedings until habeas petitioners have exhausted state avenues for raising federal
claim.” Carden v. State of Mont., 626 F.2d 82, 83 (9th Cir. 1980). Thus, exhaustion has
been imposed on § 2241 habeas petitions by federal courts in construing the statute. [Id.].
In Younger v. Harris, the Supreme Court held that a federal court should abstain
from 	interfering 	with 	a 	pending 	state 	criminal 	proceeding 	absent 	extraordinary
circumstances. 401 U.S. 37, 41 (1971). Exceptions to the Younger abstention doctrine exist
when there is a showing of “bad faith, harassment, or some other extraordinary act that
would make abstention inappropriate.” Middlesex County Ethics Committee v. Garden
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State Bar Ass’n, 457 U.S. 423, 435 (1982); see also Perez v. Ledesma, 401 U.S. 82, 85
(1971) (“Only in cases of proven harassment or prosecutions undertaken by state officials
in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary
circumstances where irreparable injury can be shown is federal injunctive relief against
pending state prosecutions appropriate”); Carden v. Montana, 626 F.2d at 83 (Younger
abstention appropriate despite the prosecution's allegedly “unfair” charging practices and
“deliberate delay” of the proceedings); see also Drury v. Cox, 457 F.2d 764, 764–65 (9th
Cir. 1972) (“[O]nly in the most unusual circumstances is a defendant entitled to have
federal interposition by way of injunction or habeas corpus until after the jury comes in,
judgment has been appealed from and the case concluded in the state courts”).
In Wright v. Volland,6 the defendant alleged that his Sixth Amendment right to a
speedy trial was violated because of a “five-year delay between the time when he was
charged with sexual abuse of a minor and his arrest[.]” 2009 WL 1465351 at 1. The Ninth
Circuit affirmed the district court’s decision to abstain from deciding Wright’s habeas
petition:
Because Wright asks us to order the state of Alaska to dismiss
the charges against him, and because the state appellate courts
have not yet had the opportunity to examine the merits of
Wright's constitutional claims, Younger v. Harris mandates
that we abstain from intervening in the ongoing state criminal
proceedings absent extraordinary circumstances. See 401 U.S.
37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Wright failed to
demonstrate 	any 	special 	circumstances 	warranting 	federal
intervention. See Carden v. Montana, 626 F.2d 82, 83 (9th
6 Under Ninth Circuit Rule 36-3, Wright is not binding precedent because it is an
unpublished opinion. However, Wright is persuasive authority that incorporates binding
precedent.
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Cir.1980) (quoting Braden v. 30th Judicial Circuit Court of
Ky., 410 U.S. 484, 489, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973)).
Wright has not demonstrated irreparable injury by the simple
fact that he must wait to assert his speedy trial claim on direct
appeal in the event he is convicted. See id. at 84. “[U]nlike the
Double Jeopardy Clause, the Speedy Trial Clause, when raised
as an affirmative defense, does not embody a right which is
necessarily forfeited by delaying review until after trial.” Id.;
see also United States v. MacDonald, 435 U.S. 850, 861, 98
S.Ct. 1547, 56 L.Ed.2d 18 (1978) (noting that the Speedy Trial
Clause does not “encompass a ‘right not to be tried’ which
must be upheld prior to trial if it is to be enjoyed at all”).
[Id. at 497-98] (some internal citations and quotations omitted).
IV. ANALYSIS
Here, the Younger abstention doctrine mandates that this Court abstain from
intervening in Hiratsuka’s ongoing state criminal proceedings because (1) Hiratsuka has
failed to demonstrate any special circumstances that warrant federal intervention. See
Carden, 626 F.2d at 83; (2) there is no indication that Hiratsuka has exhausted a speedy
trial claim in the state courts proceedings. [Id.]; see also Braden, 410 U.S. at 491-92; (3)
and this Court finds the Ninth Circuit’s reasoning in Wright to be persuasive in Hiratsuka’s
case. Wright, 2009 WL 1465351 at 1.
Nothing in Hiratsuka’s § 2241 habeas petition suggests that the application of
Younger would otherwise be inappropriate. Given Hiratsuka’s upcoming trial date,7 the
state criminal proceedings are ongoing, and Hiratsuka will have an opportunity to
7 Alaska Court System Courtview Public Access Website, records.courts.alaska.gov (Court
records indicate that, as of December 29, 2021, Hiratsuka’s trial is scheduled to start on
January 25, 2022)
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adequately raise his affirmative defense of a speedy trial violation in the ongoing state
criminal proceedings, and on appeal should he be convicted. See Middlesex County Ethics
Comm., 457 U.S. at 435. While Hiratsuka alleges that the State of Alaska “has forced an
attorney on [him] who will not file the necessary documents[,]” the state court records
indicate that the state judge has been sensitive to Hiratsuka’s concerns regarding attorney
representation by holding several representation hearings.8 See Perez, 401 U.S. at 85
(“Only in cases of proven harassment or prosecutions undertaken by state officials in bad
faith without hope of obtaining a valid conviction and perhaps in other extraordinary
circumstances where irreparable injury can be shown is federal injunctive relief against
pending state prosecutions appropriate.”); [Dkt. 1 at 3]; [Dkt. 37 at 1-2].
Regarding the state court’s suspension of jury trials between March 2020 and June
2021, this Court agrees with the State of Alaska that the “Ninth Circuit has recognized that
jury-trial delays caused by Covid-19 suspension orders do not generally violate speedy-
trial requirements.” [Dkt. 34 at 26]. In United States v. Olsen, the Ninth Circuit dealt with
the COVID-19 implications for speedy trial issues, and held that the ends of justice
provision allow continuances even when conducting a trial is not outright impossible. 2021
WL 1589359 at 6. Here, the miscellaneous general court orders described the devastating
effect that COVID-19 had on the Alaska state court system and described the careful
consideration by the Alaska Court System when the suspension of jury trial was imposed.
See Special Order of the Chief Justice Order No. 8155 (“The number of active COVID-19
8 Alaska Court System Courtview Public Access Website, records.courts.alaska.gov
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cases in Alaska remains high. Public health authorities advise that transmission of the
disease may be mitigated by social distancing, face coverings, and other health measures.
But most state courtrooms are barely adequate to accommodate the parties, attorneys, court
personnel, and a standard jury panel with adequate social distancing.”). Thus, this Court
finds that the COVID-19 delays in Hiratsuka’s trial are not special circumstances that
warrant federal intervention. See Carden, 626 F.2d at 83; see also Drury, 457 F.2d at 764-
65 (“[O]nly in the most unusual circumstances is a defendant entitled to have federal
interposition by way of injunction or habeas corpus until after the jury comes in, judgment
has been appealed from and the case concluded in the state courts.”).
Hiratsuka misreads McNeely v. Blanas, 336 F.3d 822, 824 (9th Cir. 2003). In
McNeely, pretrial habeas relief was granted because a state prisoner did not have a single
preliminary hearing or a trial in a five-year span. [Id.]. Pretrial habeas relief is appropriate
“when a state prisoner requests the federal courts to order the state court to afford the
petitioner a trial but does not permit the derailment of a pending state proceeding by an
attempt to litigate constitutional defenses prematurely in federal court.” Wright, 331 F.
App’x at 498. Hiratsuka’s state case is distinguishable from McNeely because there is a
trial scheduled in his state case9 and Hiratsuka has also not properly exhausted his state
remedies. See Middlesex County Ethics Comm., 457 U.S. at 435.
This Court finds Wright to be persuasive in Hiratsuka’s case. There ─as here─ the
petitioner 	alleged 	speedy trial 	violations 	based on 	court 	delays. 	Wright, 	331 	Fed.
9 Alaska Court System Courtview Public Access Website, records.courts.alaska.gov
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App’x at 497. There ─as here─ the state courts did not have the opportunity to examine
the 	merits 	of 	petitioner’s 	constitutional 	claims. 	[Id.]. 	There 	─as 	here─ 	the 	delay
experienced by the petitioner did not give rise to a constitutionally invalid trial, warranting
federal pretrial intervention. [Id.]. There ─as here─ the petitioner failed to demonstrate
special circumstances or “irreparable injury by the simple fact that he must wait to assert
his speedy trial claim on direct appeal in the event that he is convicted.” [Id. at 498].
Whether Hiratsuka’s speedy trial claim provides a meritorious defense based on the
delays in bringing him to trial is a matter that the Alaska state court must first address on
direct appeal, should Hiratsuka be convicted. Younger therefore mandates that this Court
abstain from intervening in Hiratsuka’s ongoing state criminal proceedings. Younger, 401
U.S. at 85.
V. 	CONCLUSION
For the reasons set forth above, Hiratsuka’s Motion for a Writ of Habeas of Corpus
[Dkt. 1] should be DENIED without prejudice. 28 U.S.C. § 636(b)(1)(B).
Dated this 5th day of January, 2022, at Anchorage, Alaska
s/ Matthew M. Scoble
CHIEF MAGISTRATE JUDGE
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Any party may
file written objections with the court no later than CLOSE OF BUSINESS, January 20,
2022. 	Such 	a 	document 	should 	be 	captioned 	“Objections 	to 	Final 	Report 	and
Recommendations.” Response(s) to the objections shall be filed on or before CLOSE OF
BUSINESS, January 27, 2022. Failure to file objections within the specified time may
waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455
(9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Petitioner’s objections
may address whether a certificate of appealability should issue in the event he files an
appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the
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district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant). Reports and recommendations are not appealable orders. 	Any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the
district court’s judgment. See Hilliard v. Kinsheloe, 796 F.2d 308 (9th Cir. 1986).
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