1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF ALASKA
4 ROBERT HAWES,
5 Petitioner,
6 v. Case No. 3:24-cv-00124-SLG-KFR
7 SUPERINTENDENT ANGOL,
8 Respondent.
10 REPORT AND RECOMMENDATION RE § 2241 PETITION
11 Before the Court are a pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
12 2241 and a counseled Amended § 2241 Petition (collectively, “Petition”) filed by Petitioner
13 Robert Hawes.1 Respondent Superintendent Angol answered the Petition,2 and Petitioner
14 replied.3 The Court finds that Petitioner’s claims must be dismissed because they are not
15 cognizable in a federal habeas proceeding, they are subject to Younger abstention, or they are
16 unexhausted. Petitioner has not articulated any circumstances that could justify this Court’s
17 consideration of his federal claims at this time. Therefore, the Court recommends that
18 Petitioner’s claims be DISMISSED without prejudice.
19 I. BACKGROUND
20 Petitioner is a pretrial detainee at Goose Creek Correctional Center in the custody of
21 the State of Alaska Department of Corrections.4 The Court takes judicial notice of the docket
22 records in Petitioner’s ongoing state criminal case, State of Alaska v. Hawes, Case No. 3PA-21-
23 01098CR.5 The following facts are gleaned from those records and from the additional state
24 1 Docket 1; Docket 10. In the Amended Petition, counsel notes that Petitioner declined to waive the 25 grounds for relief raised in the pro se Petition that are not discussed in the Amended Petition. See Docket 10 at 5. 26 2 Docket 13. 3 Docket 15. 27 4 Docket 1 at 1. 5 Judicial notice is the “court’s acceptance, for purposes of convenience and without requiring a party’s 28 1 court records provided by Respondent.6
2 On June 6, 2021, the State of Alaska (“State”) filed a criminal complaint in the Third
3 Judicial District of Alaska, in Palmer, charging Petitioner with three counts of first-degree
4 sexual abuse of a minor.7 Petitioner was arraigned that same day before the Palmer District
5 Court.8 At Petitioner’s arraignment, the Cou rt appointed counsel from the Alaska Public
6 Defender Agency to represent Petitioner, set bail at a $75,000 cash appearance bond and a
7 $100,000 cash performance bond, and scheduled a preliminary hearing for ten days later.9
8 On June 11, 2021, a grand jury returned an indictment charging Petitioner with two
9 counts of first-degree sexual abuse of a minor, one count of attempted first-degree sexual abuse
10 of a minor, and one count of second-degree sexual abuse of a minor.10 On June 14, 2021, the
11 State filed the indictment in Petitioner’s case, and the case was transferred to the Palmer
12 Superior Court.11 In addition, the previously scheduled preliminary hearing was vacated.12 On
13 June 16, 2021, Petitioner was arraigned on the indictment before the Superior Court.13 At the
14 arraignment, the Superior Court ordered that Petitioner’s bail conditions remain as previously
15 set.14 The Superior Court also scheduled trial to begin the week of September 27, 2021.15
16 Since then, Petitioner’s trial has repeatedly been continued. Some of the delay has been 17 due to circumstances entirely outside Petitioner’s control. In August 2021, the Third Judicial 18 District’s presiding judge ordered that all jury trials in the district be suspended due to the 19 public health risk posed by elevated rates of COVID-19.16 That suspension ultimately lasted 20 proof, of a well-known and indisputable fact; the court’s power to accept such a fact.” BLACK’S LAW 21 DICTIONARY (11th ed. 2019); see also Fed. R. Evid. 201; Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are appropriate for 22 judicial notice.” (internal quotation marks and citation omitted)). 6 See Docket 13-1–16. 23 7 Docket 13-1; Docket 13-2 at 4. 8 Docket 13-2 at 2. 24 9 Id. at 4–5; Docket 13-3 at 42. 10 Docket 13-4. 25 11 Docket 13-2 at 5. 12 Id. at 2. 26 13 Id. 14 Id. at 5; Docket 13-3 at 30. 27 15 Docket 13-5. 16 Third Judicial District Presiding Judge Order # 894 (Aug. 4, 2021); see also Special Order of the 28 1 until mid-January 2022.17 But just before jury trials were set to recommence, the Palmer
2 courthouse experienced “extensive flooding . . . as a result of [a] recent extraordinary weather
3 event in the Matanuska-Susitna Borough.”18 Because of this flooding and the resulting
4 incapacity of the courthouse, the presiding judge suspended jury trials in Palmer pending
5 further notice.19 In March 2022, the presiding judge issued an order allowing some criminal
6 jury trials to be moved from Palmer to Anchorage based on limited available space in the
7 Anchorage courthouse.20
8 The rest of the delay has been due to continuances requested by the parties. Neither
9 the publicly available records nor the records provided by Respondent consistently indicate
10 which party requested a continuance in each instance; however, they do show that Petitioner’s
11 defense counsel has requested at least eleven.21 Following the most recent continuance granted
12 in April 2025, Petitioner’s trial is now scheduled to begin the week of January 12, 2026.
13 During the pendency of Petitioner’s state case, Petitioner has had three bail review
14 hearings.22 In October 2021, Petitioner requested that his bail be reduced to $3,000 with
15 supervision by the Department of Corrections Pretrial Enforcement Division.23 The Superior
16 Court held a bail review hearing on October 27, 2021, at which the court found that Petitioner 17 was a flight risk and had failed to present adequate financial information or propose a third- 18 party custodian.24 The Superior Court thus declined to alter Petitioner’s bail.25 In December
19 Chief Justice No. 8259 (Apr. 6, 2021) (authorizing presiding judges to “limit or suspend misdemeanor or felony jury trials for any district or location when required for public health or to 20 comply with local health mandates”); Docket 13-6. 17 Third Judicial District Presiding Judge Order # 899 (Aug. 23, 2021); Third Judicial District 21 Presiding Judge Order # 901 (Sept. 16, 2021); Third Judicial District Presiding Judge Order # 901 First Update (Oct. 12, 2021); Third Judicial District Presiding Judge Order # 901 Second Update 22 (Nov. 23, 2021). 18 Third Judicial District Presiding Judge Order # 918 (Jan. 4, 2022). 23 19 Id.; Third Judicial District Presiding Judge Order # 918 Updated (Feb. 14, 2022). 20 Third Judicial District Presiding Judge Order # 923 (Mar. 14, 2022). The presiding judge delegated 24 authority to a Superior Court judge in Palmer to select cases to be tried in Anchorage. Id. 21 Docket 13-7 (defense counsel requesting continuances on April 15, 2022; June 10, 2022; July 15, 25 2022; August 11, 2022; September 23, 2022; October 21, 2022; December 2, 2022; January 4, 2023; February 8, 2023; and April 19, 2023); Docket 13-3 at 4–5 (defense counsel requesting continuance 26 on December 4, 2022). 22 Docket 13-8; Docket 13-9. 27 23 Docket 13-8. 24 Docket 13-3 at 37–38. The minutes of this proceeding indicate that Petitioner was present. 28 25 Id. at 37–38. 1 2021, Petitioner submitted the same bail proposal again, but with additional information
2 regarding his finances.26 The Superior Court held a bail review hearing on January 4, 2022, at
3 which the court again declined to reduce Petitioner’s bail, noting that the information provided
4 by Petitioner was incomplete.27 And in March 2022, Petitioner proposed reducing his bail to
5 $6,000 with a third-party custodian.28 The Sup erior Court held a bail review hearing on March
6 30, 2022, at which the court allowed the parties to examine the proposed third-party custodian
7 and give argument.29 Reasoning that the proposed third-party custodian was not strong enough
8 to warrant a reduction in bail, the Superior court denied Petitioner’s bail proposal.30 Petitioner
9 did not appeal any of the Superior Court’s bail rulings.31
10 Petitioner has also attempted to file several pro se motions in his state case, including a
11 motion to dismiss the indictment on speedy trial grounds filed in August 2024 and a motion
12 for a representation hearing filed in September 2024.32 The Superior Court rejected Petitioner’s
13 motions as improperly filed under state procedural rules prohibiting parties who are
14 represented by an attorney from acting on their own behalf.33 In December 2024, Petitioner’s
15 defense attorney requested a representation hearing; the Superior Court granted that request
16 and held a representation hearing on December 16, 2024.34 Neither that hearing nor the two 17 other representation hearings Petitioner has had in his state case resulted in a change in 18 representation.35 19 On June 7, 2024, Petitioner commenced this action by filing a pro se Petition for a Writ
20 26 Docket 13-9. 27 Docket 13-3 at 35. The minutes of this proceeding indicate that Petitioner was present. 21 28 Docket 13-10. 29 Docket 13-3 at 30–33. 22 30 Id. 31 On June 5, 2023, Petitioner requested another bail review hearing, which the Superior Court denied 23 on the ground that Petitioner’s bail proposal—to reduce his bail to $10,000 based on his ability to pay—did not include a potential third-party custodian or ask to remove “th[at] aspect of Defendant’s 24 bail.” Docket 13-11. 32 Docket 13-12; Docket 13-13; Docket 13-14. 25 33 Docket 13-2 at 7–9 (citing Alaska R. Crim. P. 50; Alaska R. Civ. P. 81(c)). 34 Id. at 9. 26 35 Petitioner’s other representation hearings took place on June 20, 2024, and April 28, 2025. CourtView, State v. Hawes, Case No. 3PA-21-01098CR, Events 27 https://records.courts.alaska.gov/eaccess/searchresults.page?x=VY2vNgrY3NdjLxeHyPalSxogmJ5s LPDfqKsgGWlAOLjEg344xuvmmTUGuK4HlqYdIOKIyW7sxkwcV2ncGTx-Kg (last visited June 28 12, 2025). The record contains no other information regarding what transpired at those hearings. 1 of Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging his pretrial detention on four
2 grounds.36 The Court subsequently issued an order directing service on Respondent.37
3 Petitioner then requested the appointment of counsel to represent him in this proceeding;38
4 the Court granted this request.39 Appointed counsel filed an Amended § 2241 Petition that
5 supplements two of the grounds for relief rais ed in Petitioner’s pro se Petition, and that does
6 not waive the two other grounds raised in the pro se Petition.40 (For ease of reference, the Court
7 will refer to the pro se Petition and the counseled Amended Petition, collectively, as the
8 “Petition.”) Respondent answered,41 and Petitioner replied.42
9 II. LEGAL STANDARD
10 28 U.S.C. § 2241 authorizes a federal court to entertain a petition for writ of habeas
11 corpus from a person claiming to be “in custody in violation of the Constitution or laws or
12 treaties of the United States.”43 Habeas corpus is “a vital ‘instrument for the protection of
13 individual liberty’ against government power.”44 A pretrial detainee may challenge their state
14 custody in a habeas petition brought under § 2241.45
15 III. DISCUSSION
16 In the instant Petition, Petitioner asserts four claims: (1) the Superior Court has imposed 17 excessive bail that Petitioner cannot afford; (2) Petitioner has been denied a preliminary 18 examination; (3) Petitioner’s indictment is procedurally and substantively “flawed”; and (4) 19 Petitioner’s right to a speedy trial has been violated.46 For relief, Petitioner asks this Court to 20 order that his pending state criminal charges be dismissed with prejudice, and that those charges
21 36 Docket 1. 37 Docket 4. 22 38 Docket 5. 39 Docket 8. 23 40 Docket 10 at 5. 41 Docket 13. 24 42 Docket 15. 43 28 U.S.C. § 2241(a), (c)(3). 25 44 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015) (quoting Boumediene v. Bush, 553 U.S. 723, 743 (2008)). 26 45 Stow v. Murashige, 389 F.3d 880, 885–88 (9th Cir. 2004). 46 Docket 1 at 6–8; Docket 10. Petitioner also asserts that he has been denied “access to the courts.” 27 Docket 10 at 7, 13. The Court construes this contention not as a separate claim for relief, but rather as an argument for why the Court should not abstain from considering Petitioner’s claims and should 28 waive the exhaustion requirement. See Docket 10 at 13. 1 be “removed from the record.”47 Petitioner alternatively requests the more limited relief of
2 “remedy[ing] the state court’s excessive bail” through an order directing his immediate release
3 from pretrial detention.48 Respondent asks this Court to dismiss Petitioner’s claims based on
4 the doctrines of Younger abstention and exhaustion, or, in the alternative, to deny Petitioner’s
5 claims on the merits.49
6 As explained below, the Court recommends that Petitioner’s claims be dismissed
7 because (1) any denial of a preliminary examination cannot be remedied in a federal habeas
8 proceeding; (2) it is appropriate to abstain from considering Petitioner’s remaining claims to
9 the extent that Petitioner seeks to end his state prosecution; and (3) Petitioner has failed to
10 exhaust his state court remedies.
11 A. The Court Lacks Jurisdiction Over Petitioner’s Claim that He Has Been 12 Denied a Preliminary Examination.
13 The Court first addresses Petitioner’s claim that he has been denied a preliminary
14 examination despite being “charged with felonies without an [indictment].”50 Petitioner states
15 that the judge presiding over his initial appearance failed to inform him of his right to a
16 preliminary examination.51 Although Petitioner does not identify the legal basis for this claim, 17 it is clear that any lack of a preliminary examination does not entitle him to federal habeas relief. 18 Under Alaska Rule of Criminal Procedure 5(e)(2), “[a] defendant is entitled to a 19 preliminary examination if the defendant is charged with a felony for which the defendant has 20 not been indicted[.]” This rule also requires the judge to inform the defendant of this right at 21 the defendant’s first appearance.52 The Federal Rules of Criminal Procedure contain similar 22 procedural protections for defendants who have been charged with a felony but who have not 23 yet been indicted by a grand jury.53 However, to the extent that Petitioner seeks relief based 24
25 47 Docket 1 at 8; Docket 10 at 2. 48 Docket 10 at 2, 16. 26 49 Docket 13 at 1–2. 50 Docket 1 at 7. 27 51 Id. 52 Alaska R. Crim. P. 5(e)(2). 28 53 Fed. R. Crim. P. 5(d)(1)(D), 5.1(a). 1 on a violation of the Alaska or Federal Rules of Criminal Procedure, any such error is not
2 redressable here because “federal habeas corpus relief does not lie for errors of state law,”54
3 and because the Federal Rules of Criminal Procedure have no application in Petitioner’s
4 underlying state proceedings.55 Furthermore, the U.S. Constitution “does not secure to a state
5 court defendant the right to a preliminary [exam ination],”56 and therefore such a defendant “is
6 not entitled to the issuance of a writ because [they] had no preliminary examination.”57
7 Accordingly, this Court cannot grant habeas relief to Petitioner based on any failure to hold a
8 preliminary examination.58
9 The Court therefore recommends that Petitioner’s denial of a preliminary examination
10 claim be dismissed for lack of jurisdiction.
11 B. Abstention Applies to Petitioner’s Claims to the Extent that 12 Petitioner Seeks Dismissal of His State Case.
13 In Younger v. Harris, the U.S. Supreme Court held that federal courts “should abstain
14 from staying or enjoining pending state criminal prosecutions absent extraordinary
15 circumstances.”59 “Younger abstention is a jurisprudential doctrine rooted in overlapping
16 principles of equity, comity, and federalism.”60 The doctrine “is motivated by the need to 17 54 Lewis v. Jeffers, 497 U.S. 764, 780 (1990). 18 55 U.S. ex rel. Gaugler v. Brierley, 477 F.2d 516, 523 (3d Cir. 1973) (explaining that the Federal Rules of Criminal Procedure “do not extend to prosecutions in state courts for violations of state criminal laws” 19 and “govern only prosecutions in federal courts for violation of criminal laws of the United States”); accord Cameron v. Hauck, 383 F.2d 966, 971 n. 7 (5th Cir. 1967) (“The Federal Rules [of Criminal 20 Procedure] do not apply to state cases.”); see also Fed. R. Crim. P. 1(a)(1) (“These rules govern the procedure in all criminal proceedings in the United States district courts . . . .”). 21 56 Ramirez v. Arizona, 437 F.2d 119, 119–20 (9th Cir. 1971). 57 Burall v. Johnston, 146 F.2d 230, 230 (9th Cir. 1944) (citing Garrison v. Johnston, 104 F.2d 128, 130 (9th 22 Cir. 1939)). 58 Because a grand jury has returned an indictment in Petitioner’s state case, “no reason exists for 23 conducting a hearing to determine whether probable cause exists for detaining [him].” Maze v. State, 425 P.2d 235, 236 (Alaska 1967) (internal quotation marks and citation omitted); see also id. (“The main 24 purpose of a preliminary [examination] is to protect the accused from unwarranted incarceration while awaiting action by the grand jury, by determining whether there is a basis for holding him until the 25 grand jury has reviewed the facts.” (internal quotation marks and citation omitted)); Austin v. United States, 408 F.2d 808, 810 (9th Cir. 1969) (“The return of an indictment establishes probable cause, and 26 eliminates the need for a preliminary examination.”). 59 Bean v. Matteucci, 986 F.3d 1128, 1133 (9th Cir. 2021) (citing Younger v. Harris, 401 U.S. 37, 45 (1971)). 27 60 Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (internal quotation marks omitted) (quoting San Jose Silicon Valley Chamber of Commerce Pol. Action Comm. v. City of San Jose, 546 F.3d 1087, 1091–92 (9th 28 Cir. 2008), abrogated on other grounds by Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69 (2013)). 1 refrain from granting injunctive relief where a litigant has adequate legal remedies and therefore
2 does not face immediate irreparable injury, and by the ‘even more vital consideration’ of
3 comity.”61 If the Younger doctrine applies, the court will dismiss claims for equitable relief.62
4 “Younger abstention is appropriate when: (1) there is an ongoing state judicial
5 proceeding; (2) the proceeding implicates imp ortant state interests; (3) there is an adequate
6 opportunity in the state proceedings to raise constitutional challenges; and (4) the requested
7 relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial
8 proceeding.”63 If these four requirements are met, a federal court will abstain from exercising
9 jurisdiction over the case unless there is “a showing of bad faith, harassment, or some other
10 extraordinary circumstance that would make abstention inappropriate.”64
11 The Ninth Circuit has recognized an “irreparable harm” exception to Younger abstention
12 that applies only “under extraordinary circumstances where the danger of irreparable loss is
13 both great and immediate.”65 The Ninth Circuit has applied this limited exception to a pretrial
14 detainee’s “colorable claim that a state prosecution [would] violate the Double Jeopardy
15 Clause,”66 to “a challenge to pretrial detention on the basis of a stale and scientifically invalid
16 probable cause determination,”67 to “a pretrial detainee’s claim that he had been incarcerated 17 for over six months without a constitutionally adequate bail hearing,”68 and to a pretrial 18 detainee’s challenge to the “forcible administration of antipsychotic medications.”69 However, 19 the Ninth Circuit has explained that the irreparable harm exception does not typically apply 20 when a pretrial detainee seeks to vindicate an affirmative constitutional defense that can be 21 completely vindicated through “reversal of the improperly-obtained conviction.”70 22 Here, the first, second, and fourth elements of Younger are clearly satisfied with respect 23 61 Duke v. Gastelo, 64 F.4th 1088, 1095 (9th Cir. 2023) (quoting Younger, 401 U.S. at 44). 24 62 See Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir. 2004) (en banc). 63 Page v. King, 932 F.3d 898, 901–02 (9th Cir. 2019). 25 64 Bean, 986 F.3d at 1133 (quoting Arevalo, 882 F.3d at 765). 65 Id. (quoting World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987)). 26 66 Id. at 1133–34 (quoting Dominguez v. Kernan, 906 F.3d 1127, 1131 n.5 (9th Cir. 2018)). 67 Id. at 1134 (citing Page, 932 F.3d at 904). 27 68 Id. (citing Arevalo, 882 F.3d at 766–67). 69 Id. at 1135. 28 70 Bean, 986 F.3d at 1133 (internal quotation marks omitted) (quoting Page, 932 F.3d at 904). 1 to all federal claims for which Petitioner seeks dismissal of his state criminal charges.71
2 Petitioner’s criminal proceeding is still ongoing in state court. In addition, the State of Alaska
3 has an important interest in enforcing its laws, including prosecuting the criminal offenses with
4 which Petitioner has been charged.72 And dismissing Petitioner’s state case—the primary form
5 of relief Petitioner requests—would “enjoin [th e prosecution] altogether,” the “most offensive
6 and intrusive action that a federal court can take with respect to a state proceeding.”73
7 The Court further finds that the third element of Younger is satisfied, despite Petitioner’s
8 argument to the contrary. Petitioner contends that he lacks an adequate opportunity to raise
9 federal constitutional claims in his state criminal case because (1) he has not always been
10 transported for court hearings, thus depriving him of an opportunity to bring issues to the
11 Superior Court’s attention; (2) defense counsel has requested or acquiesced to continuances
12 without his consent; (3) defense counsel “has not kept [him] informed of the status of the
13 case”; and (4) the Superior Court will not accept his pro se filings due to his representation by
14 counsel, thereby preventing him from filing written objections or motions that he wishes to
15 litigate.74
16 Any decision by Petitioner’s defense counsel not to pursue certain federal constitutional 17 affirmative defenses in his state proceeding does not render state procedures inadequate for 18 purposes of Younger. The key question with respect to Younger’s third element is “whether there 19 remains an opportunity to litigate the federal claim in a state-court proceeding at the time the 20 federal court is considering whether to abstain.”75 An adequate opportunity exists so long as 21
22 71 Petitioner suggests that all of his claims provide a basis to dismiss his state charges. See Docket 10 at 2. 23 72 See Younger, 401 U.S. at 45; see also Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“The States’ interest in administering their criminal justice systems free from federal interference is one of the most powerful 24 of the considerations that should influence a court considering equitable types of relief.”); Gibson v. Schmidt, 522 F. Supp. 3d 804, 815 (D. Or. 2021) (holding that state prosecutions at issue “clearly 25 implicate[d] important state interests” because plaintiffs had been “charged in Oregon state courts with violating an Oregon criminal statute”). 26 73 Gilbertson, 381 F.3d at 977; see also Arevalo, 882 F.3d at 766 (holding that Younger abstention was not appropriate where requiring state court to hold a constitutionally compliant bail hearing “would not 27 interfere with [the state prosecution]”). 74 Docket 10 at 14. 28 75 Duke, 64 F.4th at 1096. 1 there are no “‘procedural bars’ to raising a federal claim in the state proceedings.”76
2 “[O]rdinarily a pending state prosecution provides the accused a fair and sufficient opportunity
3 for vindication of federal constitutional rights.”77 “A federal court should assume that state
4 procedures will afford an adequate remedy, in the absence of unambiguous authority to the
5 contrary.”78
6 Here, Petitioner has failed to show that he is procedurally barred from raising federal
7 constitutional claims in his state case by anything other than a difference of opinion with his
8 defense counsel. That does not amount to Petitioner having “no prospect of presenting his
9 constitutional challenges” in his state case.79 In addition, Petitioner has no “absolute right to
10 both self-representation and the assistance of counsel,”80 and he cannot use his choice to be
11 represented by counsel to bypass ordinary state court review and have his claims heard in
12 federal court. The Court concurs with Respondent that any strategic disagreements that
13 Petitioner may have with his defense counsel over motions to bring “can (and should) be raised
14 in a state post-conviction relief action, and the failure to do so should not be used as an excuse
15 to avoid Younger abstention.”81
16 For similar reasons, the Court also disagrees with Petitioner’s assertion that his 17 purported inability to “access . . . the courts” and the resulting “extreme and unacceptable 18 delay” in his state case are extraordinary circumstances that make abstention inappropriate.82 19 Even when delays in bringing a case to trial could rise to a violation of Speedy Trial Clause, any 20 such violation does not “suffice in and of itself as an independent ‘extraordinary circumstance’ 21 76 Commc’ns Telesys. Int’l v. Cal. Pub. Util. Comm’n, 196 F.3d 1011, 1020 (9th Cir. 1999) (citing Middlesex 22 Cnty. Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)); see also Gilbertson, 381 F.3d at 983 (“[F]ailure to avail himself of the opportunity [to present constitutional claims in the state 23 proceeding] does not mean that the state procedures are inadequate.” (citing Juidice, 430 U.S. at 337)). 77 Duke, 64 F.4th at 1095 (internal quotation marks omitted) (quoting Kugler v. Helfant, 421 U.S. 117, 24 124 (1975)). 78 Meredith v. Oregon, 321 F.3d 807, 818 (9th Cir. 2003) (internal quotation marks omitted) (quoting 25 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987)). 79 Duke, 64 F.4th at 1098. 26 80 United States v. Mujahid, 799 F.3d 1228, 1236 (9th Cir. 2015) (quoting United States v. Bergman, 713 F.2d 1027, 1030 (9th Cir. 1987)). 27 81 Docket 13 at 28. 82 Docket 10 at 13, 15. Petitioner does not allege, and the record does not support, that his state 28 prosecution is motivated by bad faith or a desire to harass. See Bean, 986 F.3d at 1133. 1 necessitating pre-trial habeas consideration.”83 It is true that the Ninth Circuit has “in rare
2 cases declined to abstain where the state court delay was extreme and there was ‘no end in
3 sight’ to the state court proceedings.”84 However, even if the Court were to agree that the
4 four-year delay in bringing Petitioner to trial is “extreme” within the meaning of Younger,85 there
5 is a definite end in sight, as Petitioner’s trial is c urrently scheduled to begin the week of January
6 12, 2026. Although Petitioner’s trial has been rescheduled numerous times before, it appears
7 that the possibility of significant further delay is relatively small in light of recent measures the
8 Alaska courts have taken to address the backlog of unresolved criminal cases in Palmer and
9 throughout the state. Most notably, in May 2025, the Alaska Supreme Court issued an order
10 requiring trial courts in criminal cases filed before 2023 to limit additional exclusions of a
11 defendant’s state statutory speedy trial time to a maximum of 90 days for defense-requested
12 continuances, absent “a showing that extraordinary circumstances exist and that [a] delay
13 [beyond those 90 days] is indispensable to the interest of justice[.]”86
14 Furthermore, the Ninth Circuit has held that “Younger abstention is appropriate even in
15 cases of extreme delay where there is ‘no indication that the state court has been ineffective,’
16 and where the delay is instead ‘attributable to the petitioner’s quite legitimate efforts in state 17
18 83 Brown v. Ahern, 676 F.3d 899, 901 (9th Cir. 2012) (citing Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)). 19 84 Page, 932 F.3d at 902–93 (quoting Edelbacher v. Calderon, 160 F.3d 582, 586 (9th Cir. 1998)). 85 See id. at 903 (observing that “even if . . . [a] delay in bringing [the petitioner] to trial would support 20 a speedy trial defense . . . , it does not follow that the delay is an extraordinary circumstance in the meaning of Younger”); Phillips v. Vasquez, 56 F.3d 1030, 1035 (9th Cir. 1995) (holding that a 15-year 21 delay in which the petitioner was denied the opportunity to establish the unconstitutionality of his conviction on appeal was an extraordinary circumstance that warranted federal habeas review); see also 22 Phillips, 56 F.3d at 1036 (“Comity concerns in this case are practically nonexistent since the state has had a full and fair opportunity to review the validity of Phillips’ conviction and its decision regarding 23 that conviction is final.”). 86 Alaska Supreme Court Order No. 2083 (May 12, 2025); see also Third Judicial District Presiding 24 Judge Order # 1062 (Apr. 17, 2025) (limiting circumstances in which continuances may be granted, requiring that certain information be presented at every pretrial conference, and requiring defendant’s 25 appearance at all hearings in any case that has been pending for one year or more); Third Judicial District Presiding Judge Order # 1063 (May 21, 2025) (noting “substantial backlog of unresolved 26 criminal cases” in Palmer and authorizing Palmer judges to vacate “certain previously scheduled civil matters to allow for the scheduling and resolution of older criminal cases”). The Alaska Supreme 27 Court also limited further exclusions due to prosecution-requested continuances to 90 days, and further exclusions for “good cause” to 90 days. Alaska Supreme Court Order No. 2083 (May 12, 28 2025). 1 court to escape guilt’ through litigation.”87 As Respondent has demonstrated, there is no
2 indication that the state court has been ineffective here: a significant proportion of the delay in
3 Petitioner’s case has been due to defense-requested continuances, with the remainder due to
4 the COVID-19 pandemic and a courthouse flood.88 Even if Petitioner’s defense counsel
5 initially requested continuances without Pet itioner’s knowledge, that would not be an
6 extraordinary circumstance warranting this Court’s intervention in Petitioner’s ongoing state
7 prosecution.89 Petitioner has provided no evidence that his defense counsel has failed to render
8 effective assistance or that the defense-requested continuances have been for any reason other
9 than to prepare to defend Petitioner at trial. Even if Petitioner had made such a showing, the
10 more appropriate avenue for relief at this stage would be with the Superior Court, which could
11 remedy any issues by appointing new defense counsel.90
12 In sum, the Court concludes that the elements of Younger are met and that no exception
13 to the doctrine applies. The Court therefore recommends dismissing Petitioner’s claims to the
14 extent that Petitioner seeks to end his state prosecution by “litigat[ing] constitutional defenses
15 prematurely in federal court.”91
16 // 17 // 18 // 19 87 Page, 932 F.3d at 902–93 (quoting Edelbacher, 160 F.3d at 586). 20 88 Docket 13 at 3–11. 89 Cf. United States v. Guerra de Aguilera, 600 F.2d 752, 753 (9th Cir. 1979) (“Litigants are generally bound 21 by the conduct of their attorneys, absent egregious circumstances.”); Taylor v. Illinois, 484 U.S. 400, 417– 18 (1988) (“The argument that the client should not be held responsible for his lawyer’s misconduct 22 strikes at the heart of the attorney-client relationship. Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer 23 has—and must have—full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval.”); United States v. Lam, 251 24 F.3d 852, 858 (9th Cir.) (“[A]bsent a showing of deficient performance on counsel’s part, we decline to permit a defendant’s interest in a speedy trial to override his attorney's legitimate assessment of the 25 complexity of a case and his corresponding need to prepare.”), as amended on denial of reh’g and reh’g en banc, 262 F.3d 1033 (9th Cir. 2001). 26 90 The Court observes that Petitioner has had three representation hearings in the past year, none of which resulted in a change in representation. The Court cannot second-guess the Superior Court’s 27 judgment in declining to order new representation on this record or at this time. 91 Brown, 676 F.3d at 902 (internal quotation marks omitted) (quoting Braden v. 30th Jud. Cir. Ct. of Ky., 28 410 U.S. 484, 493 (1973)). 1 C. Petitioner Has Not Exhausted His Excessive Bail Claim in the Alaska State Courts and the Exhaustion Requirement Should Not Be Waived. 2
3 “[A] state prisoner must normally exhaust available state judicial remedies before a
4 federal court will entertain [their] petition for habeas corpus.”92 A petitioner’s claims are
5 considered exhausted only after “the state courts [have been afforded] a meaningful
6 opportunity to consider allegations of legal error without interference from the federal
7 judiciary.”93 “[S]tate prisoners must give the state courts one full opportunity to resolve any
8 constitutional issues by invoking one complete round of the State’s established appellate review
9 process.”94
10 Although 28 U.S.C. § 2241(c)(3) does not explicitly require exhaustion, federal courts
11 “require, as a prudential matter, that habeas petitioners exhaust available judicial . . . remedies
12 before seeking relief under § 2241.”95 “Where a petitioner seeks pre-conviction habeas relief,
13 [the] exhaustion prerequisite serves two purposes: (1) to avoid isolating state courts from
14 federal constitutional issues by assuring those courts an ample opportunity to consider
15 constitutional claims; and (2) to prevent federal interference with state adjudication, especially
16 state criminal trials.”96 Even though prudential exhaustion “is not a prerequisite to the exercise 17 of jurisdiction,”97 prudential limits “are ordinarily not optional.”98 Therefore, district courts 18 are generally “not free to address the underlying merits [of a § 2241 petition] without first 19 determining the exhaustion requirement has been satisfied or properly waived.”99 Courts may 20 waive the exhaustion requirement in § 2241 cases where any attempt to exhaust remedies would 21 be futile,100 where such remedies would be “inadequate or not efficacious,” or where 22
23 92 Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). 93 Vasquez v. Hillery, 474 U.S. 254, 257 (1986) (citing Rose v. Lundy, 455 U.S. 509, 515 (1982)). 24 94 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 95 Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citation omitted). 25 96 Carden, 626 F.2d at 83–84. 97 Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1037 (9th Cir. 2010) (internal quotation marks and citation 26 omitted). 98 Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001), overruled on other grounds by Fernandez-Vargas 27 v. Gonzales, 548 U.S. 30 (2006). 99 Laing, 370 F.3d at 998. 28 100 Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). 1 “irreparable injury” would result.101 A petitioner bears the burden of demonstrating that at
2 least one of these factors applies.102
3 It is undisputed that Petitioner has not exhausted his state court remedies with respect
4 to any of the claims asserted in his Petition.103 Petitioner nevertheless suggests that the
5 exhaustion requirement should be excused for the same reasons he contended Younger
6 abstention was not appropriate: the combination of the delays and his purported inability to
7 litigate his claims in his state case.104 Because the only claim the Court has not yet addressed
8 is Petitioner’s excessive bail claim insofar as Petitioner seeks a remedy of immediate release
9 from pretrial detention,105 the Court limits its analysis to that claim.
10 Petitioner claims that his pretrial detention violates the Eighth Amendment’s
11 prohibition against excessive bail.106 Petitioner reasons that the bail amount set by the Superior
12 Court—a $75,000 cash appearance bond and a $100,000 cash performance bond—is
13 “essentially unattainable” due to his indigence and incarceration.107 Petitioner further suggests
14 that this amount is beyond what is needed to assure his appearance at trial because he has “deep
15 ties to the community” and no convictions for failure to appear in court.108
16 Respondent maintains that Petitioner has offered no valid excuse for failing to exhaust 17 his excessive bail claim by seeking appellate review of the Superior Court’s bail decisions.109 18 Respondent observes that although Alaska law allows criminal defendants to file an expedited 19 bail appeal of a trial court’s bail rulings in the Alaska Court of Appeals, Petitioner failed to 20 appeal any of the Superior Court’s bail rulings in his state case.110 Respondent contends that
21 101 Laing, 370 F.3d at 1000 (describing these exceptions in the context of administrative remedies and concluding that “[s]imilar concerns govern a court’s determination of whether to excuse a failure to 22 exhaust judicial remedies”); see also Perez v. Ledesma, 401 U.S. 82, 85 (1971) (holding that “special circumstances” can excuse failure to exhaust in “cases of proven harassment or prosecutions 23 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”). 24 102 See Leonardo v. Crawford, 646 F.3d 1157, 1161–62 (9th Cir. 2011). 103 Docket 10 at 12–13; Docket 13 at 33. 25 104 Docket 10 at 12–13. 105 See id. at 16. 26 106 Id. at 16–17. 107 Id. 27 108 Id. 109 Docket 13 at 33–34. 28 110 Id. (citing AS 12.30.030(a); Alaska R. App. P. 207). 1 Petitioner’s complaints about his attorney’s conduct do not justify his failure to pursue this
2 remedy.111 The Court agrees.
3 Petitioner has not shown that exhaustion of his excessive bail claim would be futile, that
4 an appeal would be inadequate or not efficacious, or that irreparable injury would result from
5 declining to waive the exhaustion requirement. To the extent that Petitioner faults his defense
6 counsel for not pursuing available appeals, that is not a valid basis to override the exhaustion
7 requirement. Similarly, to the extent that Petitioner suggests that he was unable to exhaust his
8 excessive bail claim because he was not present at all three of the bail hearings he has had,112
9 that does not excuse his failure to exercise his right to appeal any of the Superior Court’s
10 ensuing rulings. The record demonstrates that Petitioner, through his defense counsel, can and
11 has repeatedly challenged the security amount as initially set, including at the March 2022 bail
12 hearing at which Petitioner acknowledges he was present.113
13 Accordingly, the Court finds that Petitioner has failed to demonstrate any basis to waive
14 the prudential exhaustion requirement. The Court therefore recommends that Petitioner’s
15 excessive bail claim, to the extent that Petitioner seeks release from pretrial detention, be
16 dismissed for failure to exhaust his state court remedies. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 111 Id. at 34. 27 112 See Docket 15 at 10. The Court notes that the record contradicts Petitioner’s unsupported assertion that he was not present at all of his bail hearings. See Docket 13-3 at 30, 35, 37; see also Docket 10-2. 28 113 Docket 13-3 at 30–33, 35, 37–38. 1 IV. CONCLUSION 2 Because Petitioner’s claims are not cognizable in federal habeas, subject to Younger 3 | abstention, or unexhausted, the Court recommends that they be DISMISSED without 4 | prejudice.!'* A certificate of appealability should not issue.!! 5 DATED this 25th day of June, 2025, at Anchorage pyska, oe YO» 6 S RS ST & Vee ey,
8 KYABE REN RDO Unitech StarenMrelistrate Judge 9 District of Afaska 10 11 NOTICE OF RIGHT TO OBJECT 12 Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge to hear 13 || and determine matters pending before the Court. For dispositive matters, a magistrate judge 14 || reports findings of fact and provides recommendations to the presiding district court □□□□□□□□ 15 | A district court judge may accept, reject, or modify, in whole or in part, the magistrate judge’s 16 | otder.!!” 17 A party may file written objections to the magistrate judge’s order within 14 fourteen 18 | days.'!8 Objections and responses are limited to five (5) pages in length and should not merely 19 || reargue positions previously presented. Rather, objections and responses should specifically 20 | identify the findings or recommendations objected to, the basis of the objection, and any legal 21 | ' Because the Court recommends that Petitioner’s claims be dismissed as unexhausted or subject to Younger abstention, it declines to address Respondent’s arguments for denial of Petitioner’s claims on 22 || the merits. "S See 28 U.S.C. § 2253(c)(1)(A); see also Wilson v. Belleque, 554 F.3d 816, 825 (9th Cir. 2009) (“[A] state 23 || prisoner who is proceeding under § 2241 must obtain a [Certificate of Appealability}] under § 2253(c)(1)(A) in order to challenge process issued by a state court.”); Sdack v. McDaniel, 529 US. 473, 24 | 484 (2000) (holding that a certificate of appealability may be granted only if the applicant made “substantial showing of the denial of a constitutional right,” 2¢., showing that “reasonable jurists could 25 || 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 26 | citations omitted)). Petitioner may request a certificate of appealability from the Ninth Circuit Court of Appeals. 27 | "6 28 U.S.C. § 636(b)(1)(B). "7 Td. § 636(b)(1)(C). 28 gs Ty R&R re § 2241 Petition 16 Hawes v. Angol
1 authority in support. Reports and recommendations are not appealable orders. Any notice of
2 appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s
3 judgment.119
16 17 18 19 20 21 22 23 24 25 26 27
28 119 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).