Petitioner,
v. Case No. 3:24-cv-00124-SLG-KFR
Respondent.
REPORT AND RECOMMENDATION RE § 2241 PETITION
Before the Court are a pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241 and a counseled Amended § 2241 Petition (collectively, “Petition”) filed by Petitioner
Robert Hawes.1 Respondent Superintendent Angol answered the Petition,2 and Petitioner
replied.3 The Court finds that Petitioner’s claims must be dismissed because they are not
cognizable in a federal habeas proceeding, they are subject to Younger abstention, or they are
unexhausted. Petitioner has not articulated any circumstances that could justify this Court’s
consideration of his federal claims at this time. Therefore, the Court recommends that
Petitioner’s claims be DISMISSED without prejudice.
Petitioner is a pretrial detainee at Goose Creek Correctional Center in the custody of
the State of Alaska Department of Corrections.4 The Court takes judicial notice of the docket
records in Petitioner’s ongoing state criminal case, State of Alaska v. Hawes, Case No. 3PA-21-
01098CR.5 The following facts are gleaned from those records and from the additional state
1 Docket 1; Docket 10. In the Amended Petition, counsel notes that Petitioner declined to waive the grounds for relief raised in the pro se Petition that are not discussed in the Amended Petition. See Docket 10 at 5. 2 Docket 13. 3 Docket 15. 4 Docket 1 at 1. 5 Judicial notice is the “court’s acceptance, for purposes of convenience and without requiring a party’s court records provided by Respondent.6
On June 6, 2021, the State of Alaska (“State”) filed a criminal complaint in the Third
Judicial District of Alaska, in Palmer, charging Petitioner with three counts of first-degree
sexual abuse of a minor.7 Petitioner was arraigned that same day before the Palmer District
Court.8 At Petitioner’s arraignment, the Cou rt appointed counsel from the Alaska Public
Defender Agency to represent Petitioner, set bail at a $75,000 cash appearance bond and a
$100,000 cash performance bond, and scheduled a preliminary hearing for ten days later.9
On June 11, 2021, a grand jury returned an indictment charging Petitioner with two
counts of first-degree sexual abuse of a minor, one count of attempted first-degree sexual abuse
of a minor, and one count of second-degree sexual abuse of a minor.10 On June 14, 2021, the
State filed the indictment in Petitioner’s case, and the case was transferred to the Palmer
Superior Court.11 In addition, the previously scheduled preliminary hearing was vacated.12 On
June 16, 2021, Petitioner was arraigned on the indictment before the Superior Court.13 At the
arraignment, the Superior Court ordered that Petitioner’s bail conditions remain as previously
set.14 The Superior Court also scheduled trial to begin the week of September 27, 2021.15
Since then, Petitioner’s trial has repeatedly been continued. Some of the delay has been due to circumstances entirely outside Petitioner’s control. In August 2021, the Third Judicial District’s presiding judge ordered that all jury trials in the district be suspended due to the public health risk posed by elevated rates of COVID-19.16 That suspension ultimately lasted 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 Serv., 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)). 6 See Docket 13-1–16. 7 Docket 13-1; Docket 13-2 at 4. 8 Docket 13-2 at 2. 9 Id. at 4–5; Docket 13-3 at 42. 10 Docket 13-4. 11 Docket 13-2 at 5. 12 Id. at 2. 13 Id. 14 Id. at 5; Docket 13-3 at 30. 15 Docket 13-5. 16 Third Judicial District Presiding Judge Order # 894 (Aug. 4, 2021); see also Special Order of the until mid-January 2022.17 But just before jury trials were set to recommence, the Palmer
courthouse experienced “extensive flooding . . . as a result of [a] recent extraordinary weather
event in the Matanuska-Susitna Borough.”18 Because of this flooding and the resulting
incapacity of the courthouse, the presiding judge suspended jury trials in Palmer pending
further notice.19 In March 2022, the presiding judge issued an order allowing some criminal
jury trials to be moved from Palmer to Anchorage based on limited available space in the
Anchorage courthouse.20
The rest of the delay has been due to continuances requested by the parties. Neither
the publicly available records nor the records provided by Respondent consistently indicate
which party requested a continuance in each instance; however, they do show that Petitioner’s
defense counsel has requested at least eleven.21 Following the most recent continuance granted
in April 2025, Petitioner’s trial is now scheduled to begin the week of January 12, 2026.
During the pendency of Petitioner’s state case, Petitioner has had three bail review
hearings.22 In October 2021, Petitioner requested that his bail be reduced to $3,000 with
supervision by the Department of Corrections Pretrial Enforcement Division.23 The Superior
Court held a bail review hearing on October 27, 2021, at which the court found that Petitioner was a flight risk and had failed to present adequate financial information or propose a third- party custodian.24 The Superior Court thus declined to alter Petitioner’s bail.25 In December
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 comply with local health mandates”); Docket 13-6. 17 Third Judicial District Presiding Judge Order # 899 (Aug. 23, 2021); Third Judicial District 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 (Nov. 23, 2021). 18 Third Judicial District Presiding Judge Order # 918 (Jan. 4, 2022). 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 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, 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 on December 4, 2022). 22 Docket 13-8; Docket 13-9. 23 Docket 13-8. 24 Docket 13-3 at 37–38. The minutes of this proceeding indicate that Petitioner was present. 25 Id. at 37–38. 2021, Petitioner submitted the same bail proposal again, but with additional information
regarding his finances.26 The Superior Court held a bail review hearing on January 4, 2022, at
which the court again declined to reduce Petitioner’s bail, noting that the information provided
by Petitioner was incomplete.27 And in March 2022, Petitioner proposed reducing his bail to
$6,000 with a third-party custodian.28 The Sup erior Court held a bail review hearing on March
30, 2022, at which the court allowed the parties to examine the proposed third-party custodian
and give argument.29 Reasoning that the proposed third-party custodian was not strong enough
to warrant a reduction in bail, the Superior court denied Petitioner’s bail proposal.30 Petitioner
did not appeal any of the Superior Court’s bail rulings.31
Petitioner has also attempted to file several pro se motions in his state case, including a
motion to dismiss the indictment on speedy trial grounds filed in August 2024 and a motion
for a representation hearing filed in September 2024.32 The Superior Court rejected Petitioner’s
motions as improperly filed under state procedural rules prohibiting parties who are
represented by an attorney from acting on their own behalf.33 In December 2024, Petitioner’s
defense attorney requested a representation hearing; the Superior Court granted that request
and held a representation hearing on December 16, 2024.34 Neither that hearing nor the two other representation hearings Petitioner has had in his state case resulted in a change in representation.35 On June 7, 2024, Petitioner commenced this action by filing a pro se Petition for a Writ
26 Docket 13-9. 27 Docket 13-3 at 35. The minutes of this proceeding indicate that Petitioner was present. 28 Docket 13-10. 29 Docket 13-3 at 30–33. 30 Id. 31 On June 5, 2023, Petitioner requested another bail review hearing, which the Superior Court denied 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 bail.” Docket 13-11. 32 Docket 13-12; Docket 13-13; Docket 13-14. 33 Docket 13-2 at 7–9 (citing Alaska R. Crim. P. 50; Alaska R. Civ. P. 81(c)). 34 Id. at 9. 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 https://records.courts.alaska.gov/eaccess/searchresults.page?x=VY2vNgrY3NdjLxeHyPalSxogmJ5s LPDfqKsgGWlAOLjEg344xuvmmTUGuK4HlqYdIOKIyW7sxkwcV2ncGTx-Kg (last visited June 12, 2025). The record contains no other information regarding what transpired at those hearings. of Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging his pretrial detention on four
grounds.36 The Court subsequently issued an order directing service on Respondent.37
Petitioner then requested the appointment of counsel to represent him in this proceeding;38
the Court granted this request.39 Appointed counsel filed an Amended § 2241 Petition that
supplements two of the grounds for relief rais ed in Petitioner’s pro se Petition, and that does
not waive the two other grounds raised in the pro se Petition.40 (For ease of reference, the Court
will refer to the pro se Petition and the counseled Amended Petition, collectively, as the
“Petition.”) Respondent answered,41 and Petitioner replied.42
28 U.S.C. § 2241 authorizes a federal court to entertain a petition for writ of habeas
corpus from a person claiming to be “in custody in violation of the Constitution or laws or
treaties of the United States.”43 Habeas corpus is “a vital ‘instrument for the protection of
individual liberty’ against government power.”44 A pretrial detainee may challenge their state
custody in a habeas petition brought under § 2241.45
In the instant Petition, Petitioner asserts four claims: (1) the Superior Court has imposed excessive bail that Petitioner cannot afford; (2) Petitioner has been denied a preliminary examination; (3) Petitioner’s indictment is procedurally and substantively “flawed”; and (4) Petitioner’s right to a speedy trial has been violated.46 For relief, Petitioner asks this Court to order that his pending state criminal charges be dismissed with prejudice, and that those charges
36 Docket 1. 37 Docket 4. 38 Docket 5. 39 Docket 8. 40 Docket 10 at 5. 41 Docket 13. 42 Docket 15. 43 28 U.S.C. § 2241(a), (c)(3). 44 Gage v. Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015) (quoting Boumediene v. Bush, 553 U.S. 723, 743 (2008)). 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.” 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 waive the exhaustion requirement. See Docket 10 at 13. be “removed from the record.”47 Petitioner alternatively requests the more limited relief of
“remedy[ing] the state court’s excessive bail” through an order directing his immediate release
from pretrial detention.48 Respondent asks this Court to dismiss Petitioner’s claims based on
the doctrines of Younger abstention and exhaustion, or, in the alternative, to deny Petitioner’s
claims on the merits.49
As explained below, the Court recommends that Petitioner’s claims be dismissed
because (1) any denial of a preliminary examination cannot be remedied in a federal habeas
proceeding; (2) it is appropriate to abstain from considering Petitioner’s remaining claims to
the extent that Petitioner seeks to end his state prosecution; and (3) Petitioner has failed to
exhaust his state court remedies.
A. The Court Lacks Jurisdiction Over Petitioner’s Claim that He Has Been Denied a Preliminary Examination.
The Court first addresses Petitioner’s claim that he has been denied a preliminary
examination despite being “charged with felonies without an [indictment].”50 Petitioner states
that the judge presiding over his initial appearance failed to inform him of his right to a
preliminary examination.51 Although Petitioner does not identify the legal basis for this claim, it is clear that any lack of a preliminary examination does not entitle him to federal habeas relief. Under Alaska Rule of Criminal Procedure 5(e)(2), “[a] defendant is entitled to a preliminary examination if the defendant is charged with a felony for which the defendant has not been indicted[.]” This rule also requires the judge to inform the defendant of this right at the defendant’s first appearance.52 The Federal Rules of Criminal Procedure contain similar procedural protections for defendants who have been charged with a felony but who have not yet been indicted by a grand jury.53 However, to the extent that Petitioner seeks relief based
47 Docket 1 at 8; Docket 10 at 2. 48 Docket 10 at 2, 16. 49 Docket 13 at 1–2. 50 Docket 1 at 7. 51 Id. 52 Alaska R. Crim. P. 5(e)(2). 53 Fed. R. Crim. P. 5(d)(1)(D), 5.1(a). on a violation of the Alaska or Federal Rules of Criminal Procedure, any such error is not
redressable here because “federal habeas corpus relief does not lie for errors of state law,”54
and because the Federal Rules of Criminal Procedure have no application in Petitioner’s
underlying state proceedings.55 Furthermore, the U.S. Constitution “does not secure to a state
court defendant the right to a preliminary [exam ination],”56 and therefore such a defendant “is
not entitled to the issuance of a writ because [they] had no preliminary examination.”57
Accordingly, this Court cannot grant habeas relief to Petitioner based on any failure to hold a
preliminary examination.58
The Court therefore recommends that Petitioner’s denial of a preliminary examination
claim be dismissed for lack of jurisdiction.
B. Abstention Applies to Petitioner’s Claims to the Extent that Petitioner Seeks Dismissal of His State Case.
In Younger v. Harris, the U.S. Supreme Court held that federal courts “should abstain
from staying or enjoining pending state criminal prosecutions absent extraordinary
circumstances.”59 “Younger abstention is a jurisprudential doctrine rooted in overlapping
principles of equity, comity, and federalism.”60 The doctrine “is motivated by the need to 54 Lewis v. Jeffers, 497 U.S. 764, 780 (1990). 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” 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 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 . . . .”). 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 Cir. 1939)). 58 Because a grand jury has returned an indictment in Petitioner’s state case, “no reason exists for 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 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 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 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)). 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 Cir. 2008), abrogated on other grounds by Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69 (2013)). refrain from granting injunctive relief where a litigant has adequate legal remedies and therefore
does not face immediate irreparable injury, and by the ‘even more vital consideration’ of
comity.”61 If the Younger doctrine applies, the court will dismiss claims for equitable relief.62
“Younger abstention is appropriate when: (1) there is an ongoing state judicial
proceeding; (2) the proceeding implicates imp ortant state interests; (3) there is an adequate
opportunity in the state proceedings to raise constitutional challenges; and (4) the requested
relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial
proceeding.”63 If these four requirements are met, a federal court will abstain from exercising
jurisdiction over the case unless there is “a showing of bad faith, harassment, or some other
extraordinary circumstance that would make abstention inappropriate.”64
The Ninth Circuit has recognized an “irreparable harm” exception to Younger abstention
that applies only “under extraordinary circumstances where the danger of irreparable loss is
both great and immediate.”65 The Ninth Circuit has applied this limited exception to a pretrial
detainee’s “colorable claim that a state prosecution [would] violate the Double Jeopardy
Clause,”66 to “a challenge to pretrial detention on the basis of a stale and scientifically invalid
probable cause determination,”67 to “a pretrial detainee’s claim that he had been incarcerated for over six months without a constitutionally adequate bail hearing,”68 and to a pretrial detainee’s challenge to the “forcible administration of antipsychotic medications.”69 However, the Ninth Circuit has explained that the irreparable harm exception does not typically apply when a pretrial detainee seeks to vindicate an affirmative constitutional defense that can be completely vindicated through “reversal of the improperly-obtained conviction.”70 Here, the first, second, and fourth elements of Younger are clearly satisfied with respect 61 Duke v. Gastelo, 64 F.4th 1088, 1095 (9th Cir. 2023) (quoting Younger, 401 U.S. at 44). 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). 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)). 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). 68 Id. (citing Arevalo, 882 F.3d at 766–67). 69 Id. at 1135. 70 Bean, 986 F.3d at 1133 (internal quotation marks omitted) (quoting Page, 932 F.3d at 904). to all federal claims for which Petitioner seeks dismissal of his state criminal charges.71
Petitioner’s criminal proceeding is still ongoing in state court. In addition, the State of Alaska
has an important interest in enforcing its laws, including prosecuting the criminal offenses with
which Petitioner has been charged.72 And dismissing Petitioner’s state case—the primary form
of relief Petitioner requests—would “enjoin [th e prosecution] altogether,” the “most offensive
and intrusive action that a federal court can take with respect to a state proceeding.”73
The Court further finds that the third element of Younger is satisfied, despite Petitioner’s
argument to the contrary. Petitioner contends that he lacks an adequate opportunity to raise
federal constitutional claims in his state criminal case because (1) he has not always been
transported for court hearings, thus depriving him of an opportunity to bring issues to the
Superior Court’s attention; (2) defense counsel has requested or acquiesced to continuances
without his consent; (3) defense counsel “has not kept [him] informed of the status of the
case”; and (4) the Superior Court will not accept his pro se filings due to his representation by
counsel, thereby preventing him from filing written objections or motions that he wishes to
litigate.74
Any decision by Petitioner’s defense counsel not to pursue certain federal constitutional affirmative defenses in his state proceeding does not render state procedures inadequate for purposes of Younger. The key question with respect to Younger’s third element is “whether there remains an opportunity to litigate the federal claim in a state-court proceeding at the time the federal court is considering whether to abstain.”75 An adequate opportunity exists so long as
71 Petitioner suggests that all of his claims provide a basis to dismiss his state charges. See Docket 10 at 2. 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 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 implicate[d] important state interests” because plaintiffs had been “charged in Oregon state courts with violating an Oregon criminal statute”). 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 interfere with [the state prosecution]”). 74 Docket 10 at 14. 75 Duke, 64 F.4th at 1096. there are no “‘procedural bars’ to raising a federal claim in the state proceedings.”76
“[O]rdinarily a pending state prosecution provides the accused a fair and sufficient opportunity
for vindication of federal constitutional rights.”77 “A federal court should assume that state
procedures will afford an adequate remedy, in the absence of unambiguous authority to the
contrary.”78
Here, Petitioner has failed to show that he is procedurally barred from raising federal
constitutional claims in his state case by anything other than a difference of opinion with his
defense counsel. That does not amount to Petitioner having “no prospect of presenting his
constitutional challenges” in his state case.79 In addition, Petitioner has no “absolute right to
both self-representation and the assistance of counsel,”80 and he cannot use his choice to be
represented by counsel to bypass ordinary state court review and have his claims heard in
federal court. The Court concurs with Respondent that any strategic disagreements that
Petitioner may have with his defense counsel over motions to bring “can (and should) be raised
in a state post-conviction relief action, and the failure to do so should not be used as an excuse
to avoid Younger abstention.”81
For similar reasons, the Court also disagrees with Petitioner’s assertion that his purported inability to “access . . . the courts” and the resulting “extreme and unacceptable delay” in his state case are extraordinary circumstances that make abstention inappropriate.82 Even when delays in bringing a case to trial could rise to a violation of Speedy Trial Clause, any such violation does not “suffice in and of itself as an independent ‘extraordinary circumstance’ 76 Commc’ns Telesys. Int’l v. Cal. Pub. Util. Comm’n, 196 F.3d 1011, 1020 (9th Cir. 1999) (citing Middlesex 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 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, 124 (1975)). 78 Meredith v. Oregon, 321 F.3d 807, 818 (9th Cir. 2003) (internal quotation marks omitted) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987)). 79 Duke, 64 F.4th at 1098. 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)). 81 Docket 13 at 28. 82 Docket 10 at 13, 15. Petitioner does not allege, and the record does not support, that his state prosecution is motivated by bad faith or a desire to harass. See Bean, 986 F.3d at 1133. necessitating pre-trial habeas consideration.”83 It is true that the Ninth Circuit has “in rare
cases declined to abstain where the state court delay was extreme and there was ‘no end in
sight’ to the state court proceedings.”84 However, even if the Court were to agree that the
four-year delay in bringing Petitioner to trial is “extreme” within the meaning of Younger,85 there
is a definite end in sight, as Petitioner’s trial is c urrently scheduled to begin the week of January
12, 2026. Although Petitioner’s trial has been rescheduled numerous times before, it appears
that the possibility of significant further delay is relatively small in light of recent measures the
Alaska courts have taken to address the backlog of unresolved criminal cases in Palmer and
throughout the state. Most notably, in May 2025, the Alaska Supreme Court issued an order
requiring trial courts in criminal cases filed before 2023 to limit additional exclusions of a
defendant’s state statutory speedy trial time to a maximum of 90 days for defense-requested
continuances, absent “a showing that extraordinary circumstances exist and that [a] delay
[beyond those 90 days] is indispensable to the interest of justice[.]”86
Furthermore, the Ninth Circuit has held that “Younger abstention is appropriate even in
cases of extreme delay where there is ‘no indication that the state court has been ineffective,’
and where the delay is instead ‘attributable to the petitioner’s quite legitimate efforts in state
83 Brown v. Ahern, 676 F.3d 899, 901 (9th Cir. 2012) (citing Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)). 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 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 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 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 that conviction is final.”). 86 Alaska Supreme Court Order No. 2083 (May 12, 2025); see also Third Judicial District Presiding 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 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 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 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, 2025). court to escape guilt’ through litigation.”87 As Respondent has demonstrated, there is no
indication that the state court has been ineffective here: a significant proportion of the delay in
Petitioner’s case has been due to defense-requested continuances, with the remainder due to
the COVID-19 pandemic and a courthouse flood.88 Even if Petitioner’s defense counsel
initially requested continuances without Pet itioner’s knowledge, that would not be an
extraordinary circumstance warranting this Court’s intervention in Petitioner’s ongoing state
prosecution.89 Petitioner has provided no evidence that his defense counsel has failed to render
effective assistance or that the defense-requested continuances have been for any reason other
than to prepare to defend Petitioner at trial. Even if Petitioner had made such a showing, the
more appropriate avenue for relief at this stage would be with the Superior Court, which could
remedy any issues by appointing new defense counsel.90
In sum, the Court concludes that the elements of Younger are met and that no exception
to the doctrine applies. The Court therefore recommends dismissing Petitioner’s claims to the
extent that Petitioner seeks to end his state prosecution by “litigat[ing] constitutional defenses
prematurely in federal court.”91
// // // 87 Page, 932 F.3d at 902–93 (quoting Edelbacher, 160 F.3d at 586). 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 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 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 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 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 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). 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 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., 410 U.S. 484, 493 (1973)). C. Petitioner Has Not Exhausted His Excessive Bail Claim in the Alaska State Courts and the Exhaustion Requirement Should Not Be Waived.
“[A] state prisoner must normally exhaust available state judicial remedies before a
federal court will entertain [their] petition for habeas corpus.”92 A petitioner’s claims are
considered exhausted only after “the state courts [have been afforded] a meaningful
opportunity to consider allegations of legal error without interference from the federal
judiciary.”93 “[S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate review
process.”94
Although 28 U.S.C. § 2241(c)(3) does not explicitly require exhaustion, federal courts
“require, as a prudential matter, that habeas petitioners exhaust available judicial . . . remedies
before seeking relief under § 2241.”95 “Where a petitioner seeks pre-conviction habeas relief,
[the] exhaustion prerequisite serves two purposes: (1) to avoid isolating state courts from
federal constitutional issues by assuring those courts an ample opportunity to consider
constitutional claims; and (2) to prevent federal interference with state adjudication, especially
state criminal trials.”96 Even though prudential exhaustion “is not a prerequisite to the exercise of jurisdiction,”97 prudential limits “are ordinarily not optional.”98 Therefore, district courts are generally “not free to address the underlying merits [of a § 2241 petition] without first determining the exhaustion requirement has been satisfied or properly waived.”99 Courts may waive the exhaustion requirement in § 2241 cases where any attempt to exhaust remedies would be futile,100 where such remedies would be “inadequate or not efficacious,” or where
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)). 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). 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 omitted). 98 Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001), overruled on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). 99 Laing, 370 F.3d at 998. 100 Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). “irreparable injury” would result.101 A petitioner bears the burden of demonstrating that at
least one of these factors applies.102
It is undisputed that Petitioner has not exhausted his state court remedies with respect
to any of the claims asserted in his Petition.103 Petitioner nevertheless suggests that the
exhaustion requirement should be excused for the same reasons he contended Younger
abstention was not appropriate: the combination of the delays and his purported inability to
litigate his claims in his state case.104 Because the only claim the Court has not yet addressed
is Petitioner’s excessive bail claim insofar as Petitioner seeks a remedy of immediate release
from pretrial detention,105 the Court limits its analysis to that claim.
Petitioner claims that his pretrial detention violates the Eighth Amendment’s
prohibition against excessive bail.106 Petitioner reasons that the bail amount set by the Superior
Court—a $75,000 cash appearance bond and a $100,000 cash performance bond—is
“essentially unattainable” due to his indigence and incarceration.107 Petitioner further suggests
that this amount is beyond what is needed to assure his appearance at trial because he has “deep
ties to the community” and no convictions for failure to appear in court.108
Respondent maintains that Petitioner has offered no valid excuse for failing to exhaust his excessive bail claim by seeking appellate review of the Superior Court’s bail decisions.109 Respondent observes that although Alaska law allows criminal defendants to file an expedited bail appeal of a trial court’s bail rulings in the Alaska Court of Appeals, Petitioner failed to appeal any of the Superior Court’s bail rulings in his state case.110 Respondent contends that
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 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 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”). 102 See Leonardo v. Crawford, 646 F.3d 1157, 1161–62 (9th Cir. 2011). 103 Docket 10 at 12–13; Docket 13 at 33. 104 Docket 10 at 12–13. 105 See id. at 16. 106 Id. at 16–17. 107 Id. 108 Id. 109 Docket 13 at 33–34. 110 Id. (citing AS 12.30.030(a); Alaska R. App. P. 207). Petitioner’s complaints about his attorney’s conduct do not justify his failure to pursue this
remedy.111 The Court agrees.
Petitioner has not shown that exhaustion of his excessive bail claim would be futile, that
an appeal would be inadequate or not efficacious, or that irreparable injury would result from
declining to waive the exhaustion requirement. To the extent that Petitioner faults his defense
counsel for not pursuing available appeals, that is not a valid basis to override the exhaustion
requirement. Similarly, to the extent that Petitioner suggests that he was unable to exhaust his
excessive bail claim because he was not present at all three of the bail hearings he has had,112
that does not excuse his failure to exercise his right to appeal any of the Superior Court’s
ensuing rulings. The record demonstrates that Petitioner, through his defense counsel, can and
has repeatedly challenged the security amount as initially set, including at the March 2022 bail
hearing at which Petitioner acknowledges he was present.113
Accordingly, the Court finds that Petitioner has failed to demonstrate any basis to waive
the prudential exhaustion requirement. The Court therefore recommends that Petitioner’s
excessive bail claim, to the extent that Petitioner seeks release from pretrial detention, be
dismissed for failure to exhaust his state court remedies. // // // // // // // // // 111 Id. at 34. 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. 113 Docket 13-3 at 30–33, 35, 37–38. Because Petitioner’s claims are not cognizable in federal habeas, subject to Younger abstention, or unexhausted, the Court recommends that they be DISMISSED without prejudice.!'* A certificate of appealability should not issue.!! DATED this 25th day of June, 2025, at Anchorage pyska, oe YO» ST & Vee ey,
Unitech StarenMrelistrate Judge District of Afaska Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge to hear and determine matters pending before the Court. For dispositive matters, a magistrate judge reports findings of fact and provides recommendations to the presiding district court □□□□□□□□ A district court judge may accept, reject, or modify, in whole or in part, the magistrate judge’s otder.!!” A party may file written objections to the magistrate judge’s order within 14 fourteen days.'!8 Objections and responses are limited to five (5) pages in length and should not merely reargue positions previously presented. Rather, objections and responses should specifically identify the findings or recommendations objected to, the basis of the objection, and any legal ' 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 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 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, 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 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)). Petitioner may request a certificate of appealability from the Ninth Circuit Court of Appeals. "6 28 U.S.C. § 636(b)(1)(B). "7 Td. § 636(b)(1)(C). gs Ty R&R re § 2241 Petition 16 Hawes v. Angol
authority in support. 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.119
119 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).