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Appendix Appendix APPENDIX APPENDIX TABLE OF CONTENTS Memorandum in the United States Court of Appeals for the Ninth Circuit (September 2, 2020) ......................................................................................... App. 1 Memorandum Decision Dismissing Habeas Petition in the United States District Court for the District of Alaska of Texas Houston Division (May 8, 2019) ................................................................................................... App. 7 Order Denying Motion for Reconsideration of Order Dismissing Habeas Petition in the United States District Court for the District of Alaska (June 12, 2019) .............................................................................................. App. 18 Order Denying Rehearing in the United States Court of Appeals for the Ninth Circuit (October 9, 2020) ............................................................................................ App. 23 Opinion in the Supreme Court of the State of Alaska (September 22, 2017) ..................................................................................... App. 24 Opinion in the Court of Appeals for the State of Alaska (March 27, 2015) ............................................................................................ App. 78 Ninth Circuit Memorandum (May 27, 2009) ..................................................... App. 99 Order from Chambers in the United States District Court for the District of Alaska (August 7, 2008) .......................................................................... App. 103 Final Report and Recommendation Regarding Respondent’s Motion to Dismiss Amended Habeas Petition (August 4, 2008) ................................ App. 105 Opinion in the United States Court of Appeals for the Ninth Circuit, Zichko v. Idaho, No. 98-35825 (May 3, 2001) ............................................. App. 127 i Case: 19-35543, 09/02/2020, ID: 11810646, DktEntry: 30-1, Page 1 of 6 FILED NOT FOR PUBLICATION SEP 2 2020 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SEAN WRIGHT, No. 19-35543 Petitioner-Appellant, D.C. No. 3:18-cv-00056-JKS v. MEMORANDUM* STATE OF ALASKA, Respondent-Appellee. Appeal from the United States District Court for the District of Alaska James K. Singleton, District Judge, Presiding Argued and Submitted August 10, 2020 Anchorage, Alaska Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges. Concurrence by Judge MURGUIA Appellant Sean Wright seeks review of the district court’s denial of his petition for a writ of habeas corpus brought pursuant to 20 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, we reverse. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. App. 1 Case: 19-35543, 09/02/2020, ID: 11810646, DktEntry: 30-1, Page 2 of 6 Following a jury trial, Wright was convicted of thirteen counts of sexual abuse of a minor and sentenced to fourteen years’ imprisonment and ten years of supervised probation. See Wright v. State, 347 P.3d 1000, 1004-05 (Alaska Ct. App. 2015). As a result of the conviction, Wright must register as a sex offender for the remainder of his life. It is undisputed that Wright served the entirety of his sentence before relocating to Tennessee. A federal grand jury in Tennessee subsequently returned an indictment charging Wright with failure to register as a sex offender. Wright pled guilty to the charge and received a sentence of time served and five years of supervised release. Wright then filed the underlying habeas petition in the United States District Court for the District of Alaska challenging his Alaska conviction. The district court dismissed the petition with prejudice and denied the motion for reconsideration, finding that Wright was not in custody under 28 U.S.C. § 2254. We review the denial of a habeas petition de novo. See Martinez v. Cate, 903 F.3d 982, 991 (9th Cir. 2018). Under 28 U.S.C. § 2254(a), federal courts may “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution.” 2 App. 2 Case: 19-35543, 09/02/2020, ID: 11810646, DktEntry: 30-1, Page 3 of 6 To be considered “in custody” under the statute, the petitioner must suffer “present restraint from a conviction.” Maleng v. Cook, 490 U.S. 488, 492 (1989). “The Supreme Court has defined the phrase in custody to include both physical detention and other restraints on a man’s liberty, restraints not shared by the public generally. .” Veltmann-Barragan v. Holder, 717 F.3d 1086, 1088 (9th Cir. 2013) (citation and internal quotation marks omitted). A petitioner subject to probation is in custody under the statute. See Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). A petitioner incarcerated for failing to register as a sex offender is also in custody. See Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001), as amended. We clarified in Zichko that: a habeas petitioner is in custody for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction is a necessary predicate to the failure to register charge. Id. (citation and internal quotation marks omitted). Wright’s conviction and sentence for failure to register was “positively and demonstrably related to the [Alaska] conviction he attack[ed].” Id. (citation omitted). Therefore, the district court erred in ruling that Wright was not in custody. See id. 3 App. 3 Case: 19-35543, 09/02/2020, ID: 11810646, DktEntry: 30-1, Page 4 of 6 REVERSED AND REMANDED.1 1 The district court stated in the alternative that even assuming Wright “may be considered in custody,” the proper procedure would be for Wright to file a habeas petition in the federal district court in Tennessee pursuant to 28 U.S.C. § 2255. However, the district court did not provide any detailed analysis of this alternative ruling and it does not appear that the parties focused on this issue in the district court. Rather than addressing the issue as part of this appeal, we leave it to the district court to more thoroughly consider the issue on remand. 4 App. 4 Case: 19-35543, 09/02/2020, ID: 11810646, DktEntry: 30-1, Page 5 of 6 FILED Wright v. State of Alaska, No. 19-35543 SEP 2 2020 MOLLY C. DWYER, CLERK MURGUIA, Circuit Judge, concurring: U.S. COURT OF APPEALS I join my colleagues in holding that, under Zichko v. Idaho, Wright is “in custody” for purposes of 28 U.S.C. § 2254(a). 247 F.3d 1015, 1019 (9th Cir. 2001). I write separately to clarify that, in my view, the district court on remand should consider transferring Wright’s § 2254 petition to the Eastern District of Tennessee only if it determines that said district is a more convenient venue for the parties to litigate it. As I explain more fully below, I do not think it is necessary or appropriate to construe Wright’s § 2254 petition as a § 2255 petition. As our memorandum disposition points out, the district court stated that assuming Wright “may be considered currently in custody” pursuant to § 2254, “it appears that the proper procedure” would be for Wright to file a habeas petition in the Eastern District of Tennessee pursuant to § 2255. This is incorrect, in my view, because Wright is not attacking the constitutionality of his federal conviction for failing to register as a sex offender in Tennessee; he is collaterally attacking the constitutionality of his predicate Alaska conviction for sexual abuse of a minor. Because we hold today that he is in custody under § 2254 such that he may challenge his Alaska conviction, there is no need and no basis to instruct Wright to instead file a § 2255 petition in Tennessee federal court. App. 5 Case: 19-35543, 09/02/2020, ID: 11810646, DktEntry: 30-1, Page 6 of 6 It is true that both the District of Alaska and the Eastern District of Tennessee have jurisdiction over Wright’s § 2254 petition. See Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 495 (1973). Therefore, on remand, the district court could transfer Wright’s § 2254 petition against the State of Alaska to the Eastern District of Tennessee, but only if it concludes that said district is the most convenient venue for the parties—including the State of Alaska—to litigate it. See 28 U.S.C. § 1404(a); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir. 2000) (listing factors the district court should consider to determine whether transfer is appropriate). App. 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA SEAN WRIGHT, Petitioner, No. 3:18-cv-00056-JKS vs. MEMORANDUM DECISION STATE OF ALASKA, Respondent. Sean Wright, a state prisoner now represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254, dated February 27, 2018. In the Petition, Wright challenges his 2009 conviction for sexually abusing two young girls on the ground that his speedy trial rights were violated when the State of Alaska filed a felony information against him in November 1999 but did not arrest or indict him on the charges until almost five years later, and he did not proceed to trial on the charges until almost ten years later. Respondent has answered, and Wright has replied. I. BACKGROUND/PRIOR PROCEEDINGS In November 1999, Wright was charged in a felony information with sexually abusing two young girls. On direct appeal of his conviction, the Alaska Supreme Court laid out the following facts underlying the charges against Wright and the procedural background of his case: -1- Case 3:18-cv-00056-JKS DocumentApp. 327 Filed 05/08/19 Page 1 of 11 A. Facts The State began investigating Wright in February 1999 after receiving a report that Wright had sexually abused his eleven-year-old stepdaughter, K.A. K.A.
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