Petition for Writ of Certiorari — Tidiane Kone, Petitioner v. James Milburn, Superintendent, Spring Creek Correctional Center

Case: 23-35147, 04/26/2023, ID: 12703252, DktEntry: 5, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

APR 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

TIDIANE KONE,

Petitioner-Appellant,

v.

JAMES MILBURN, Superintendent, Spring

Creek Correctional Center,

No.

23-35147

D.C. No. 3:22-cv-00233-SLG

District of Alaska,

Anchorage

ORDER

Respondent-Appellee.

Before: PAEZ, WATFORD, and FORREST, Circuit Judges.

A review of the record and appellant’s response to the March 9, 2023 order

to show cause demonstrates that this court lacks jurisdiction over this appeal.

Appellant’s February 22, 2023 motion for appeal does not identify any final or

appealable orders. See 28 U.S.C. § 1291. Consequently, this appeal is dismissed

for lack of jurisdiction.

DISMISSED.

at/MOATT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

TIDIANE KONE,

Petitioner,

v.

Case No. 3:22-cv-00233-SLG

JAMES MILBURN,

Superintendent, Spring Creek

Correctional Center, 1

Respondent.

ORDER OF DISMISSAL

On October 25, 2022, Tidiane Kone, a self-represented prisoner, filed a

“Notice to the Court for Removal,” which included a Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”).2 Mr.

Kone also filed a civil cover sheet, a Prisoner’s Application to Waive Prepayment

of the Filing Fee, a Financial Affidavit, an Application for Appointment of Counsel

and a Declaration.3 Then, on January 18, 2023, Mr. Kone filed a “Motion for

Transfer Notice” asking for a transfer of his place of confinement from Seward,

1 The Court notes that Mr. Kone’s Petition incorrectly named the State of Alaska as respondent.

Docket 1. Mr. Kone subsequently corrected the respondent’s name to “the warden of Spring

Creek Correctional Center.” Docket 8. The Court notes that the current Superintendent of

Spring Creek Correctional Center is James Milburn. See

https://doc.alaska.gov/institutions/sprinq-creek. See also Rule 2(a), Rules Governing Section

2254 Proceedings for the United States District Courts; Belgarde v. Montana, 123 F.3d 1210,

1212 (9th Cir. 1997).

2 Docket 1, 1-1.

3 Dockets 2-5.

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Alaska to Anchorage, Alaska.4 On February 7, 2023, Mr. Kone filed a “Motion for

Reconsideration of Notice for Removal” asking the Court to remove his state case

to federal court before his state remedies are exhausted.5 On February 14, 2023,

Mr. Kone filed a Notice to the Court to correct the name of the respondent in this

case to “the warden of Spring Creek Correction Center.”6

The Court takes judicial notice7 of Mr. Kone’s underlying criminal conviction

in State of Alaska v. Kone, Tidiane, Case No. 3AN-12-08971CR and his post­

conviction proceeding, In the Matter of Kone, Tidiane v. State of Alaska, Case No.

3AN-18-04627CI. The Court also takes judicial notice of the previous Section 2254

cases Mr. Kone has filed with this Court regarding the same underlying state

criminal case.8

4 Docket 6.

5 Docket 7.

6 Docket 8. The Court corrected the case caption based on Mr. Kone’s Notice at Docket 8. See

n. 1.

7 Judicial notice is the “court’s acceptance, for purposes of convenience and without requiring a

party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact.”

Black’s Law Dictionary (11th ed. 2019); see also Headwaters Inc. v. U.S. Forest Service, 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); see also Fed. R.

Evid. 201.

8 See Kone v. Williams, 3:19-cv-00230-JKS; Kone v. Hernandez, 3:20-cv-00313-JKS.

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SCREENING REQUIREMENT

A court must “promptly examine” a habeas petition.9 “If it plainly appears

from the petition and any attached exhibits that the petitioner is not entitled to relief

in the district court, the judge must dismiss the petition. ”10 Upon screening, it

plainly appears that Mr. Kone is not entitled to habeas relief pursuant to Section

2254 and his petition must be dismissed.

DISCUSSION

A prisoner may file a subsequent habeas petition when the previous

petitions were dismissed without prejudice for failure to exhaust state remedies.11

This is the third Section 2254 petition Mr. Kone has filed based on the same

underlying criminal case.12 The first Section 2254 action was voluntarily dismissed

by Mr. Kone on October 9, 2019, after the Court dismissed the petition with leave

to amend because Mr. Kone had failed to exhaust his remedies in the state

courts.13 Mr. Kone’s second Section 2254 action was dismissed without prejudice

9 Rule 4, Rules Governing Section 2254 Proceedings for the United States District Courts.

10 Rule 4, Rules Governing Section 2254 Proceedings for the United States District Courts.

11 28 U.S.C. § 2244(b); see also In re Turner, 101 F.3d 1323 (9th Cir. 1996), as amended Jan.

21, 1997.

12 See n. 8 supra.

13 See Kone v. Williams, 3:19-cv-00230-JKS, Dockets 1, 3, 4, 8 (challenging his 2014 judgment

of conviction as unconstitutional; voluntary dismissal of claims after leave to amend to exhaust

state remedies).

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by the Court on January 25, 2021, after the Court allowed Mr. Kone an opportunity

to address his failure to first raise his federal claims in the state courts or

demonstrate why this Court should nonetheless consider his claims. The Court

found that Mr. Kone failed to allege any facts that would support colorable

arguments of cause and prejudice or actual innocence and cautioned Mr. Kone

that “he should not return to this Court until he has fully exhausted any claims he

wishes to raise in this Court by presenting them first to the Alaska state courts. ”14

Petitions filed under 28 U.S.C. § 2254 must meet strict procedural

requirements. A prisoner that is in custody based on a state court conviction

cannot maintain a Section 2254 action until he has first exhausted his state court

remedies.15 Exhaustion of state remedies requires a petitioner to fairly present

each federal claim to the state courts in order to give the state the opportunity to

pass upon and correct any alleged violations of its prisoners' federal rights.16 To

satisfy the “fairly present” requirement, a petitioner must present each federal claim

to “each appropriate court (including a state supreme court with powers of

discretionary review)” so that each court is alerted to the federal nature of the

claim.17

14 Kone v. Hernandez, 3:20-cv-00313-JKS, Docket 12.

15 28 U.S.C. § 2254(b)(1).

16 Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curium).

17 Baldwin v. Reese, 541 U.S. 27, 29 (2004) (relying on Duncan, 513 U.S. at 365-66.).

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In Alaska, this means that each federal claim must first be presented to the

Alaska Superior Court. If the petitioner disagrees with that result, the claim must

then be raised to the Alaska Court of Appeals, and if he disagrees with that result,

the claim must be then raised in a petition for hearing to the Alaska Supreme

Court.18 This same process also applies to post-conviction proceedings by the

Alaska Superior Court and review of any post-conviction decision by the Alaska

Court of Appeals and the Alaska Supreme Court.19

In this most recent Petition, Mr. Kone acknowledges that his claims have not

been fully exhausted in the state courts. The Superior Court issued a decision

dismissing Mr. Kone’s amended application for post-conviction on October 4,

2022.20 Mr. Kone did not appeal that order to the higher state courts; he states

he did not appeal because of a “denial for pro se” and “blocking using federal

question from trial court.”21 However, a review of the state court records shows

that Mr. Kone was represented by counsel in that case. The state trial court’s

October 4, 2022 dismissal order appears to have been mailed to Mr. Kone’s

18 See O’Sullivan v. Boerkel, 526 U.S. 828, 845. In Alaska, a criminal defendant may request

discretionary review by the Alaska Supreme Court. See Alaska Statutes §§ 22.05.010,

22.07.020, and 22.07.030; Alaska Rules of Appellate Procedure 215, 301, and 302.

19 See 28 U.S.C. § 2254(c); see also O’Sullivan, 526 U.S. at 844-45. See generally Alaska R.

Crim. P. 35.1.

20 Docket 1 -2.

21 Docket 1-1 at 5-7, 9, 11.

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attorney of record (Megan Rowe).22 As explained in previous orders, this Court

cannot consider Mr. Kone’s federal claims until he has first presented them not

only to the Alaska Superior Court, but also to the Alaska Court of Appeals and to

the Alaska Supreme Court.23 Consequently, it plainly appears that Mr. Kone’s

Petition is not eligible for federal habeas review.

OTHER MOTIONS

At Docket 6, Mr. Kone filed a “Motion to Transfer Notice.” He requests a

transfer from Spring Creek Correctional Center to Anchorage to be closer to the

Court. Such a motion is outside the scope of habeas relief available in federal

court. Accordingly, the motion at Docket 6 must be DENIED. At Docket 7, Mr.

Kone filed a “Motion for Reconsideration of Notice of Removal” essentially seeking

to remove his state post-conviction proceeding to this Court. However, because

Mr. Kone is not the defendant in that state post-conviction case, he cannot avail

himself of removal to this Court.24 And in any event, the trial court proceeding has

concluded and the action is therefore not removable at this time. As explained

above, Mr. Kone may have an opportunity to litigate his claims in federal court, but

only after full state court exhaustion. Accordingly, the motion at Docket 7 is also

DENIED.

22 Docket 1- at 1-8.

23 See Kone v. Williams, 3:19-cv-00230-JKS, Dockets 8, 9; Kone v. Hernandez, 3:20-cv-00313JKS, Docket 12.

24 See 28 U.S.C. § 1441(a).

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IT IS THEREFORE ORDERED:

1. The Petition Under 28 U.S.C. § 2254 is DISMISSED WITHOUT

PREJUDICE, due to Mr. Kone’s failure to exhaust his state court remedies.

2. The motions at Docket 6 and Docket 7 are DENIED.

3. All other pending motions are DENIED AS MOOT.

4. A Certificate of Appealability shall not issue.25

5. The Clerk of Court is directed to enter a Final Judgment and terminate this

action.

DATED this 21st day of February, 2023, at Anchorage, Alaska.

/s/ Sharon L. Gleason

UNITED STATES DISTRICT JUDGE

25 28 U.S.C. §§ 2255(d), 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(certificate of appealability may be granted only if applicant made a “substantial showing of the

denial of a constitutional right,” i.e., a 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)).

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Case: 23-35147, 05/18/2023, ID: 12718225, DktEntry: 7, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

TIDIANE KONE,

No. 23-35147

Petitioner - Appellant,

v.

JAMES MILBURN, Superintendent,

Spring Creek Correctional Center,

D.C. No. 3:22-cv-00233-SLG

U.S. District Court for Alaska,

Anchorage

MANDATE

Respondent - Appellee.

The judgment of this Court, entered April 26, 2023, takes effect this date.

This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

0011

it'll.

Additional material

from this filing is

available in the

Clerk's Office.