Ostrosky v. State of Alaska

• Decision Date: 28 August 1990
• Docket Number: No. 89-35173,89-35173
• Citation: 913 F.2d 590
• Parties: Harold C. OSTROSKY, Petitioner-Appellee, v. STATE OF ALASKA; Roger V. Endell, Commissioner of Corrections, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 590

913 F.2d 590

Harold C. OSTROSKY, Petitioner-Appellee, v. STATE OF ALASKA; Roger V. Endell, Commissioner of

Corrections, Respondents-Appellants.

No. 89-35173.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1989.

Decided Aug. 28, 1990.

Sidney K. Billingslea, Asst. Federal Public Defender, Anchorage, Alaska, for petitioner-appellee.

Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, Alaska, for respondents-appellants.

Appeal from the United States District Court for the District of Alaska.

Before BROWNING, SCHROEDER and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

The State of Alaska and Roger V. Endell, Commissioner of Corrections, appeal the district court's grant of Harold Ostrosky's writ of habeas corpus. The district court held that the State of Alaska denied Ostrosky his right to due process under the fourteenth amendment because he had a right to rely on a prior Alaska superior court decision declaring the statute under which he was convicted unconstitutional, although the decision was pending on appeal before the Alaska Supreme Court. The district court did not rule on Ostrosky's other contention, that he has a right to have his reasonable mistake of law defense tried to a jury rather than a judge. On the first claim, we must address whether agreeing with Ostrosky would establish or grant Ostrosky the benefit of a new rule, impermissible in a habeas corpus action. We find that, although affirming on the due process claim would establish a new rule, it falls within an exception to the new rule prohibition. Upon reaching the merits, however, we reverse. The right to a jury trial may fall within the same exception. However, we hold that the writ should not be granted on the jury claim because Ostrosky explicitly waived his right to a jury.

FACTS

The Alaska legislature enacted the Limited Entry Act ("Act") in 1973 to promote conservation and responsible management of Alaska's fishery resources. The Act and accompanying regulations limit the number of commercial fishers by permitting the Commercial Fisheries Entry Commission to issue a limited number of entry permits for each fishery. It further provides that no one may be the primary operator of commercial fishing gear or possess fish taken for a commercial purpose without an appropriate permit. Violation of the Act is a crime. Alaska Stat. Sec. 16.43.970(a) (1987); Alaska Admin. Code tit. 20, Secs. 05.100(a) Harold Ostrosky vigorously opposed the permit system. From the beginning, he fished openly without a permit, inviting arrest so that he could challenge the Act's constitutionality. He was convicted in 1978 in a state of Alaska district court on twelve counts of violating the Act. He appealed to the superior court, alleging that the Act was unconstitutional. On January 7, 1981, Superior Court Judge Moody upheld the Act's constitutionality and affirmed Ostrosky's 1978 convictions.

.110(a) (Oct.1988). ¹

While those proceedings were pending in 1979, Ostrosky was convicted again for fishing without a permit. His daughters, who also were convicted, petitioned for post-conviction relief in 1981. On August 14, 1981, Superior Court Judge Carlson filed a memorandum decision declaring the Act unconstitutional and vacating the daughters' convictions. Subsequently, Ostrosky was permitted to join in his daughters' petition. On August 25, 1981, Judge Carlson set aside Ostrosky's 1979 conviction based on the reasons set forth in the memorandum decision.

While the state's appeal of Judge Carlson's decision was pending, Ostrosky again went fishing without a permit. On July 3, 1983, a Fish and Wildlife Protection Officer boarded his boat while Ostrosky had commercial fishing gear in the water. Ostrosky told the officer he did not have a permit, but the officer did not cite Ostrosky at that time.

On July 7, the state applied to the Alaska Supreme Court for an emergency stay of Judge Carlson's ruling. ² The application stated, "A stay of the Memorandum Decision is necessary to accord the Division of Fish and Wildlife Protection the necessary authority to arrest Mr. Ostrosky for violation of [the Act]." A single justice granted the stay on July 8, stating that "[t]he intent of this order is to permit the continued enforcement of the Limited Entry Act pending this court's decision on the merits." The same day, the wildlife officer issued Ostrosky two citations, one for fishing without a permit on July 3, and one for possession of salmon without a permit on July 8. ³ On July 19, the Alaska Supreme Court reversed Judge Carlson's ruling and held that the Act was constitutional. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983) [hereinafter Ostrosky I ].

Trial and First Appeal on the 1983 Charges

At his trial before Judge Carlson in November 1983 for the July 1983 charges, Ostrosky first moved to dismiss the illegal fishing charge on the ground that the Limited Entry Act did not apply to him because he had been a party in a post-conviction proceeding in which Judge Carlson had declared the Act unconstitutional. Upon this motion's denial, Ostrosky asked the judge for an advance ruling on whether he could present evidence and get a jury instruction on the defense of reasonable reliance on the ruling holding the Act unconstitutional and vacating his prior sentence. The judge ruled that the defense was unavailable to Ostrosky because he had assumed the risk that the Alaska Supreme Court would reverse. Ostrosky then waived his right to a jury trial, preserving his right to appeal Judge Carlson's rulings on his motion to Ostrosky appealed, arguing that to prosecute him violated his due process rights and that the trial court should have permitted him to argue the defense of reasonable reliance on a mistake of law. The Alaska Court of Appeals recognized a limited defense of reasonable mistake of law for fish and game offenses, ⁶ which the defendant must prove to the trial court by a preponderance of the evidence. Ostrosky v. State, 704 P.2d 786, 791-92 (Alaska Ct.App.1985) [hereinafter Ostrosky II ]. The court remanded for an evidentiary hearing, directing the trial judge to consider Ostrosky's status as a party to another proceeding in which the Act was held unconstitutional along with other facts but noting that this status did not, per se, compel dismissal of the charges. Id. at 792-93 & n. 4 ("We have not found any authority which indicates that Judge Carlson's decision would be binding on the parties until the decision was stayed or overturned but would not necessarily be binding on anyone else.").

                dismiss and on the availability of the mistake of law defense. 4   After a bench trial, Judge Carlson found Ostrosky guilty. 5
                

The Alaska Supreme Court denied Ostrosky's petition for certiorari.

Remand and Second Appeal of 1983 Charges

On remand, the superior court found that Ostrosky had not reasonably relied on the prior lower court decision to shield his current activities from prosecution. It found that Ostrosky's lawyer had advised Ostrosky that he was risking further prosecution by fishing before Judge Carlson's ruling was upheld on appeal and that he had not told Ostrosky that he could fish with impunity. ⁷

Ostrosky appealed again. The Court of Appeals affirmed the trial court's finding that the trial court was not clearly erroneous in finding that Ostrosky had not proved reasonable reliance on a mistake of law by a preponderance of the evidence. Ostrosky III, 725 P.2d at 1090. ⁸

Federal Court Proceedings

The federal district court addressed two claimed grounds for relief in Ostrosky's 1986 petition for habeas corpus: that the state court denied Ostrosky due process by prosecuting him after he had successfully challenged the constitutionality of the Limited Entry Act in superior court, and that the state denied him the right to a jury determination of the defense of reasonable mistake of law. ⁹ The magistrate recommended granting the petition on the second ground. The district court did not decide the jury issue, however, and instead concluded that the state charges should be dismissed because the prosecution violated due process. Ostrosky v. Alaska, No. A86-660 Civ. (D. Alaska Feb. 16, 1989).

JURISDICTION

We have jurisdiction of the appeal from the district court's order on the habeas corpus petition under 28 U.S.C. Sec. 2253.

STANDARD OF REVIEW

We review the district court's decision to grant a petition for writ of habeas corpus de novo. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988).

DISCUSSION

I. DUE PROCESS CLAIM

A. New Rule Inquiry

The Supreme Court has recently restricted federal courts' ability to apply new rules in ruling on petitions for habeas corpus. A case announces a new rule, in general, when it "breaks new ground or imposes a new obligation on the States or the Federal Government," or alternatively, "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989) (plurality opinion); see also Butler v. McKellar, --- U.S. ----, 110 S.Ct. 1212, 1216, 108 L.Ed.2d 347 (1990). We cannot apply a new rule "retroactively to defendants on collateral review unless it falls within one of two exceptions." Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989). We can apply a new rule if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" or "prohibit[s] a certain category of punishment for a class of defendants because of their status or offense." Id. at 2952-53 (internal quotations and citations omitted). Under the second exception, we can apply a new rule "if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty" "without which the...