Harold C. Ostrosky v. State of Alaska Roger v. Endell, Commissioner of Corrections

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 Ostro-sky 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 Ostro-sky’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…