Cary R. Ortberg v. Russel Moody, Superintendent

I

Petitioner Cary R. Ortberg appeals the dismissal of his habeas corpus petition on the ground that it contained both exhausted and unexhausted claims. We affirm the district court’s dismissal.

Petitioner pleaded nolo contendere to second degree criminal mischief in Alaska state court. After his motion to withdraw his plea was denied, he appealed the conviction, making several arguments pro se and other arguments through counsel. The state appellate court declined to address the nonjurisdictional issues raised in Petitioner’s pro se brief because his nolo con-tendere plea waived all such defects occurring prior to the plea. Ortberg v. State, 751 P.2d 1368 , 1369 n. 1 (Alaska Ct.App. 1988). The court affirmed the trial court on the remaining issues raised in counsel’s brief. It also held, sua sponte, that the trial judge did not abuse his discretion when he denied Petitioner status as co-counsel.

Through counsel, Petitioner filed a petition for hearing with the state supreme court, arguing that the appellate court should have given him an opportunity to brief and argue the co-counsel issue. The state supreme court denied review. Despite Petitioner’s arguments to the contrary,…