United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. Christel United States Magistrate Judge.
District Court has referred this action to United States
Magistrate Judge David W. Christel. Petitioner Barbara Ann
Clayton proceeding pro se and in forma
pauperis, filed a Petition for Writ of Habeas Corpus
(“the Petition”) pursuant to 28 U.S.C. §
2254, which challenges her 2012 conviction for second degree
murder, first degree unlawful possession of a firearm and
second degree malicious mischief. Dkt. 8. Respondent filed a
Motion to Dismiss (“Motion”), arguing the
Petition should be dismissed without prejudice because the
Petition contains solely unexhausted claims which are pending
the Washington state court. Dkt. 13. Petitioner did not file
a reply. See Dkt.
reviewed the pleadings and all supporting documents, the
Court concludes the Petition is unexhausted and recommends
granting Respondents' Motion and dismissing the Petition
raises five grounds for relief: (1) ineffective assistance of
counsel regarding failure to investigate evidence; (2)
ineffective assistance of counsel regarding a battered
women's self-defense claim; (3) due process violation
regarding the self-defense jury instruction; (4) due process
violation regarding the right her insanity plea; and (5)
ineffective assistance of counsel in presenting a defense.
Dkt. 8. Petitioner states she raised these five claims before
the Washington Supreme Court in her Personal Restraint
Petition (“PRP”) and subsequent Motion for
Discretionary Review. Dkt. 8.
may pursue federal habeas relief only after she has exhausted
his state judicial remedies. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). The exhaustion of
state court remedies is a prerequisite to the granting of a
petition for writ of habeas corpus. 28 U.S.C. §
2254(b)(1). A petitioner can satisfy the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider all claims before presenting
them to the federal court. Picard v. Connor, 404
U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985). Full and fair presentation of
claims to the state court requires “full factual
development” of the claims in that forum. Kenney v.
Tamayo-Reyes, 504 U.S. 1, 8 (1992). Petitioner admits
her Motion for Discretionary Review remains pending before
the Washington Supreme Court. Dkt. 8 at 8, 10, 13, 15.
Respondent also submits evidence of the same. Dkt.13-1,
Exhibit 1 ACORDS printout, Cause No. 93204-2. Thus, the Court
finds Petitioner cannot show she has exhausted her remedies
available in state court or the state court cannot protect
her rights. See 28 U.S.C. § 2254(b)(1). If the
Washington Supreme Court grants her Motion for Discretionary
Review, Petitioner's present federal habeas claims will
be moot. Thus, the Court recommends dismissing the Petition
without prejudice pending conclusion of the state court
petitioner seeking post-conviction relief under 28 U.S.C.
§ 2254 may appeal a district court's dismissal of
the federal habeas petition only after obtaining a
certificate of appealability (COA) from a district or circuit
judge. See 28 U.S.C. § 2253(c). “A
certificate of appealability may issue . . . only if the
[petitioner] has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
Petitioner satisfies this standard “by demonstrating
that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484
jurists would not find it debatable that the Petition should
be dismissed without prejudice. Accordingly, this Court
concludes Petitioner is not entitled to a certificate of
appealability with respect to the Petition.
undersigned recommends granting Respondent's Motion and
dismissing the Petition (Dkt. 8) without prejudice. An
evidentiary hearing is unnecessary. The Court also recommends
denying issuance of a certificate of appealability.
to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the
parties shall have fourteen (14) days from service of this
Report to file written objections. See also Fed. R.
Civ. P. 6. Failure to file objections will result in a waiver
of those objections for purposes of de novo review
by the district judge. See 28 U.S.C. §
636(b)(1)(C). Accommodating the time limit imposed by