United States District Court, W.D. Washington, Seattle
ORDER DECLINING SERVICE OF HABEAS PETITION AND
GRANTING LEAVE TO AMEND
A. TSUCHIDA United States Magistrate Judge.
Zachary Nelson, proceeding pro se, submitted a 28 U.S.C.
¶ 2254 habeas corpus petition on May 19, 2017. Dkt. 1.
Mr. Nelson seeks to challenge the determination by jury trial
that he is a sexually violent predator. Id. He
further challenges the length of his civil commitment and
contends he is entitled to hearing to determine whether
continued commitment is justified. Id.
trial by jury, Mr. Nelson was civilly committed as a sexually
violent predator on June 5, 2012. Dkt. 1 at 1; see also
State v. Nelson, Case No. 11-2-20771-4, located at
https://dw.courts.wa.gov (last accessed June 20,
2017). Mr. Nelson appealed on the basis that the
deputy prosecutor had committed reversible misconduct during
cross-examination and in closing arguments. State v.
Nelson, 177 Wash.App. 1035, Not Reported in P.3d (2013)
(unpublished). The Washington Court of Appeals affirmed on
November 18, 2013, and issued its mandate on January 17,
2014. Id.; see also State v. Nelson, Case No.
11-2-20771-4. It does not appear that Mr. Nelson sought
further review by the Washington Supreme Court.
careful review of the petition and the balance of the record,
the Court concludes that Mr. Nelson's petition is subject
to dismissal because it is unexhausted and untimely. However,
Mr. Nelson is granted leave to explain to the Court why his
petition should not be dismissed and to file an amended
petition that cures, if possible, the deficiencies noted
Nelson may pursue federal habeas relief only after he 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). Not only has Mr. Nelson
apparently failed to present his claims to Washington's
highest court, but the claims he presented on direct appeal
to the Court of Appeals differ significantly from the claims
presented here. Accordingly, Mr. Nelson has failed to exhaust
his state judicial remedies for purposes of this habeas
it appears Mr. Nelson's habeas claims are procedurally
defaulted in the State of Washington, and if he attempts to
present them in a state court challenge at this time, the
claims would be denied. Under RCW 7.36.130, “[n]o court
or judge shall inquire into the legality of any judgment or
process whereby the party is in custody, or discharge the
party when the term of commitment has not expired, ”
unless a habeas petition is filed within the time allowed by
RCW 10.73.090. In turn, RCW 10.73.090 precludes the filing of
a petition or motion for collateral attack more than one year
after the judgment becomes final. A judgment becomes
“final” under the statute on either the date an
appellate court issues its mandate disposing of a timely
direct appeal, or the date the United States Supreme Court
denies a timely petition for certiorari to review a decision
affirming the underlying judgment; whichever is later. RCW
10.73.090(3)(b), (c). Here, the Washington Court of Appeals
affirmed the lower court's decision on November 18, 2013
and issued its mandate on January 17, 2014, and there is no
indication that further review was sought. Mr. Nelson had 30
days from the date the Appeals Court's decision was filed
to seek review. RAP 13.4. That date has long passed.
petitioner who procedurally defaults may receive review of
the defaulted claims only if he demonstrates
“cause” for his procedural default and
“actual prejudice” stemming from the alleged
errors. Coleman v. Thompson, 501 U.S. at 750. The
petitioner must show an objective factor actually caused the
failure to properly exhaust a claim. Interference by state
officials, the unavailability of the legal or factual basis
for a claim, or constitutionally ineffective assistance of
counsel may constitute cause. Murray v. Carrier, 477
U.S. 478, 488 (1986). A petitioner's own inadequacies are
not sufficient cause to excuse a procedural default.
Hughes v. Idaho State Bd. of Corrections, 800 F.2d
905, 907-09 (9th Cir. 1986); Thomas v. Lewis, 945
F.2d 1119 (9th Cir. 1991). In short, Mr. Nelson must
demonstrate cause (such as an objective external factor
outside his control that excused his procedural default)
and prejudice (an error of constitutional
proportions that infected his whole trial). If he cannot do
so, his federal claims are not cognizable in this Court and
must be dismissed.
the deficiencies described above, the Court declines to serve
the petition or to direct that an answer be filed. Mr. Nelson
may file an amended petition to cure, if possible, the
deficiencies noted above. The amended petition should be
filed on the forms provided by the Clerk. Mr. Nelson must
correct the noted deficiencies by July 21, 2017 or his
petition will be subject to dismissal with prejudice.
Clerk is directed to send copies of this Order and of the
Court's standard § 2254 forms to petitioner.
 The Court takes judicial notice of
King County Superior Court case State v. Nelson,
Case No. 11-2-20771-4, located at
http://dw.courts.wa.gov (last accessed June 20, 2017),
and the Washington Court of Appeals decision State v.
Nelson, 177 Wash.App. 1035, Not Reported in P.3d (2013)
(unpublished); see also Burbank-Glendale-Pasadena Airport
Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir.
1998) (court may take judicial notice of court filings and