United States District Court, W.D. Washington, Tacoma
ORDER TO FILE SUPPLEMENTAL ANSWER
Richard Creatura United States Magistrate Judge.
District Court has referred this petition for a writ of
habeas corpus to United States Magistrate Judge, J. Richard
Creatura. The authority for the referral is 28 U.S.C. §
636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3
and MJR4. Petitioner John Michael Bale, proceeding pro
se and in forma pauperis, filed this petition
pursuant to 42 U.S.C. § 2254.
claims 23 grounds for relief. However, he did not raise all
of them at all levels of state court review before presenting
them in his habeas petition filed with this court. Because
petitioner appears to have exhausted the state remedies for
some, but not all, of his claims, his federal habeas petition
is a “mixed petition.” Further, his unexhausted
claims are also procedurally defaulted, so the remedies
normally associated with mixed petitions are inappropriate.
This Court, therefore, declines to dismiss the petition, as
respondent requests, and instead will continue to the merits.
unpublished opinion, the Washington Court of Appeals
summarized the facts giving rise to this petition. Dkt. 17,
Ex. 3. In 2012, two officers approached petitioner while he
was with two colleagues in a trailer park. Id. at
1-2. The officers requested his identification, but
petitioner said he was unable to find it. Id. at 2.
Noticing petitioner's “nervous” demeanor, the
officers attempted to put petitioner in handcuffs.
Id. However, as one officer grabbed petitioner's
wrist, petitioner broke free and ran. Id. The
officers pursued and tackled him, then noticed that
petitioner was holding a gun. Id. The gun was fully
cocked. Id. As petitioner attempted to point the gun
at one of the officers, the officer wrestled it away.
Id. Petitioner then escaped the officers' grip
and continued to flee. Id. The officers again took
chase and eventually subdued him using a stun gun.
Id. at 2-3. The State charged petitioner with two
counts of first degree assault and one count of possessing a
stolen firearm. Id. at 3. A jury found him guilty on
all counts. Id.
appealed his judgment to the Division II Court of Appeals.
Dkt. 17, Exs. 4, 5. The court of appeals upheld his
first-degree assault convictions, but reversed his stolen
firearm conviction. Id., Ex. 3. He petitioned the
Washington Supreme Court for review, which denied his request
for review. Id., Exs. 7, 8. He ultimately was
sentenced to a term of 490 months imprisonment. Dkt. 1.
then filed a personal restraint petition containing 17
grounds for relief. Id., Ex. 10. The Washington
Court of Appeals denied his petition. Id., Ex. 15.
Petitioner did not appeal this decision to the Washington
Supreme Court, and the Court of Appeals decision became final
on April 20, 2017. Id., ex. 16.
now asks this Court to grant him relief through a petition
for habeas corpus. Dkt. 4, 4-1.
Exhaustion of State Remedies and Procedural Default
state prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition
for habeas corpus.” Picard v. Connor, 404 U.S.
270, 275 (1971). A petitioner's claims are only exhausted
after “the state courts [have been given] a meaningful
opportunity to consider allegations of legal error without
interference from the federal judiciary.” Vasquez
v. Hillery, 474 U.S. 254, 257 (1986). “State
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). A petition containing both exhausted and unexhausted
claims is a “mixed petition.” Rose v.
Lundy, 455 U.S. 509, 522 (1982). Just as federal courts
will not entertain an unexhausted claim, federal courts will
not hear a mixed petition.
has properly exhausted the five claims that he brought on
direct appeal, which the Court will reference by their claim
number as presented in the petition filed with this Court.
Petitioner's 9th ground asserts that the State failed to
prove petitioner intended to cause any bodily harm to the
officers because he never aimed his gun at them. Dkt. 4-1 at
28-29. Ground 13 asserts that the appellate court erred when
it failed to conclude that the jury was improperly prejudiced
when it knew petitioner had a gun, despite reversing
petitioner's firearms conviction. Id. at 33-35.
Ground 15 claims that the State failed to prove that
petitioner actually physically assaulted the officers.
Id. at 37-38. Ground 17 asserts that
petitioner's appellate counsel was ineffective because
she did not file a Motion for Reconsideration with the court
of appeals. Id. at 40-41. Like petitioner's 9th
ground, ground 21 also asserts that the State failed to prove
that he intended to cause the officers any bodily harm.
Id. at 47-49. Petitioner brought all five of these
claims at each level of review. Dkt. 17, Exs. 3, 4, 5, 7.
Though the state supreme court denied review, it nonetheless
had the opportunity to consider these allegations of legal
error without interference from the federal judiciary.
Because of this, petitioner properly exhausted grounds 9, 13,
15, 17, and 21, and this Court may review them on their
addition, the state court of appeals has already granted
relief for one of petitioner's claims. Ground 16 alleges
that petitioner's trial counsel was ineffective for
failing to hold the State to its burden of proof on the
possession of a stolen firearm charge. Dkt. 4-1 at 39-40. The
court of appeals dismissed the firearms charge for
insufficient evidence during direct appeal. Dkt. 17, ex. 3 at
7-8. Because this charge was dismissed, ...