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Bale v. Holbrook

United States District Court, W.D. Washington, Tacoma

August 4, 2017



          J. Richard Creatura United States Magistrate Judge.

         The 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.

         Petitioner 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.


         In an unpublished opinion, the Washington Court of Appeals summarized the facts giving rise to this petition.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.

         Petitioner 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.

         Petitioner 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.

         Petitioner now asks this Court to grant him relief through a petition for habeas corpus. Dkt. 4, 4-1.


         I. Exhaustion of State Remedies and Procedural Default

         “[A] 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.

         A. Exhausted Claims

         Petitioner 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 merits.

         In 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, ...

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