United States District Court, W.D. Washington, Tacoma
ORDER DENYING PETITIONER'S MOTION TO RECONSIDER
THE COURT'S ORDER
Richard Creatura, United States Magistrate Judge
District Court referred this petition for a writ of habeas
corpus to United States Magistrate Judge J. Richard Creatura
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local
Magistrate Judge Rules MJR3 and MJR4.
this Court ordered respondent to file a supplemental answer
and recommended that several of petitioner's claims be
dismissed for failure to exhaust, petitioner filed this
objection to the order. Dkt. 24. He objects to the
Court's recommended dismissal and requests that the
claims be considered on the merits even though the Court
previously found them to be unexhausted. Though filed as an
objection, the Court interprets this as a motion for
reconsideration. However, because the Court does not find
that it committed manifest error and there are no new facts
or legal authority that were not already presented when the
Court made its previous ruling, the Court denies the motion.
requests that the Court reconsider its previous ruling and
analyze his ineffective assistance of counsel claim, as well
as several other claims, on the merits. Though he styles it
as an objection, in light of the request to reevaluate the
Court's previous decision, the Court treats this filing
as a motion for reconsideration. Motions for reconsideration
are disfavored under the Local Rules. See Local Rule
7(h). "The Court will ordinarily deny such motions in
the absence of a showing of manifest error in the prior
ruling or a showing of new facts or legal authority which
could not have been brought to its attention earlier with
reasonable diligence." Id.
first asks that the Court consider on the merits his
ineffective assistance of counsel claim related to his lack
of access to the jail law library. Dkt. 24 at 1-2. It is
unclear which ineffective assistance claim petitioner is
referencing; he raised ineffective assistance of trial
counsel in grounds 6, 16, and 20 of his habeas petition, and
raised his lack of access to the law library in ground 2.
Dkt. 4-1 at 2-5, 11-12, 17-25, 39-40, 45-46. However, the
Court recommended dismissal of all of these claims as
unexhausted and procedurally defaulted in its previous order.
Dkt. 22, 5-7. Petitioner has not presented new facts or legal
authority that could not have been brought to the Court's
attention earlier indicating this ruling was improper. Local
there is no indication that the Court committed manifest
error. The Court found that, though petitioner included the
above noted grounds in his personal restraint petition, he
neglected to present to them at all levels of the state
courts. Dkt. 22 at 5. Because of this, the Court determined
that it could not review them. Further, it found that the
grounds were procedurally defaulted because they could no
longer be reviewed by state courts, and therefore recommended
dismissal. Id. at 5-7. Petitioner urges that his
claims have merit and that the Court should consider them.
However, regardless of merit, the Court cannot consider
claims in a habeas petition unless they have already been
exhausted in state court. Picard v. Connot, 404 U.S.
270, 275 (1971). Because it appears the Court correctly found
that petitioner's above noted grounds were unexhausted,
the Court denies petitioner's motion for reconsideration
on this ground.
also asks the Court to reconsider its recommended dismissal
of the other claims the Court found to be unexhausted. Dkt.
24 at 3. He argues that the Court incorrectly found these
unexhausted because he included them in his statement of
additional grounds ("SAG") in the Washington Court
of Appeals, and the Washington Supreme Court are tasked with
reviewing "the whole case as a whole not just in
part." Id. As the Court noted in its previous
order, "a state prisoner must normally exhaust available
state judicial remedies before a federal court will entertain
his petition for habeas corpus." Picard, 404
U.S. at 275. Further, "[t]o exhaust state remedies,
petitioner must present each of his claims to the state's
highest court. In turn, the state's highest court must
have disposed of each claim on the merits." James v.
Borg, 24 F.3d 20, 24 (9th Cir. 1994) (citing Car
others v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979)).
Though petitioner claims he raised all his current habeas
grounds in his SAG, he presented only four grounds to the
Washington Supreme Court for Review. Dkt. 17, Ex. 7 at 1. As
noted in the Court's previous order, those grounds are
reflected in five of the grounds presented in
petitioner's habeas petition. However, he did not present
his remaining 17 grounds to the Washington Supreme Court.
Because petitioner relies on arguments provided to the Court
of Appeals, but not identified when he appealed its decision,
it cannot be fairly said that he presented each of his claims
to the state's highest court. Borg, 24 F.3d at
24. Therefore, the Court did not commit manifest error when
it found that petitioner had not exhausted those claims. The
Court denies petitioner's motion for reconsideration
fails to show manifest error in the prior ruling or present
new facts or legal authority for his position that could not
have been brought to the Court's attention earlier with
reasonable diligence. Regardless of the merits of
petitioner's ineffective assistance of counsel claim, the
Court did not commit manifest error when it determined it was
exhausted. Similarly, because petitioner did not present his
17 identified claims to Washington's highest court, this
Court did not commit manifest error when it ...