United States District Court, W.D. Washington, Seattle
A. TSUCHIDA United States Magistrate Judge
ORDER GRANTING MOTION TO STAY AND ENJOINING SNOHOMISH
SUPERIOR COURT IN No. 14-1-01917-8
J. Pechman United States District Judge
Said Farzad, who was found guilty by a state court jury but
has not yet been sentenced, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Mr. Farzad alleges that
subjecting him to a second trial and any further proceedings,
including sentencing, violates the Double Jeopardy Clause.
Dkt. 5. At Mr. Farzad's request and over the State's
objections, the state trial court continued Mr. Farzad's
sentencing until March 20, 2018 pending resolution of the
instant petition. See Dkt. 21-1.
oppose the habeas petition on the merits and on the grounds
that Mr. Farzad is not in custody; some of the respondents
are not proper parties; and for failure to exhaust state
judicial remedies. Dkt. 12 and Dkt. 14. In response to the
failure to exhaust argument, Mr. Farzad immediately filed a
motion to dismiss on double jeopardy grounds in the state
court and a motion to stay in this Court. In the alternative
to a stay, Mr. Farzad seeks an order enjoining the Snohomish
County Superior Court from proceeding to sentencing either
while he exhausts state judicial remedies or if sentencing
will otherwise occur before the Court has ruled on his
petition. Dkt. 19. Mr. Farzad sought to have his state court
motion to dismiss heard prior to sentencing so that if
necessary, he can seek state appellate relief prior to
sentencing. However, the State has convinced the state court
not to hear the motion until the day of sentencing. Dkt.
24-2, Declaration of Paul W. Thompson. In light of Washington
Supreme Court precedent, which is directly contrary to
federal law, it is unlikely that Mr. Farzad's motion will
motion to stay shall be granted and the Snohomish County
Superior Court shall be enjoined from proceeding to
sentencing pending an ultimate ruling on Mr. Farzad's
federal habeas petition.
OF THE CASE
September 2014, the State of Washington charged Mr. Farzad
with one count of felony telephone harassment. The State
later amended the complaint to include one count of threats
to bomb property. As to Count I, the trial court instructed
the jury on felony telephone harassment and lesser included
offense of misdemeanor telephone harassment. At trial, the
jury was unable to reach a verdict on felony harassment but
found Mr. Farzad guilty of misdemeanor harassment. The jury
deadlocked on the bomb threat charge, and a mistrial was
declared on Count II. On appeal, the Washington Court of
Appeals reversed the misdemeanor harassment conviction
because the jury was given an erroneous to-convict
instruction. State v. Farzad, 198 Wn.App. 1018, 2017
WL 1055729 (Mar. 20, 2017).
remand, the State retried Mr. Farzad on the felony telephone
harassment and threats to bomb charges. On October 5, 2017,
the jury found Mr. Farzad guilty of felony telephone
harassment and not guilty of threats to bomb. His sentencing
was scheduled for December 12, 2017. Before his sentencing,
Mr. Farzad filed his § 2241 petition herein on December
1, 2017. Dkt. 5. He claims that the second trial, verdict,
and pending re-sentencing violate the Double Jeopardy Clause
of the Fifth Amendment and he asks this Court to prohibit the
state from proceeding with sentencing. Id. at 6.
the state trial court on December 4, 2017, Mr. Farzad filed a
motion to continue his sentencing pending his federal habeas
corpus petition. The State opposed the motion, arguing that
the trial court was required to sentence Mr. Farzad under
Washington law and that his federal habeas petition would not
be ripe until he was sentenced. The State also stated it was
unlikely that Mr. Farzad would receive a term of
incarceration. Dkt. 21-1 at 3. After the trial court
continued Mr. Farzad's sentencing until March 20, 2018,
the State sought interlocutory review of that order and filed
a motion for immediate sentencing. The Washington Court of
Appeals denied both requests. Id. at 7.
prosecutor advised the trial court that he does not intend to
ask for a term of incarceration. Dkt. 20 (citing Ex. 16 at 10
(state court record)). Mr. Farzad then filed his motion to
dismiss on double jeopardy grounds. Id. (citing Ex.
22 (state court record)). The motion will not be heard until
the day of sentencing, on March 20, 2018. Dkt. 24, Exhibit 2
(Declaration of Paul Thompson).
Farzad requests a stay if this Court requires him to exhaust
his state judicial remedies before ruling on his petition or
if sentencing will otherwise occur before the Court has ruled
on his petition. Dkt. 18. The Court turns first to the
question of exhaustion.
Exhaustion of State Judicial Remedies
§ 2254 petitioner must first exhaust those state
remedies available to him before bringing a habeas petition
claiming double jeopardy in federal court. Hartley v.
Neely, 701 F.2d 780, 781 (9th Cir.1983), Greyson v.
Kellam, 937 F.2d 1409, 1412- 13 (9th Cir.1991). However,
Mr. Farzad has filed a § 2241 petition and as discussed
further herein, this difference comes with a distinction. In
addition, Mr. Farzad contends that requiring him to exhaust
his state judicial remedies would be futile.
Mr. Farzad has not yet exhausted his state judicial remedies
as he has not yet been sentenced. As previously noted, he
filed a motion to dismiss, which the trial court will not
hear until the day of sentencing. Moreover, with regard to
the issue at the heart of Mr. Farzad's double jeopardy
claim, Washington Supreme Court precedent is directly
contrary to that of the federal courts. In his motion to
dismiss, Mr. Farzad seeks to “give the Washington
Supreme Court an opportunity to revisit
Glasmann.” Dkt. 20 at 6 (citing Ex. 22 at 3
(trial court record)). In State v. Glasmann, the
Washington Supreme Court ruled just two years ago, in a 6 to
3 decision, that if (1) the state charges a person with
greater and lesser offenses and the jury is unable to agree
regarding the greater offense but finds the defendant guilty
of the lesser offense and (2) the defendant's conviction
for the lesser offense is reversed on appeal, then the State
may retry the defendant for the greater offense without
violating double jeopardy. State v. Glasmann, 183
Wn.2d 117, 119 (2015). As Mr. Farzad's case appears to fall
squarely within these parameters, it is highly unlikely he
will succeed on his double jeopardy claim in state court.
Under these circumstances, Mr. Farzad argues that requiring
him to exhaust his state judicial remedies would be futile.
The Superior Court will be bound to reject his double
jeopardy claim under Glasmann which, to a state
court, is directly on point. Mr. Farzad will then have to
seek interlocutory review in the Washington Court of Appeals
and, unless the Superior Court grants another continuance,
will also have to file an emergency motion for a stay to
prevent his sentencing in the interim. After the Court of
Appeals rejects his double jeopardy claim under
Glasmann, he will have to seek discretionary review
in the Washington Supreme Court. Since that court addressed
this same issue so recently in Glasmann and ruled
solidly against Mr. Farzad's position, that step, too,
will most likely be futile.
exhaustion of state remedies under these circumstances is
contrary to the rationale underlying the doctrine of
exhaustion, which is aptly described by the Supreme Court as
a “judicially crafted instrument which reflects a
careful balance between important interests of federalism and
the need to preserve the writ of habeas corpus as a
‘swift and imperative remedy in all cases of illegal
restraint or confinement.'” Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 490
(1973) (citation omitted).
the Ninth Circuit has recognized a futility exception to the
exhaustion requirement, see Matias v. Oshiro, 683
F.2d 318, 320-21 (9th Cir. 1982) (citing Sweet v.
Cupp, 640 F.2d 233, 236 (9th Cir. 1981))
(“petitioner need not exhaust state remedies which
would clearly be futile”), it has also drawn back from
that position in light of Engle v. Isaac, 456 U.S.
107 (1982) (involving 28 U.S.C. § 2254), at least with
regard to statutory exhaustion requirements. See Noltie
v. Peterson, 9 F.3d 802, 805-06 (9th Cir. 1993). Cf.
Booth, 532 U.S. at 741 (“we will not read futility
or other exceptions into statutory exhaustion requirements
where Congress has provided otherwise.”). However,
under § 2241, exhaustion is a prudential, rather than
statutory, requirement. Cf. Santiago-Lugo, 785 F.3d
at 474. (“Congress said nothing at all in § 2241
about exhaustion, which is a judge-made requirement.”).
Additionally, in § 2241 habeas cases, district courts
may waive the exhaustion requirement where pursuit would be
shall dispense with the exhaustion requirement in this §
2241 case. In addition, because the state court sentencing is
less than three weeks away, the Court will temporarily enjoin
the state court from proceeding with sentencing until this
Court has an opportunity to rule on Mr. Farzad's