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Farzad v. Snohomish County Superior Court

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

March 7, 2018

SAID FARZAD, Petitioner,
SNOHOMISH COUNTY SUPERIOR COURT, ROBERT W. FERGUSON, Washington State Attorney General, MARK ROE, Snohomish County Prosecuting Attorney, Respondents.

          BRIAN A. TSUCHIDA United States Magistrate Judge


          Marsha J. Pechman United States District Judge

         Petitioner 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.

         Respondents 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 be granted.

         The 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.


         In 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).

         On 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.

         Back in 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.

         The 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)).[1] 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).


         Mr. 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.

         A. Exhaustion of State Judicial Remedies

         A § 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.

         Clearly, 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).[2] 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.

         Requiring 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).

         Although 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 futile.

         Futility 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 petition.

         B. Stay ...

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