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Rishor v. United States

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

May 30, 2019

KIRK RISHOR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S SECOND HABEAS PETITION

          MARSHA J. PECHMAN, UNITED STATES SENIOR DISTRICT JUDGE

         The above-entitled Court, having received and reviewed:

1. Petition (Dkt. No. 1) and Second Opening Brief (Dkt. No. 20),
2. Respondent State of Washington's Answer and Memorandum of Authorities (Dkt. No. 29),
3. Petitioner's Reply to the Washington State Attorney General's Response (Dkt. No. 31),

         all attached declarations and exhibits, and relevant portions of the record, rules as follows:

         IT IS ORDERED that the petition is DENIED, and the matter is DISMISSED.

         Background[1]

         In 2007, Petitioner plead guilty to second degree assault in Whatcom County, a plea which he then appealed. His judgment and sentence were affirmed by the Court of Appeals, and Petitioner sought no further review of that determination in state court.

         In November of 2007, Petitioner filed a motion to dismiss in Whatcom County and also a petition for habeas corpus. In January of 2008, Whatcom County Superior Court denied his motion as well as his petition, and Petitioner appealed those decisions. The state Court of Appeals vacated the January order and remanded for consideration of Petitioner's motions in light of the requirements of CrR 7.8. Whatcom Superior Court then transferred Petitioner's motion and habeas petition to the Court of Appeals as a personal restraint petition (“PRP”).

         However, instead of filing a PRP brief, Petitioner filed a motion for relief from judgment, which the Court of Appeals dismissed. The Washington Supreme Court denied Petitioner's request for review on September 9, 2010.

         One year later (September 9, 2011), Petitioner filed his first federal habeas petition, challenging his 2007 state conviction. See C11-1492-MJP. This Court initially denied relief (Id. at Dkt. No. 10), but eventually vacated that judgment and granted the habeas petition. Id. at Dkt. No. 65. The Ninth Circuit Court of Appeals reversed and remanded back to this Court. In conformity with the appellate remand, the petition was denied and judgment entered in favor of Respondent. Id. at Dkt. No. 76. Petitioner's request for certiorari to the Supreme Court was denied on June 5, 2017.

         Turning to the current matter: On May 14, 2018, Petitioner filed a motion under § 2255 alleging ineffective assistance of counsel. Dkt. No. 1. On January 30, 2019, the United States' motion to recharacterize the petition under § 2254 was granted (Dkt. No. 25); the State of Washington substituted in as the proper responding party shortly thereafter. Dkt. Nos. ...


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