United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE BY JULY 1, 2019, REGARDING WHY
COURT SHOULD NOT ORDER DISMISSAL WITHOUT PREJUDICE UNDER 28
U.S.C. § 2254, RULE 4
Theresa L. Fricke United States Magistrate Judge.
Richard A. Fisher, who is proceeding pro se, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. Dkt. 8. Petitioner challenges his 2018
conviction and sentence for multiple counts of child
molestation, rape of a child, forcible rape, and sexual
exploitation of a minor in Clark County Superior Court, No.
16-1-02798-2. Id. The petition has not been served
on respondent. Petitioner's motion requesting that the
Court rule on the merits of the petition is also before the
Court. Dkt. 10.
Rule 4 of the rules governing § 2254 petitions, the
Court must promptly examine a habeas petition when it is
filed, and if it plainly appears from the petition and its
attachments the petitioner is not entitled to relief, the
Court must dismiss the petition.
a careful review of the petition, the Court concludes that
petitioner's federal habeas petition is premature and
subject to dismissal on its face, due to a failure to exhaust
state court remedies. Petitioner plainly admits that his
judgment and sentence remain under direct appeal. Dkt. 8 at
3. In addition, Petitioner's appeal raises entirely
distinct grounds from those listed in his habeas petition.
Id. Petitioner indicates his intention not to bring
his federal claims to the state courts-state courts would
never have the opportunity to consider the habeas claims
raised in his federal petition-asserting that the state
courts lack jurisdiction over issues that are raised under
the United States Constitution. Dkt. 8 at 6-8, 10-11, 13.
However, this Court is statutorily prohibited from
considering any federal habeas claims that have not been
presented and exhausted in the state courts. See 28
U.S.C. § 2254(b)(1). The Court therefore orders the
petitioner to show cause why the Court should not dismiss
this federal habeas corpus petition without prejudice.
Accordingly, the Court denies petitioner's motion
requesting the Court to rule on the petition.
prisoner is required to exhaust all state court remedies, by
fairly presenting claims of violation of federal rights
before the state courts, before seeking a writ of habeas
corpus. 28 U.S.C. § 2254(b)(1). The exhaustion
requirement is a matter of comity, intended to afford the
state courts the “initial opportunity to pass upon and
correct alleged violations of its prisoners'
federal rights.” Picard v. Connor,
404 U.S. 270, 275 (1971) (emphasis added). This is
appropriate, because “state courts, like federal
courts, are obliged to enforce federal law.”
O'Sullivan v. Boerckel, 526 U.S. 838, 844
(1999). To properly exhaust their federal claims, a would-be
habeas petitioner must finish “one complete round of
the State's established appellate review process, ”
up to the highest state court with powers of discretionary
review. Id., 845.
federal court must dismiss a habeas petition if its claims
are unexhausted. Coleman v. Thompson, 501 U.S. 722,
731 (1991). This Court has the sua sponte authority
to examine the question of exhaustion at this stage of
review. Campbell v. Crist, 647 F.2d 956, 957 (9th
Cir. 1981) (“This court may consider whether state
remedies have been exhausted even if the state does not raise
the issue”). Where a case remains under appeal, a
habeas petition is premature. See Sherwood v.
Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (petitioner
seeking federal habeas relief must await the outcome of his
state court appeal); Daniels v. Nelson, 415 F.2d
323, 323 (9th Cir. 1969) (“habeas petition, filed while
[petitioner's] state appeal was pending, is
Fisher must raise the grounds for relief contained in his
habeas petition to the Washington Court of Appeals and
Washington Supreme Court. In his petition, petitioner
contends he has not presented his grounds for relief to the
state courts because the state courts lack the
“jurisdictional authority to decide on United States
Constitution matters, which are outside [its] jurisdictional
or statutory governing limits.” Dkt. 8 at 6.
Petitioner's motion merely repeats petitioner's
jurisdictional argument above and calls for the court to
consider the merits of his constitutional claims without
considering exhaustion. Dkt. 9 at 2. In his motion,
petitioner contends that because a habeas petition is
“an original action, ” and not an appeal or a
mechanism requesting the review of [his] judgment of
conviction, ” that his right to habeas may not be
clogged by “exhaustion of any other remedy.”
this argument fails, because 28 U.S.C. § 2254(b)(1)
recognizes the jurisdiction of state courts to adjudicate
constitutional issues, without question. Federal habeas
relief is available to address where the state court's
adjudication was “contrary to, or an unreasonable
application of, clearly established federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
petition plainly states, petitioner has not properly
exhausted his claims for relief in the state courts. Even if
the petitioner believes it would be futile to argue his
Constitutional claims to the state courts, “the
apparent futility of presenting claims to state courts does
not constitute cause of procedural default.”
Roberts v. Arave, 847 F.2d 528, 530 (9th
Cir. 1988). The petition is premature because
petitioner's direct appeal of his judgment and sentence
is still pending. Dkt. 8 at 3. Therefore, the Court orders
petitioner to show cause why his petition is cognizable for
federal habeas review and should not be dismissed without
on the foregoing discussion, the Court finds that his
petition is not eligible for federal habeas review. The Court
therefore (1) denies petitioner's motion
requesting the Court rule on the petition and (2)
orders the petitioner to show cause in
writing why the petition should not be dismissed without
prejudice, to allow him to exhaust his claims in the state
courts. Petitioner must show cause by July 1,
2019. The failure to file a timely response may
result in the dismissal of this matter without prejudice.
the Clerk of Court is directed to substitute Jeffrey
A. Uttecht as the Respondent in this
action. The Clerk of Court ...