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.
Brandon Eugene Dockter, who is proceeding pro se,
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254. Dkt. 6. Petitioner challenges his 2018
conviction and sentence for Rape in the Second Degree and
Indecent Liberties in Clark County Superior Court, No.
17-1-00524-0. Id. The petition has not been served
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-on its face-is
subject to dismissal due to a failure to exhaust state court
remedies. Petitioner plainly admits that his judgment and
sentence remain under direct appeal. Dkt. 6 at 3. In
addition, Petitioner's appeal raises entirely distinct
grounds from those listed in his habeas petition.
Id. Petitioner indicates that he intends not to
bring his 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. 1 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.
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 federal habeas corpus 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
Dockter must raise the grounds for relief contained in his
habeas petition to the Washington Court of Appeals and
Washington Supreme Court. 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. 1 at 6. 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 (case No. 51928-3-II), and he has yet to
file any personal restraint petitions. Dkt. 1 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 prejudice.
on the foregoing discussion, the Court finds that his
petition is not eligible for federal habeas review. The Court
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 is also directed to
update the case title.