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Allred v. Uttecht

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

August 27, 2019

CHRISTOPHER ALLRED, Petitioner,
v.
JEFFERY A. UTTECHT, Respondent.

          ORDER TO SHOW CAUSE OR FILE AMENDED PETITION

          Theresa L. Fricke United States Magistrate Judge.

         Petitioner Christopher Allred, who is proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Dkt. 7. Petitioner challenges his August 2016 conviction and sentence for Second Degree Rape, two counts of First Degree Incest, and Second Degree Incest. Id. The petition has not been served on respondent.

         Under 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.

         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 indicates he filed a direct appeal, and he petitioned for review in the Washington State Supreme Court; his petition for review was denied on October 31, 2018. Dkt. 7, at 2. However, the grounds petitioner raised in his direct appeal __ the state presented expert testimony on delayed disclosure, ineffective assistance of counsel, government and prosecutorial misconduct, and false accusations __ are different from those raised in the instant federal habeas petition.

         Specifically, in his federal habeas corpus petition, petitioner contends his federal constitutional rights were violated under the Fifth and Thirteenth Amendment because he was not charged by Grand Jury Indictment. Dkt. 7, at 5-12. Petitioner indicates that he does not intend to bring the claims raised in his federal habeas petition 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.[1] Dkt. 7, at 5-12.

         The exhaustion of state court remedies is a prerequisite to granting a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)[2]. The Court therefore orders the petitioner, if he wants to pursue his claims in federal court, to take steps to address exhaustion.

         Either:

(1) show cause in writing why the Court should not dismiss this federal habeas corpus petition without prejudice to allow him to exhaust his current claims (i.e. his federal constitutional rights were violated under the Fifth and Thirteenth Amendment because he was not charged by Grand Jury Indictment) in the state courts;
or
(2) if petitioner intends to pursue in federal court the same grounds that he has already raised and exhausted on direct appeal in state court (i.e. the state presented expert testimony on delayed disclosure, ineffective assistance of counsel, government and prosecutorial misconduct, and false accusations), then he may file an amended petition identifying those grounds as the basis for seeking federal habeas relief and,
a. if petitioner decides he does not want to pursue his unexhausted claims in state court (i.e. his federal constitutional rights were violated under the Fifth and Thirteenth Amendment because he was not charged by Grand Jury Indictment), then he may delete those claims from the petition; or
b. if petitioner intends to pursue the other unexhausted grounds raised in his current habeas petition in state court (i.e. his federal constitutional rights were violated under the Fifth and Thirteenth Amendment because he was not charged by Grand Jury Indictment), then he may request that the Court order a stay of proceedings on the petition for habeas corpus (also known as a “mixed” petition because it would contain both exhausted, and unexhausted claims) to allow the petitioner to present his unexhausted claims to the state courts; he would then have an opportunity to return to federal court and request that the stay be lifted for a later review of his perfected petition (after every claim has been exhausted).

See Rhines v. Weber, 544 U.S. 269, 274-79 (2005) (When faced with a mixed petition containing both exhausted and unexhausted claims a federal district court may generally exercise one of three options: (1) dismiss the mixed petition without prejudice to allow the petitioner to present his unexhausted claims to the state court and then return to federal court to file a new habeas petition containing all of the claims; (2) stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court and then return to federal court for review of ...


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