United States District Court, W.D. Washington, Tacoma
TANNER D. BARBER, Petitioner,
JEFFREY A. UTTECHT, Respondent.
ORDER ON REPORT AND RECOMMENDATION
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Report and
Recommendation of U.S. Magistrate Judge J. Richard Creatura.
Dkt. 15. The Court has considered the Report and
Recommendation, objections, and the remaining file.
28 U.S.C. § 2254 habeas corpus petition, the Petitioner
challenges a state court conviction of several counts of rape
of a child and child molestation and the resulting January
11, 2019 sentence. Dkt. 1. His direct appeal is pending in
the Washington Court of Appeals Div. II; the appellants'
brief is due October 1, 2019. Washington v. Barber,
Washington Court of Appeals Div. II case number 531313. On
July 29, 2019, the Report and Recommendation was filed,
recommending that this petition be denied without prejudice
for failing to exhaust state court remedies on any of the
claims. Dkt. 15.
prisoners seeking a writ of habeas corpus from a federal
court must first exhaust their remedies in state court. A
petitioner has exhausted his federal claims when he has fully
and fairly presented them to the state courts.”
Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir.
2014)(citing 28 U.S.C. § 2254(b)(1)(A) and
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45,
119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)).
Report and Recommendation (Dkt. 15) should be adopted. The
Petitioner has not fully presented any of his claims to the
state courts. His first direct appeal is pending. Briefing is
not complete in that case. The Petitioner has failed to
exhaust his state court remedies as required by 28 U.S.C.
§ 2254(b)(1)(A). This federal habeas action is
Rhines v. Weber, 544 U.S. 269, 276 (2005), a
district court has discretion to stay a petition with both
exhausted and unexhausted claims to allow the petitioner time
to present his unexhausted claims to state courts. In the
Ninth Circuit, a “district court has the discretion to
stay and hold in abeyance fully unexhausted petitions under
the circumstances set forth in Rhines.”
Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). A
stay and abeyance under Rhines is available when:
(1) “the petitioner had good cause for his failure to
exhaust, ” (2) the petitioner's “unexhausted
claims are potentially meritorious, ” and (3)
“there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.”
Rhines, at 278.
does not request a stay here. In his objections, the
Petitioner maintains that the state courts do not have
jurisdiction to decide his claims. Dkt. 16. The Petitioner
fails to cite any authority that supports his position. His
remaining assertions are without merit and do not provide a
basis to reject the Report and Recommendation. Further, there
is no showing that a stay, rather than dismissal, is
appropriate. There is no showing that the petitioner had good
cause for his failure to exhaust. Rhines, at 278.
This case was filed a few months after the Petitioner was
sentenced. Further, it is unclear whether the
“unexhausted claims are potentially meritorious.”
Rhines, at 278. While “there is no indication
that the petitioner engaged in intentionally dilatory
litigation tactics” Rhines, at 278, there are
no other grounds to stay the case and hold it in abeyance
rather than dismissing it without prejudice.
a certificate of appealability should not issue. The
Petitioner also objects to the Report and
Recommendation's recommendation that a certificate of
appealability should not issue in this case. Dkt. 16. As
stated in the Report and Recommendation, reasonable jurists
could not debate whether, or agree that, the petition should
have been resolved in a different manner; the issues raised
are not adequate to deserve encouragement to proceed further;
and jurists of reason would not find it debatable whether the
court was correct in its rulings. Slack v. McDaniel,
529 U.S. 473, 484 (2000). A Certificate of Appealability
should be denied.
• The Report and Recommendation (Dkt. 15) IS
• This case IS DISMISSED WITHOUT
• The certificate of appealability IS
Clerk is directed to send uncertified copies of this Order to
Judge Creatura, all counsel of record, and to any party
appearing pro ...