United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
District Court has referred this petition for a writ of
habeas corpus to United States Magistrate Judge J. Richard
Creatura. The Court's authority for the referral is 28
U.S.C. § 636(b)(1)(A) and (B), and local Magistrate
Judge Rules MJR3 and MJR4. Petitioner filed the petition
pursuant to 28 U.S.C. § 2254.
Billy Joe Bishop filed his federal habeas petition on June
16, 2019 pursuant to 28 U.S.C. § 2254, seeking relief
from his state court convictions and sentence. See
Dkt. 1. The Court concludes that petitioner failed to
properly exhaust his state court remedies as to all grounds
raised in the petition; however, a state remedy remains
available to petitioner. Therefore, the Court recommends that
the petition be dismissed without prejudice. The Court also
recommends denying all pending motions (Dkts. 10, 11) as moot
is in custody under a state court judgment and sentence
imposed for his conviction by guilty plea for failure to
register as a sex offender and escape from community custody.
Dkt. 13, Exhibit 5. Petitioner was sentenced on January 28,
2018. Id. Petitioner did not file a direct appeal.
See Dkt. 7.
raises four grounds for relief all based on his claim that he
is unlawfully detained, and that the State of Washington does
not have jurisdictional authority to decide federal matters.
Dkt. 7. On July 23, 2019, respondent filed an answer, wherein
he asserts that petitioner has not properly exhausted his
available state court remedies. Dkt. 12. Respondent maintains
that the petition should be dismissed without prejudice for
failure to exhaust state remedies. Dkt. 12. In the
alternative, respondent argues that his claims fail to state
a federal constitutional ground for habeas corpus relief and
should be dismissed. Dkt. 12. Petitioner filed a traverse.
See Dkt. 14.
state prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition
for habeas corpus.” Picard v. Connor, 404 U.S.
270, 275 (1971). Petitioner's claims will be considered
exhausted only after “the state courts [have been
afforded] a meaningful opportunity to consider allegations of
legal error without interference from the federal
judiciary.” Vasquez v. Hillery, 474 U.S. 254,
257 (1986). “[S]tate prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
petitioner challenges his 2018 judgment and sentence. Dkt. 7;
Dkt. 13, Exhibits 1-5. Petitioner acknowledges in the
petition that he has not filed a direct appeal or sought
further review by a state court. Dkt. 7. Because the state
courts have not yet had a full and fair opportunity to
consider the merits of petitioner's claims, the claims
are unexhausted and therefore ineligible for federal habeas
review. See Schwartzmiller v. Gardner, 752 F.2d
1341, 1349 (9th Cir. 1984) (“The exhaustion of state
remedies doctrine limits the issues a habeas corpus
petitioner may raise in federal court to the ‘same
claims' that are ‘fairly' presented to the
highest state court.”).
petitioner has an available state remedy. Washington State
imposes a one-year statute of limitations on the filing of a
personal restraint petition or other post-conviction
challenge. RCW § 10.73.090. In this case, petitioner did
not file a direct appeal, thus, his judgment became final for
purposes of state law on January 28, 2019, the date it was
filed with the clerk of the trial court. Dkt. 13, Exhibit 5;
RCW § 10.73.090(3)(a). Petitioner has one year from the
date the judgment became final, or until January 28, 2020, to
file a petition or motion for post-conviction relief in state
court. See RCW § 10.73.090(1), (2), (3)(a).
traverse, petitioner contends that it is not appropriate for
him to exhaust his state remedies because the petition is a
“[c]onstitutional challenge of state action” and
the federal district court has original jurisdiction. Dkt. 14
at 1-2. The Court may consider an unexhausted federal habeas
petition if it appears “there is an absence of
available State corrective process . . . or circumstances
exist which render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. 2254(b)(1)(B).
However, petitioner has not shown there is an absence of
available state corrective processes or that circumstances
exist rendering any state process ineffective. Rather,
petitioner appears to disagree with the exhaustion
requirement and the state court's jurisdictional
authority. Accordingly, the Court finds that petitioner has
not shown there are no state court remedies available to him.
failed to properly exhaust his state remedies and state
remedies remain available to him. Based on the foregoing, the
Court declines to consider whether petitioner's claims
fail to sate a federal constitutional ground for relief.
See Dkt. 12. Accordingly, the undersigned recommends
that the petition be dismissed without prejudice. See
Hill v. Hill, 2001 WL 34727917 (D. Or. June 29, 2001).