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Bishop v. Uttecht

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

September 3, 2019

Billy Joe Bishop, Petitioner,
v.
Jeffrey A. Uttecht, Respondent.

          REPORT AND RECOMMENDATION

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.

         The 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.

         Petitioner 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 without prejudice.

         BACKGROUND

         Petitioner 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.

         Petitioner 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.

         DISCUSSION

         I. Exhaustion

         “[A] 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).

         Here, 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.”).

         However, 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).

         In the 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.

         Petitioner 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).

         EVIDENTIARY ...


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