United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING HABEAS PETITION WITHOUT PREJUDICE
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable
Theresa L. Fricke, United States Magistrate Judge, Dkt. 9,
and Petitioner Martin Fritz III's
(“Petitioner”) objections to the R&R, Dkt.
13, 2019, Petitioner filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his 2018 conviction for Rape in the Third Degree
and Child Molestation in the First Degree in Kitsap County
Superior Court for the State of Washington. Dkt. 6.
17, 2019, Judge Fricke ordered Petitioner to show cause why
the petition should not be dismissed for failure to exhaust
state court remedies. Dkt. 7. Relevant to that order and
Petitioner's instant objection is his claim that state
courts may never consider the claims raised in his federal
habeas petition, which asserts that state courts lack
jurisdiction over issues that are raised under the United
States Constitution. Dkt. 6 at 5-12. Petitioner admits that
he has not filed a direct appeal or otherwise collaterally
attacked his conviction on this basis in state court.
Id. at 2, 3.
responded to the show cause order. Dkt. 8. On July 30, 2019
Judge Fricke issued the R&R recommending dismissal of
Petitioner's petition before service for failure to
exhaust state judicial remedies and recommending denial of a
certificate of appealability. Dkt. 9. Judge Fricke noted the
R&R for consideration on this Court's August 16, 2019
calendar with objections due on the same date. Id.
August 19, 2019, Petitioner untimely filed objections to the
R&R using the CM/ECF system as a prisoner e-filer. Dkt.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(c). The Supreme Court has held that the Federal
Magistrates Act does not require the district judge to review
any issue in a R&R that is not subject to an objection.
See, e.g., Thomas v. Arn, 474 U.S. 140, 149
Petitioner has access to CM/ECF and therefore his objections
are untimely on their face, the Court will consider the
objections on the merits. First, Petitioner argues that his
conviction violated his right to equal protection of the law
and that federal courts have original jurisdiction over this
claim pursuant to 28 U.S.C. § 1343. Dkt. 10 at 1.
Petitioner contends that the district court must hear his
petition before its claims are considered by the Washington
courts pursuant to this grant of original jurisdiction.
Id. Petitioner, however, readily acknowledges that
he “has submitted a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254.” Id.; see also
Dkt. 1 (proposed petition for writ of habeas corpus), Dkt. 6
(petition for writ of habeas corpus).
Supreme Court has held that “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). Moreover, § 2254(b)(1) provides that a district
court “shall not” grant an application for a writ
of habeas corpus unless the prisoner has first
“exhausted the remedies available” in state
court. 28 U.S.C. § 2254(b)(1). A 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). Consequently, “state
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). Because Petitioner failed to present any claim of a
violation of his federal rights to the state court first, the
Court agrees with Judge Fricke that Petitioner has failed to
exhaust state judicial remedies and that the Court must
dismiss his petition. See Coleman v. Thompson, 501
U.S. 722, 731 (1991) (stating that a federal court must
dismiss a federal habeas petition if its claims are
unexhausted). Therefore, Petitioner's objection on the
basis that the district court has a “duty” to
hear his claims is denied.
Petitioner argues that he meets a statutory exception to the
exhaustion requirement because “the state has a statute
in place, which expressly forecloses relief on the merits of
petitioner's procedural situation.” Dkt. 10 at 2.
Petitioner does not identify the statute. Id. 28
U.S.C. § 2254(c) provides that “[a]n applicant
shall not be deemed to have exhausted the remedies available
in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to
raise, by any available procedure, the question
presented.” In Washington, criminal defendants have a
statutory right to direct appeal and collateral attack.
See, e.g., RCW Chapter 10.73; see also
Wash. R. App. P. §§ 2.2(a), 5.1, 6.1, 16.3, 16.4.
Because Petitioner had the right to raise the questions he
presents in his federal petition in the state court, he
“shall not be deemed to have exhausted” the
remedies available to him in state court. Therefore, his
objection on this basis is denied.
Petitioner continues to argue that state courts lack
jurisdiction to adjudicate his claim that the manner in which
he was charged violates his constitutional right to
indictment by a grand jury. Dkt. 10 at 4. Since 1886,
however, the Supreme Court has affirmed that a state
prosecutor does not violate the Due Process Clause of the
Fourteenth Amendment by bringing charges based on a criminal
information as opposed to an indictment issued by a grand
jury. Hurtado v. People of State of California, 110
U.S. 516 (1886). Regardless, Petitioner must exhaust this
claim in the state court before this Court will consider it
in a federal habeas petition.
Petitioner's assertion that he has a right to indictment
by grand jury as a state prisoner that stems from the
Privileges and Immunities Clause of the Fourteenth Amendment
rather than the Due Process Clause of the Fourteenth
Amendment, see Dkt. 10 at 4, does nothing to alter
the Court's conclusion that he has failed to exhaust the
claims raised in his federal habeas petition. Said another
way, whether Petitioner brings his claim of a constitutional
violation under the Due Process Clause or the Privileges and
Immunities Clause is irrelevant to whether the claim has been
exhausted. Therefore, Petitioner's objection on this
basis is also denied.
lodges numerous other objections that are meritless.
Therefore, the Court having considered the R&R,
Petitioner's objections, and remaining ...