United States District Court, W.D. Washington, Tacoma
Joshua N. DeLeon, Petitioner,
Jeffrey A. Uttecht Respondent.
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.
Joshua N. DeLeon. filed his federal habeas petition on May
13, 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 petitioner's motion requesting the
Court to rule on the petition (“motion to rule on the
petition”) (Dkt. 8) as moot without prejudice.
is in custody under a state court judgment and sentence
imposed for his conviction by guilty plea for rape of a child
in the first degree, child molestation in the first degree,
and child molestation in the second degree. Dkt. 12, Exhibit
1. Petitioner was sentenced on May 11, 2018. Id.
Although in the petition, petitioner states he did not file a
direct appeal, see Dkt. 7, the state court record
filed by respondent reflects that petitioner's direct
appeal is still pending in the Washington Court of Appeals
under Cause No. 51934-8-II. See Dkt. 7; Dkt. 12,
Exhibits 2, 3, 4. Petitioner filed this petition on May 13,
2019. Dkts. 1, 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 22, 2019, respondent filed an answer, wherein
he asserts that petitioner has not properly exhausted his
available state court remedies. Dkt. 11. Respondent maintains
that the petition should be dismissed without prejudice for
failure to exhaust state remedies. Dkt. 11. Respondent does
not address whether federal intervention with
petitioner's pending state criminal proceedings would be
inappropriate under the Younger abstention doctrine.
See Younger v. Harris, 401 U.S. 37 (1971). And the
Court sees no reason to make a determination on the
Younger abstention issue at this time, since the
matter can be resolved without reaching that issue.
Court notes that on August 18, 2019, petitioner filed an
“Rebuttal to the Court's Report and
Recommendation.” Dkt. 13. However, at that time, there
was no pending report and recommendation in this matter.
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, which
is still pending in his direct appeal in state court. Dkt.
12, Exhibits 2, 3, 4. Because petitioner's direct appeal
is still pending, the state courts have not had a full
opportunity to resolve any constitutional issues. Moreover,
the time for filing a state court collateral challenge has
not expired. See RCW § 10.73.090. The Court
also notes that the state court may resolve petitioner's
direct appeal in his favor, which could moot this petition.
Therefore, the Court finds that petitioner's claims
should be dismissed without prejudice because he has not
exhausted the state court remedies. See Watson v.
Lampert, 27 Fed.Appx. 824 (9th Cir. 2001) (affirming the
district court's decision to dismiss the petition without
prejudice for failure to exhaust when the petitioner's
direct appeal was pending at the time he filed his §
decision to hold an evidentiary hearing is committed to the
Court's discretion. Schriro v. Landrigan, 550
U.S. 465, 473 (2007). “[A] federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Id. at 474. In determining whether relief is
available under 28 U.S.C. § 2254(d)(1), the Court's
review is limited to the record before the state court.
Cullen, 563 U.S. at 181-82. A hearing is not
required if the allegations would not entitle petitioner to
relief under §2254(d). Landrigan, 550 U.S. at
474. “It follows that if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing.” Id. The Court finds that
it is not necessary to hold an evidentiary hearing in this
case because, as discussed in this report and recommendation,
the petition may be resolved on the existing state court