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Krause v. Stewart

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

September 13, 2019

KEITH DALE KRAUSE, Petitioner,
v.
BELINDA STEWART, Respondent.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         Petitioner seeks 28 U.S.C. § 2254 habeas relief from his 1994 criminal convictions in King County Superior Court, case number 94-1-01485-1 for five counts of first degree child molestation and one count of first degree rape. See Dkt. 5. He contends the exceptional sentence imposed by the Superior Court Judge violates the “Supremacy Clause.” Id. The Court's records establish this federal habeas petition is a second or successive petition, is untimely, and requests relief based upon judicial rulings made after final judgment was entered and which may not be applied retroactively to this federal petition. The Court accordingly recommends the habeas petition be DISMISSED with prejudice and that a Certificate of Appealability (COA) not be issued.

         BACKGROUND

         On September 16, 1994, a King County Superior Court Judge sentenced petitioner to a total of 360 months of imprisonment. Dkt. 5. Petitioner contends 280 months of the sentence was imposed within the state sentencing guideline range and the remaining 80 months was imposed as an exceptional sentence above the guideline range. Id. In October, 1998, petitioner filed a petition for writ of habeas corpus challenging his 1994 King County conviction. See C98-1453-JCC, Dkt. 1. On July 23, 1999, the Honorable John C. Coughenour issued an order denying relief and dismissing the case. Id. at Dkt. 39. Petitioner subsequently filed a motion for permission to file a notice of appeal. Id. at Dkt. 44. Judge Coughenour construed the motion as a request for issuance of a COA and denied it finding petitioner failed to show he was prejudiced by the alleged constitutional violations at or before trial and that he also failed to present evidence his trial lawyer was so deficient that petitioner was deprived of a fair trial. Id. at Dkt. 46.

         On September 4, 2019, petitioner submitted the instant habeas petition, a copy of his judgment and sentence, and a brief in support of the petition. Dkt. 1. The petition was submitted using a form “Petition for Writ of Habeas Corpus under 28 U.S.C. 2241.” 28 U.S.C. § 2241 “provides generally for the granting of writs of habeas corpus by federal courts, implementing ‘the general grant of habeas authority provided by the Constitution.'” Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (quoting White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004). Section 2241 provides the authority for granting habeas relief to a person “who is not in custody pursuant to a state court judgment” but, rather, who is in custody for some other reason, such as pretrial detention or awaiting extradition. White, 370 F.3d at 1006; see also Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (Section 2241's general grant of habeas authority is available to someone who is not in custody pursuant to a state court judgment, such as someone in a criminal trial or awaiting extradition); McNeely v. Blanas, 336 F.3d 822, 824 & n. 1 (9th Cir.2003) (allowing a California pretrial detainee asserting a speedy trial claim to proceed under Section 2241).

         In contrast, when a prisoner is in custody pursuant to a state court judgment, § 2254 constitutes his only habeas remedy for any challenge to his detention, regardless of the nature of such a challenge. White, 370 F.3d at 1009-10 (holding § 2254 was a state prisoner's exclusive remedy when he sought to challenge his transfer from a state prison to a privately-run prison in another state). “§ 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction.” Id.

         28 U.S.C. § 2241 and 28 U.S.C. § 2254 thus cover separate situations.” White, 370 F.3d at 1008. A federal court faced with a habeas petition must conduct “a ‘status inquiry into the source of the petitioner's custody, and not an inquiry into the target of the petitioner's challenge.'” Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (citation omitted). “[I]t is only when § 2254 does not apply to a state prisoner (because he is not in custody pursuant to a state court judgment) that he can resort to the Constitution, Article I, Section 9, Clause 2, and § 2241 (to the extent it is different than the Great Writ protected by the Constitution).” White, 370 F.3d at 1007; see also Id. (“when a [state] prisoner begins in the district court, § 2254 and all associated statutory requirements apply no matter what statutory label the prisoner has given the case'”) (citation omitted).

         Here, petitioner has been in state custody since at least 1994 when a state court judge imposed a state criminal sentence totaling 360 months of imprisonment. Section 2254 is therefore the exclusive vehicle for his habeas petition because petitioner challenges the exceptional sentence and term of custody imposed pursuant to a state court judgment. In his brief, petitioner contends he has served 280 months of his sentence (as of September 15, 2017) and he is thus serving the remaining the 80 months that was imposed as an exceptional sentence. Petitioner contends he has repeatedly argued in the state courts the exceptional sentence is void and contrary to “the laws of congress” and the United States Constitution in violation of the Supremacy Clause. In specific he argues his exceptional sentence is invalid because it was imposed by a judge based upon factors created by the Washington State Legislature rather than facts found by a jury.

         In support of this argument, petitioner claims under Jones v. United States, 526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2008), “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Although petitioner's brief cites to Jones and Apprendi, petitioner contends he has never argued in the state courts that these cases or Blakely v. Washington should be applied retroactively; rather he argues his request for relief relies upon the Supremacy Clause.

         DISCUSSION

         A. The Petition is Barred by the Statue of Limitations

         This habeas petition was filed more than ten years after petitioner's state judgment became final and is thus barred by the federal habeas statute of limitations. This is evident because petitioner was sentenced in 1994 and filed his first federal habeas petition challenging this conviction in 2008. Because this petition is filed far past the limitations period, the Court has considered whether there is an exception to the statute of limitations which applies here. The Court concludes no exception applies. The petition claims the exceptional sentence imposed in this case is null and void based upon the Supremacy Clause. In support, petitioner's brief cites to cases that predate his conviction. Petitioner also cites to cases that post-date his conviction but argues he is not relying upon these cases and relies entirely upon the Supremacy Clause. Even if the Court were to consider the Apprendi line of cases post-dating petitioner's conviction, these cases are not retroactive to cases seeking collateral relief and therefore are not grounds for relief.

         The present federal habeas petition thus does not rely upon newly discovered evidence or new United States Supreme Court law made applicable to cases on collateral review. Rather it asserts a claim for relief based upon existing law which petitioner knew about or should have known about when he was sentenced in 1994. This untimely federal habeas petition should thus be dismissed with prejudice.

         1.The Federal Statute of Limitations, 28 ...


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