United States District Court, W.D. Washington, Tacoma
Donald H. McElfish, Petitioner,
Jeffrey A. Uttecht, Respondent.
REPORT AND RECOMMENDATION
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
District Court has referred this action to United States
Magistrate Judge J. Richard Creatura. Petitioner Donald H.
McElfish filed his federal habeas petition
(“petition”), pursuant to 28 U.S.C. § 2254,
seeking relief from his state court convictions and sentence.
See Dkts. 1, 7. The Court concludes that petitioner
failed to properly exhaust his state court remedies as to all
grounds raised in the petition. Because petitioner's time
for pursuing state remedies has expired, petitioner has
procedurally defaulted on all his claims. Therefore, the
Court recommends that the petition be dismissed with
prejudice. The Court also recommends denying all pending
motions (Dkts. 8, 14) as moot.
is in custody under a state court judgment and sentence
imposed for his convictions for attempted rape, kidnapping
and assault. Dkt. 12, Exhibit 1.
appealed his judgment and sentence to the Washington Court of
Appeals. Dkt. 12, Exhibit 3. The Washington Court of Appeals
affirmed the convictions, but reversed petitioner's
sentence with respect to financial obligations because the
lower court did not consider petitioner's ability to pay.
Dkt. 12, Exhibit 2. Petitioner moved for reconsideration,
which the Washington Court of Appeals denied. Dkt. 12,
Exhibits 6, 8.
then sought review by the Washington Supreme Court,
presenting the following issues for consideration: (1)
insufficiency of the evidence; (2) prosecutorial misconduct;
(3) ineffective assistance of counsel; and (4) prosecutor
vouched for a witness. Dkt. 12, Exhibit 9. The Washington
Supreme Court denied review on June 1, 2016. Dkt. 12, Exhibit
11. The Washington Court of Appeals issued the mandate on
June 10, 2016. Dkt. 12, Exhibit 12.
his direct appeal was pending, petitioner filed a
post-conviction motion for a new trial in superior court,
which was transferred to the Washington Court of Appeals as a
personal restraint petition (“PRP”). Dkt. 12,
Exhibits 13, 14. The Washington Court of Appeals initially
accepted the transferred PRP, but later remanded the matter
back to the superior court as a motion for a new trial. Dkt.
12, Exhibits 16, 17. On remand, the superior court granted
petitioner's motion for a new trial. Dkt. 12, Exhibit 19.
Washington Court of Appeals reversed the superior court's
order granting petitioner's motion for a new trial and
remanded the matter back to the superior court. Dkt. 12,
Exhibits 21, 23, 24, 25, 26. Petitioner sought review by the
Washington Supreme Court, presenting the following issues:
(1) whether the Washington Court of Appeals reliance on the
trial court's findings of substantial evidence was
erroneous and (2) whether the trial court erred in finding
that there was no direct evidence corroborating the
witness' testimony. Dkt. 12, Exhibit 27. The Washington
Supreme Court denied review on January 3, 2018. Dkt. 12,
Exhibit 29. The Washington Court of Appeals issued the
mandate on January 26, 2018. Dkt. 12, Exhibit 30.
remand, the superior court denied petitioner's motion for
a new trial. Dkt. 12, Exhibit 31. Petitioner then appealed to
the Washington Court of Appeals. Dkt. 12, Exhibits 32, 33,
34. Petitioner's appeal from the order denying the motion
for new trial remains pending before the Washington Court of
Appeals. See id.
8, 2019, petitioner filed this petition pursuant to §
2254. Dkts. 1, 7. Petitioner raises four grounds for relief
all based on his claim that he a grand jury did not issue an
indictment to charge him, and the State of Washington does
not have jurisdictional authority to decide federal matters.
Dkt. 7. On July 31, 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 with prejudice as
unexhausted and procedurally barred. 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 deciding the issue. Petitioner
filed a traverse. Dkt. 13.
maintains that petitioner failed to exhaust the grounds
raised in the petition and is procedurally barred from
federal review. Dkt. 11.
Exhaustion of State Remedies
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 ...