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McElfish v. Uttecht

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

September 16, 2019

Donald H. McElfish, Petitioner,
v.
Jeffrey A. Uttecht, Respondent.

          REPORT AND RECOMMENDATION

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE

         The 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.

         BACKGROUND

         Petitioner is in custody under a state court judgment and sentence imposed for his convictions for attempted rape, kidnapping and assault. Dkt. 12, Exhibit 1.

         Petitioner 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.

         Petitioner 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.

         While 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.

         The 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.

         On 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.

         On May 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.

         DISCUSSION

         Respondent maintains that petitioner failed to exhaust the grounds raised in the petition and is procedurally barred from federal review. Dkt. 11.

         1. Exhaustion of State Remedies

         “[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 ...


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