United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. Christel United States Magistrate Judge
District Court has referred this action to United States
Magistrate Judge David W. Christel. Petitioner Gary Lipsey
filed his federal habeas Petition on June 10, 2019 pursuant
to 28 U.S.C. § 2254, seeking relief from his state court
convictions and sentence. See Dkts. 1, 7. The Court
concludes 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 the Petition be dismissed
without prejudice. The Court also recommends denying all
pending motions (Dkts. 11, 12, 14, 18) as moot without
is in custody under a state court judgment and sentence
imposed for his conviction by guilty plea for conspiracy to
possess a controlled substance with intent to deliver and
unlawful use of a building for drug purposes. Dkt. 16,
Exhibit 1. Petitioner was sentenced on February 5, 2019.
Id. Petitioner did not appeal his judgment and
sentence in state court. Id.; Dkt. 7. Petitioner
filed this Petition on June 10, 2019. Dkts. 1, 7.
raises four grounds for relief all based on his claim he is
unlawfully detained, 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 Petitioner has not properly exhausted his available
state court remedies. Dkt. 15. Respondent maintains the
Petition should be denied without prejudice for failure to
exhaust state remedies. Dkt. 15. Petitioner filed a Traverse.
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 2019 judgment and sentence. Dkt. 7.
He acknowledges in the Petition he has not filed a direct
appeal and has not sought further review by a higher state
court. Dkt. 7. Because the state courts have not yet had a
full and fair opportunity to consider the merits of
Petitioner's claims, the claims are unexhausted and
therefore ineligible for federal habeas review. See
Schwartzmiller v. Gardner, 752 F.2d 1341, 1349 (9th Cir.
1984) (“The exhaustion of state remedies doctrine
limits the issues a habeas corpus petitioner may raise in
federal court to the ‘same claims' that are
‘fairly' presented to the highest state
Available State Remedies
maintains there is a state remedy available, and thus, the
Petition should be dismissed without prejudice. Dkt. 15 at 3.
If there is a state remedy available, Petitioner will need to
return to the state level to exhaust his claims. See
Johnson v. Lewis, 929 F.2d 460, 464 (9th Cir. 1991).
“The appropriate time to assess whether a prisoner has
exhausted his state remedies is when the federal habeas
petition is filed, not when it comes on for a hearing in the
district court or court of appeals.” Brown v.
Maass, 11 F.3d 914, 915 (9th Cir. 1993).
Petitioner has an available state remedy. Washington State
imposes a one-year statute of limitations on the filing of a
personal restraint petition or other post-conviction
challenge. RCW § 10.73.090. In this case, Petitioner did
not file a direct appeal, thus, his judgment became final for
purposes of state law on February 5, 2019, the date it was
filed with the clerk of the trial court. Dkt. 16, Exhibit 1;
RCW § 10.73.090(3)(a). Petitioner has one year from the
date the judgment became final to file a petition or motion
for post-conviction relief in state court. See RCW
§ 10.73.090(1), (2), (3)(a).
Traverse, Petitioner contends it is not appropriate for him
to exhaust his state remedies because the Petition is a
“[c]onstitutional challenge of state action” and
the federal district court has original jurisdiction. Dkt. 19
at 1-2. The Court may consider an unexhausted federal habeas
petition if it appears “there is an absence of
available State corrective process . . . or circumstances
exist which render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. 2254(b)(1)(B).
However, Petitioner has not shown there is an absence of
available state corrective processes or that circumstances
exist rendering any state process ineffective. Rather,
Petitioner appears to disagree with the exhaustion
requirement and the state court's jurisdictional
authority. Accordingly, the Court finds Petitioner has not
shown there are no state court remedies available to him.
failed to properly exhaust his state remedies and state
remedies remain available to him. Accordingly, the
undersigned recommends the Petition be dismissed without
prejudice. Se ...