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Lipsey v. Uttecht

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

September 18, 2019

Gary Lipsey, Petitioner,
v.
Jeffrey A. Uttecht, Respondent.

          REPORT AND RECOMMENDATION

          David W. Christel United States Magistrate Judge

         The 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 prejudice.

         BACKGROUND

         Petitioner 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.

         Petitioner 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. Dkt. 19.

         DISCUSSION

         I. Exhaustion

         “[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 constitutional issues by invoking one complete round of the State's established appellate review.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         Here, 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.[1] 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 court.”).

         II. Available State Remedies

         Respondent 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).

         Here, 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).

         In the 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.

         Petitioner 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 ...


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