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Neeley v. Uttecht

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

October 4, 2019

KEVIN NEELEY, Petitioner,
v.
JEFFREY A UTTECHT, Respondent.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke, United States Magistrate Judge.

         Petitioner, who is proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 31, 2019. Dkts. 1, 6. The petition has not been served on the respondent. By order dated August 27, 2019, the Court directed petitioner to show cause why his petition should not be dismissed for failure to exhaust state judicial remedies. Dkt. 7. Petitioner filed a document in response entitled "Motion for Reconsideration" which raises arguments regarding the issue of exhaustion. Dkt. 8.

         As petitioner's filing (Dkt. 8) appears to be a response to the Court's order to show cause, the Court should construe it as such. It would be appropriate for the Clerk to strike its designation as a motion on the docket.

         Alternatively, to the extent petitioner's response could also be considered a motion for reconsideration of the Court's order to show cause, it should be denied because petitioner fails to meet his burden on reconsideration. Furthermore, having considered petitioner's response to the order to show cause, the Court should dismiss the federal habeas petition without prejudice for failure to exhaust state judicial remedies. Also, for the reasons set forth below, the Court should deny issuance of a certificate of appealability(COA).

         BACKGROUND

         Petitioner challenges his November 13, 2018, conviction and sentence for eight counts of Possession of Child Pornography in the First Degree and two counts of Possession of Child Pornography in the Second Degree. Id. Dkts. 1, 6. Petitioner seeks release from incarceration on the grounds that he is "illegally and unlawfully imprisoned as a result of the abrogation of my federally conferred Constitutional rights by the State of Washington and its willful defiance of the established procedures and processes set forth by the U.S. Constitution." Id., at 5. Petitioner contends his federal constitutional rights were violated because he was not charged in the state court by Grand Jury Indictment as required by the Fifth Amendment. Id.

         Petitioner does not state that he has exhausted his state court remedies. Id. In fact the petition affirmatively states that petitioner has not directly appealed his conviction, nor has he raised the grounds raised in his petition through a post-conviction motion or petition for habeas corpus in a state trial court. Id., at 1-13. Petitioner states that he did not appeal to the highest state court having jurisdiction because "[t]he State of Washington does not have jurisdictional authority to decide on United States Constitution matters, which are outside it's jurisdictional or statutory governing limits." Id., at 7-13. He further states that "[n]o grounds herein have been raised at the state level, as the state has no jurisdictional authority to rule on federal constitutional matters."[1] Id., at 12.

         By order dated August 27, 2019, petitioner was given an opportunity to show cause why his petition should not be dismissed for failure to exhaust his state judicial remedies. See Dkt. 7. Petitioner was advised that a state prisoner is required to exhaust all state court remedies, by fairly presenting claims of violation of federal rights before the state courts, before seeking a writ of habeas corpus. Id.; 28 U.S.C. § 2254(b)(1). Petitioner was advised that to properly exhaust his federal claims, he must finish "one complete round of the State's established appellate review process," up to the highest state court with powers of discretionary review. Id.; O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Petitioner was also advised that, based on his petition, it appeared state remedies remained available to him as, given his conviction and sentence date of November 13, 2018, the one-year statute of limitations for seeking post-conviction collateral relief in state court had not yet run. RCW 10.73.090; 28 U.S.C. § 2244(d); Dkt. 7.

         Petitioner filed a document in response to the Court's order to show cause entitled "motion for reconsideration" which raises arguments with respect to the issue of exhaustion. Dkt. 8. However, this document fails to establish a basis for reconsideration of this Court's order to show cause or to remedy the deficiencies in the petition noted by the Court's order to show cause. Id. Rather, the document re-iterates petitioner's jurisdictional arguments and calls for the court to consider the merits of his constitutional claims (that his federal constitutional rights were violated because he was not charged in the state court by Grand Jury Indictment) without considering exhaustion. Id.

         DISCUSSION

         A. Habeas Petition - Failure to Exhaust State Court Remedies

         Under Rule 4 of the rules governing § 2254 petitions, the Court must promptly examine a habeas petition when it is filed, and if it plainly appears from the petition and its attachments the petitioner is not entitled to relief, the Court must dismiss the petition.

         The Court concludes that petitioner's federal habeas petition should be dismissed without prejudice for failure to exhaust state court remedies. Petitioner plainly acknowledges he has not presented the claims raised in his petition to the highest state court and, as such, his petition is not eligible for federal habeas review. Dkt. 6, at 1-13. Exhaustion of state court remedies is a prerequisite to granting a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1).[2]Petitioner indicates that he does not intend to bring his claims to the state courts-state courts would never have the opportunity to consider the habeas claims raised in his federal petition- asserting that the state courts lack jurisdiction over issues that are raised under the United States Constitution. Dkt. 6, at 5-12.

         A state prisoner is required to exhaust all state court remedies, by fairly presenting claims of violation of federal rights before the state courts, before seeking a writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is a matter of comity, intended to afford the state courts the "initial opportunity to pass upon and correct alleged violations of its prisoners 'federal rights." Picardv. Connor,404 U.S. 270, 275 (1971) (emphasis added). This is appropriate, because "state courts, like federal courts, are obliged to enforce federal law." O'Sullivan v. Boerckel,526 U.S. 838, 844 (1999). To properly exhaust their federal claims, a would-be habeas petitioner must finish "one ...


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