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Allred v. Uttecht

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

October 8, 2019

CHRISTOPHER ALLRED, Petitioner,
v.
JEFFREY A UTTECHT, Respondent.

          REPORT AND RECOMMENDATION NOTED FOR OCTOBER 25, 2019

          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 22, 2019. Dkts. 1, 7. The petition has not been served on the respondent. As discussed in more detail below, by order dated August 27, 2019, petitioner was given an opportunity to either (1) show cause why his petition should not be dismissed for failure to exhaust state court remedies, or (2) file an amended petition. Dkt. 8. In response, to the Court's order, petitioner filed a document entitled “Motion to Compel Information (Show Cause)” which argues petitioner is not required to exhaust his state judicial remedies and asks the Court “to order Respondent to present the Bill of Indictment by a Grand Jury causing the order to Petitioner's arrest and detainment in accordance with the 5th Amendment[.]” Dkt. 9.

         The Court should dismiss the federal habeas petition without prejudice for failure to exhaust state judicial remedies. The Court should further deny petitioner's “Motion to Compel Information” as moot if the Court adopts the recommendation that the petition be dismissed. Also, for the reasons set forth below, the Court should deny issuance of a certificate of appealability (COA).

         BACKGROUND

         Petitioner challenges his August 2016 conviction and sentence for Second Degree Rape, two counts of First Degree Incest, and Second Degree Incest. Dkt. 7. 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. Petitioner indicates he filed a direct appeal on different grounds[1] than those raised in the instant petition and that his petition for review of those grounds was denied by the Washington State Supreme Court on October 31, 2018. Dkt. 8; Dkt. 7, at 2. Petitioner also indicates in his petition that he intends not to bring the claims raised in his federal habeas petition to the state courts-state courts would never have the opportunity to consider the habeas claims raised in his federal petition-and he contends the state courts lack jurisdiction over issues that are raised under the United States Constitution. Dkt. 7, at 5-12.

         Petitioner states that he did not raise these issues raised in his petition on direct 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 [sic] jurisdictional or statutory governing limits.” Id., at 7-13. He also states he has not raised the grounds raised in the instant petition in a post-conviction motion or petition for habeas corpus in a state trial court. 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 over federal matters.”[2] Id., at 12.

         By order dated August 27, 2019, the Court noted that petitioner's federal habeas petition- on its face-was subject to dismissal due to a failure to exhaust state court remedies as petitioner specifically indicated he had not raised the grounds raised in his petition to the state courts. Dkt. 8. The Court also noted that the petition indicated petitioner may have exhausted other claims but that those claims were not raised as grounds in his federal habeas petition. Id. 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).

         Accordingly, the Court directed petitioner to either (1) show cause why his petition should not be dismissed without prejudice for failure to exhaust state court remedies or (2) to file an amended petition including his exhausted grounds and either (a) delete his unexhausted grounds from the amended petition if he did not intend to pursue them, or (b) request the Court stay proceedings on his mixed habeas petition to allow him to present his unexhausted claims to the state courts. Id.; See Rhines v. Weber, 544 U.S. 269, 274-79 (2005) (When faced with a mixed petition containing both exhausted and unexhausted claims a federal district court may generally exercise one of three options: (1) dismiss the mixed petition without prejudice to allow the petitioner to present his unexhausted claims to the state court and then return to federal court to file a new habeas petition containing all of the claims; (2) stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court and then return to federal court for review of his perfected petition; or (3) allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims.).

         In response to the Court's order, petitioner filed a document entitled “Motion to Compel Information (Show Cause)” which argues petitioner is not required to exhaust his state judicial remedies and asks the Court “to order Respondent to present the Bill of Indictment by a Grand Jury causing the order to Petitioner's arrest and detainment in accordance with the 5thAmendment[.]” Dkt. 9. Petitioner's response fails to remedy the deficiencies in the petition noted by the Court's order to show cause. Id. He largely re-iterate his jurisdictional arguments and ask 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 requiring 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. 7, at 1-12. 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) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the ...


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