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Westfall v. State

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

November 18, 2019



          J. Richard Creatura, United States Magistrate Judge

         The District Court has referred this matter to United States Magistrate Judge J. Richard Creatura as authorized by 28 U.S.C. § 636(b)(1)(A) and (B) and local Magistrate Judge Rules MJR3 and MJR4. This matter is before the Court on a petition for writ of habeas corpus under 28 U.S.C. § 2241. Dkt. 9, at 1.

         Because petitioner states that he has not filed any motion or otherwise sought state court review of the issues raised in his petition and because his grounds would require this Court to interfere in a pending State criminal proceeding, doctrines of exhaustion and abstention bar the Court from considering petitioner's claims. Petitioner also fails to show that the appointment of counsel is appropriate at this early stage. Therefore, the Court denies without prejudice petitioner's motion for the appointment of counsel and orders petitioner to adequately address the issues herein or file an amended petition on or before December 13, 2019.


         Petitioner, who proceeds pro se and is incarcerated at Lewis County Jail, states that he is a pretrial detainee (Dkt. 9, at 1) seeking dismissal of his charges of possession of a stolen vehicle and a controlled substance. Dkt. 1-1, at 7. He also requests the return of seized property. Dkt. 1-1, at 7. Petitioner's grounds for relief are “due process” and “incarceration and seizure of property without determining guilt.” Dkt 9, at 5.

         Regarding his pending charges, petitioner states that on March 1, 2019, he was arrested and taken into custody at Lewis County Jail. Dkt. 1-1, at 9. After being “bailed out” on the Lewis County charges and released from Lewis County Jail, petitioner was taken into custody in Thurston County “on a separate matter.” Dkt. 1-1, at 9. Petitioner states that although “bail was granted” on the Thurston County charges, he was not released from Thurston County but was transferred back to Lewis County on a failure to appear charge. Dkt. 1-1, at 9. Petitioner alleges that he was not at fault for the alleged failure to appear, as he was “held in the custody of [Thurston County], who was in frequent contact with Lewis County [and] should have been fully aware of the petitioner['s] whereabouts.” Dkt. 1-1, at 9. Petitioner also alleges that “the prosecution” falsified reports that petitioner expressed an intent to flee prosecution and/or commit new crimes upon release. Dkt. 1-1, at 9. Further, petitioner states that he is being improperly held without bail. See Dkt. 1-1, at 9.

         Petitioner states that he has not sought any type of review of his claims other than by writ of habeas corpus in this Court. See Dkt. 1-1, at 5.


         The matter is now before the Court on preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases; see also28 U.S.C. § 2243 (Rules Governing Section 2254 cases may also be applied to habeas corpus actions filed under § 2241).

         I. Failure to Exhaust

         “[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).

         A habeas petition under § 2241 “challenges the execution of a criminal sentence on grounds that a prisoner ‘is in custody in violation of the Constitution or laws or treaties of the United States.'” Benny v. U.S. Parole Commission, 295 F.3d 977, 988 (9th Cir. 2002) (quoting 28 U.S.C. § 2241(c)(3)). Although 28 U.S.C. § 2241(c)(3) does not mandate an exhaustion requirement, the Ninth Circuit Court of Appeals has held that exhaustion is necessary as a matter of comity unless special circumstances warrant federal intervention prior to a state criminal trial. Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980).

         Here, petitioner fails to show that he exhausted state court remedies by presenting federal constitutional or statutory claims to the Washington state trial and appellate courts in the ongoing criminal proceedings against him. Petitioner has also not shown that special circumstances warrant federal intervention in this case. Therefore, petitioner must show cause why this case should not be dismissed for failure to exhaust state remedies.

         II. Young ...

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