United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND PETITION AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL
Richard Creatura, United States Magistrate Judge
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.
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,
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.
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.
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.
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).
Failure to Exhaust
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).
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).
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.