United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable J.
Richard Creatura, United States Magistrate Judge, Dkt. 13,
and Petitioner Clifford Reinbold's
(“Petitioner”) objections to the R&R, Dkt.
13, 2019, Petitioner filed a proposed petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Dkt.
Petitioner challenges his incarceration under a state court
judgement convicting him of two counts of child molestation
in the first degree. Dkt. 12, Ex. 3. Petitioner raised four
grounds for relief in the petition, all of which are premised
on the allegation that his conviction violated his rights
under the Fifth Amendment because he was charged by
information, rather than by an indictment issued by a grand
jury. Dkt. 7. On July 9, 2019, Respondent answered. Dkt. 11.
Respondent argued that Petitioner's claims are
unexhausted because he failed to raise them in state court,
that his claims are now procedurally barred in state court,
and in the alternative, that his claims fail to state a
federal constitutional ground for relief. Id. On
August 26, 2019, Judge Creatura issued the R&R
recommending dismissal of Petitioner's petition for
failure to exhaust state judicial remedies. Dkt. 13.
September 8, 2019, Petitioner filed objections to the
R&R. Dkt. 14. Also on September 8, 2019, Petitioner filed
motions to compel evidence for record of the court, Dkt. 15,
to initiate supplemental jurisdiction, Dkt. 16, and for
petitioner-initiated summary judgment, Dkt. 17. On September
18, 2019, Respondent responded to Petitioner's motions.
Dkt. 18. On September 23, 2019, Petitioner replied. Dkt. 19.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Petitioner contests the well-settled and binding rule
requiring him to exhaust his state court remedies before
seeking relief in federal court. Dkt. 14 at 1-2. Although
Petitioner contends that “exceptional
circumstances” justify his exception from the rule, he
fails to identify any exceptional circumstance demonstrating
that the Court should not apply the exhaustion requirement in
this case. See Id. Moreover, the exhaustion
requirement is “one of the pillars of federal habeas
corpus jurisprudence.” Calderon v. U.S. Dist. Court
for N. Dist. of Cal., 134 F.3d 981, 984 (9th Cir. 1998).
Petitioner's arguments do not persuade the Court to carve
out an exception to this rule. Therefore, Petitioner's
objection to dismissal for failure to exhaust state judicial
remedies is denied.
Petitioner contests the R&R's conclusion that all
four grounds raised in the petition are procedurally
defaulted. Dkt. 14 at 2. The procedural default rule bars
federal courts from considering a claim when it is clear the
state court would hold the claim to be procedurally barred.
Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th
Cir. 2002). Petitioner did not raise any of his claims in
state court, and the R&R found that the state court would
find the claims barred under Washington law if Petitioner
attempted to file them now via a personal restraint petition.
Dkt. 13 at 4.
10.73.090 sets a one-year limitations period for actions
collaterally attacking a judgment of conviction. RCW
10.73.090. Petitioner contends he falls within an exception
to the one-year rule because he demonstrates newfound
constitutional error “through acts of due diligence . .
. .” Dkt. 14 at 2. Although RCW 10.73.100(1) lifts the
limitations period when a defendant discovers new evidence
after acting with reasonable diligence in discovering the
evidence and filing the petition, Petitioner fails to show
that the evidence that underlies his claim-his charging by
information rather than by indictment-is newly discovered.
Additionally, he fails to demonstrate reasonable diligence
because nothing prevented him from presenting this claim in
the state court within the limitations period. Thus,
Petitioner fails to convince the Court that the claims in his
petition are not subject to the procedural default bar.
so, Petitioner argues that his procedural default is excused
by cause and prejudice sufficient to overcome the bar on
federal court review of his claims. Id. at 3-16.
“Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be
raised in habeas only if the defendant can first demonstrate
either ‘cause' and actual ‘prejudice'. .
. .” United States v. Braswell, 501 F.3d 1147,
1149 (9th Cir. 2007) (quoting Bousley v. United
States, 523 U.S. 614, 622 (1998)). Petitioner, however,
does not make a showing of cause or actual prejudice.
Instead, he only repeats his assertion that art. I, § 26
of the Washington Constitution abridges his Fifth Amendment
right to indictment by grand jury and states that this fact
makes his compliance with the procedural default rule
“[impractical]. . . .” Dkt. 14 at 6. Therefore,
his objection to the dismissal of his petition for procedural
default is denied.
Petitioner objects to the R&R's conclusion denying
him an evidentiary hearing. Dkt. 14 at 2-3. Yet Petitioner
fails to persuade the Court that an evidentiary hearing is
needed to resolve his petition. See Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). Therefore, the
objection is denied.
Petitioner objects to the R&R's conclusion denying
him a certificate of appealability. Dkt. 14 at 3. Because
reasonable jurists could not conclude that Petitioner has
made a substantial showing of a denial of a constitutional
right in his petition, see 28 U.S.C. § 2253(c),
his objection is denied.
lodges numerous other objections that are meritless.
Therefore, the Court having considered the R&R,
Petitioner's objections, and the remaining record, does
hereby find and order as follows:
R&R is ADOPTED;
Petitioner's habeas petition, Dkt. 7, is