United States District Court, W.D. Washington, Tacoma
ANTHONY D. DIORIO, Petitioner,
JEFFREY A. UTTECHT, Respondent.
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 David
W. Christel, United States Magistrate Judge, Dkt. 15, and
Petitioner Anthony D. Diorio's (“Petitioner”)
objections to the R&R, Dkt. 16.
8, 2019, Petitioner filed a proposed petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. 1.
Petitioner challenges his incarceration under a state court
judgement imposed for his conviction by jury verdict for
attempted rape of a child in the second degree and
communication with a minor for immoral purposes. Dkt. 13, Ex.
1. Petitioner appealed his conviction to the state Court of
Appeals, and that appeal remains pending. Id., Ex.
2; see also http://www.courts.wa.gov/opinions/
(populated with search terms for No. 52684) (last visited
Dec. 12, 2019).
federal habeas petition Petitioner raises four grounds for
relief, 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. 6. On July 22, 2019,
Respondent answered. Dkt. 12. Respondent maintained that the
petition should be dismissed because Petitioner's state
court remedies are unexhausted. Id. On July 25,
2019, Petitioner replied. Dkt. 14.
September 11, 2019, Judge Christel issued the R&R
recommending dismissal of Petitioner's petition for
failure to exhaust state judicial remedies. Dkt. 15. On
September 18, 2019, Petitioner filed objections to the
R&R. Dkt. 16.
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 contends that his conviction violated his right to
equal protection of the law and that federal courts have
original jurisdiction over this claim pursuant to 28 U.S.C.
§ 1343. Dkt. 16 at 1. Petitioner contends that the
district court has a statutory obligation to hear his
petition before its claims are considered by the Washington
courts pursuant to this grant of original jurisdiction.
Id. Petitioner, however, readily acknowledges that
he “submitted a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254.” Id.; see also
Dkt. 1 (proposed petition for writ of habeas corpus), Dkt. 6
(petition for writ of habeas corpus).
Supreme Court has held that “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). Moreover, § 2254(b)(1) provides that a district
court “shall not” grant an application for a writ
of habeas corpus unless the prisoner has first
“exhausted the remedies available” in state
court. 28 U.S.C. § 2254(b)(1). A 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). Consequently, “state
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). In this case, Petitioner's direct appeal is still
pending and the time to file a collateral attack in which he
could present these same claims via a personal restraint
petition has not expired. Therefore, the Court agrees with
Judge Christel that Petitioner has failed to fully exhaust
his state judicial remedies and this Court must dismiss his
petition without prejudice. See Coleman v. Thompson,
501 U.S. 722, 731 (1991) (stating that a federal court must
dismiss a federal habeas petition if its claims are
unexhausted). Accordingly, Petitioner's objection on the
basis that the district court has a “duty” to
hear his claims is denied.
Petitioner argues that he meets a statutory exception to the
exhaustion requirement because “the state has a statute
in place, which expressly forecloses relief on the merits of
petitioner's procedural situation.” Dkt. 16 at 2.
Petitioner does not identify the statute. Id. 28
U.S.C. § 2254(c) provides that “[a]n applicant
shall not be deemed to have exhausted the remedies available
in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to
raise, by any available procedure, the question
presented.” In Washington, criminal defendants have a
statutory right to direct appeal and collateral attack.
See, e.g., RCW Chapter 10.73; see also
Wash. R. App. P. §§ 2.2(a), 5.1, 6.1, 16.3, 16.4.
Because Petitioner has the right to raise the questions he
presents in his federal petition in the state court, and
indeed, is availing himself of that right currently via his
direct appeal, he “shall not be deemed to have
exhausted” his state judicial remedies. Therefore, his
objection on this basis is denied.
Petitioner continues to argue that state courts lack
jurisdiction to adjudicate his claim that the manner in which
he was charged violates his constitutional right to
indictment by a grand jury. Dkt. 16 at 4. Since 1886,
however, the Supreme Court has affirmed that a state
prosecutor does not violate the Due Process Clause of the
Fourteenth Amendment by bringing charges based on a criminal
information as opposed to an indictment issued by a grand
jury. Hurtado v. People of State of California, 110
U.S. 516 (1886). Regardless, Petitioner must exhaust this
claim in the state court before this Court will consider it
in a federal habeas petition.
Petitioner's assertion that he has a right to indictment
by grand jury as a state prisoner that stems from the
Privileges and Immunities Clause of the Fourteenth Amendment
rather than the Due Process Clause of the Fourteenth
Amendment, see Dkt. 16 at 4, does nothing to alter
the Court's conclusion that he has failed to exhaust the
claims raised in his federal habeas petition. Said another
way, whether Petitioner brings his claim of a constitutional
violation under the Due Process Clause or the Privileges and
Immunities Clause is irrelevant to whether the claim has been
exhausted. Consequently, Petitioner's objection on this
basis is also 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 is DISMISSED ...