Allred v. Uttecht

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CHRISTOPHER ALLRED, CASE NO. 19-5687 RJB-TLF 11 Petitioner, ORDER ON REPORT AND 12 v. RECOMMENDATION 13 JEFFREY A. UTTECHT, 14 Respondent. 15

16 THIS MATTER comes before the Court on the Report and Recommendation of U.S. 17 Magistrate Judge Theresa L. Fricke. Dkt. 10. The Court has considered the Report and 18 Recommendation, objections, and the remaining file. 19 In this 28 U.S.C. § 2254 habeas corpus petition, the Petitioner challenges a state court 20 conviction of one count of rape in the second degree, two counts of incest in the first degree, and 21 one count of incest in the second degree and the resulting 240-month sentence. Dkt. 1. The 22 Petitioner filed a direct appeal, State v. Allred, 4 Wash.App.2d 1040 (2018), and the Court of 23 Appeals of Washington, Division Two, affirmed the superior court. On October 31, 2018, the 24 1 Washington Supreme Court denied his petition for review. State v. Allred, 191 Wash.2d 1024 2 (2018). The mandate issued on November 21, 2018. 3 On October 8, 2019, the Report and Recommendation was filed, recommending that this 4 petition be denied without prejudice for failing to exhaust state court remedies on any of the 5 claims. Dkt. 10. It also recommends denial of all motions as moot. Id.

6 “State prisoners seeking a writ of habeas corpus from a federal court must first exhaust 7 their remedies in state court. A petitioner has exhausted his federal claims when he has fully and 8 fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 9 2014)(citing 28 U.S.C. § 2254(b)(1)(A) and O'Sullivan v. Boerckel, 526 U.S. 838, 844–45, 119 10 S.Ct. 1728 (1999)). 11 The Report and Recommendation (Dkt. 10) should be adopted. The Petitioner has not 12 fully presented any of his claims to the state courts. The Petitioner has failed to exhaust his state 13 court remedies as required by 28 U.S.C. § 2254(b)(1)(A). This federal habeas action is 14 premature.

15 Under Rhines v. Weber, 544 U.S. 269, 276 (2005), a district court has discretion to stay a 16 petition with both exhausted and unexhausted claims to allow the petitioner time to present his 17 unexhausted claims to state courts. In the Ninth Circuit, a “district court has the discretion to 18 stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in 19 Rhines.” Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). A stay and abeyance under Rhines is 20 available when: (1) “the petitioner had good cause for his failure to exhaust,” (2) the petitioner’s 21 “unexhausted claims are potentially meritorious,” and (3) “there is no indication that the 22 petitioner engaged in intentionally dilatory litigation tactics.” Rhines, at 278. 23 24 1 Petitioner does not request a stay here. In his objections, the Petitioner maintains that the 2 state courts do not have jurisdiction to decide his claims. Dkt. 11. The Petitioner fails to cite any 3 authority that supports his position. His remaining assertions are without merit and do not 4 provide a basis to reject the Report and Recommendation. Further, there is no showing that a 5 stay, rather than dismissal, is appropriate. There is no showing that the petitioner had good cause

6 for his failure to exhaust. Rhines, at 278. Further, it is unclear whether the “unexhausted claims 7 are potentially meritorious.” Rhines, at 278. While “there is no indication that the petitioner 8 engaged in intentionally dilatory litigation tactics,” Rhines, at 278, there are no other grounds to 9 stay the case and hold it in abeyance rather than dismissing it without prejudice. All pending 10 motions should be denied as moot. 11 Moreover, a certificate of appealability should not issue. As stated in the Report and 12 Recommendation, reasonable jurists could not debate whether, or agree that, the petition should 13 have been resolved in a different manner; the issues raised are not adequate to deserve 14 encouragement to proceed further; and jurists of reason would not find it debatable whether the

15 court was correct in its rulings. Slack v. McDaniel, 529 U.S. 473, 484 (2000). A Certificate of 16 Appealability should be denied. 17 It is ORDERED that: 18 • The Report and Recommendation (Dkt. 10) IS ADOPTED; 19 • This case IS DISMISSED WITHOUT PREJUDICE; 20 • All pending motions ARE DENIED AS MOOT, and 21 • The certificate of appealability IS DENIED. 22 The Clerk is directed to send uncertified copies of this Order to Judge Christel, all 23 counsel of record, and to any party appearing pro se at said party’s last known address. 24 1 Dated this 4th day of November, 2019. A 2

3 ROBERT J. BRYAN United States District Judge 4

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