Armstead v. Speer

• Court: District Court, W.D. Washington
• Decided: December 31, 2024
• Docket: 2:24-cv-02144
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 WENDELL M. ARMSTEAD, JR.,

9 Petitioner, Case No. C24-2144-RAJ-SKV

10 v. REPORT AND RECOMMENDATION 11 SCOTT SPEER,

12 Respondent.

14 I. INTRODUCTION 15 Petitioner Wendell Armstead is a state prisoner who is currently confined at the Stafford 16 Creek Corrections Center in Aberdeen, Washington. He has presented to the Court for filing a 17 petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his confinement pursuant 18 to the judgment and sentence entered in Snohomish County Superior Court case number 07-1- 19 01793-8. See Dkt. 1-1 at 2. Petitioner has previously filed other federal habeas petitions relating 20 to the same judgment. This Court, having reviewed the petition filed in this matter, and 21 Petitioner’s prior petitions, concludes the instant petition is a second or successive petition over 22 which this Court lacks jurisdiction, and it should therefore be dismissed. 23

REPORT AND RECOMMENDATION 1 II. DISCUSSION 2 Petitioner submitted the instant federal habeas petition to the Court for filing on 3 December 26, 2024. See Dkt. 1. As noted above, the petition relates to the judgement and

4 sentence entered in Snohomish County Superior Court case number 07-1-01793-8. See Dkt. 1-1 5 at 2. Petitioner alleges in his petition that he was denied counsel at a critical stage of his criminal 6 proceedings, i.e., his arraignment, and that this alleged deprivation violated his rights under the 7 Sixth and Fourteenth Amendments. See id. at 3-4; Dkts. 1-3, 1-4. 8 The Ninth Circuit has held that “28 U.S.C. § 2254 is the exclusive vehicle for a habeas 9 petition by a state prisoner in custody pursuant to a state court judgment[.]” White v. Lambert, 10 370 F.3d 1002, 1009-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 11 603 F.3d 546 (9th Cir. 2010) (en banc). Petitioner’s petition for writ of habeas corpus is 12 therefore properly construed as one brought pursuant to § 2254. A review of this Court’s records 13 reveals that Petitioner filed a federal habeas petition under § 2254 challenging the same

14 Snohomish County Superior Court judgment and sentence in March 2020. See Armstead v. 15 Haynes, C20-391-MJP, Dkts. 1, 4. The Court dismissed that petition with prejudice in 16 September 2020, upon concluding that the petition was barred under the applicable statute of 17 limitations, 28 U.S.C. § 2244(d). See id., Dkts. 11, 13, 14. Petitioner filed a second federal 18 habeas petition challenging the same Snohomish County judgment and sentence in August 2024, 19 and that petition was dismissed as successive in October 2024. See Armstead v. Bennett, C24- 20 1300-RSL, Dkts. 1, 7, 10. Petitioner recently filed a third habeas petition challenging his 21 Snohomish County judgment and sentence, which remains pending at this time. See Armstead v. 22 Bennett, 24-1994-TL-SKV, Dkt. 4-1. 23

REPORT AND RECOMMENDATION 1 The instant petition is Petitioner’s fourth federal habeas petition challenging the same 2 Snohomish County judgment and sentence. The fact that Petitioner’s initial federal habeas 3 petition was dismissed as time-barred renders the instant petition a second or successive one for

4 purposes of 28 U.S.C. § 2244(b). Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (holding 5 that dismissal for failure to comply with one-year statute of limitations renders subsequent 6 petitions challenging the same conviction or sentence “second or successive” under § 2244(b)); 7 Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029 (C.D. Cal. 2003) (same). This Court is without 8 jurisdiction to consider a successive petition until the Ninth Circuit Court of Appeals has 9 authorized its filing. See 28 U.S.C. § 2244(b)(3)(A). Petitioner provides no evidence that the 10 Ninth Circuit has authorized the filing of the instant petition. Accordingly, this Court lacks 11 jurisdiction over the petition. 12 III. CERTIFICATE OF APPEALABILITY 13 A petitioner seeking post-conviction relief under § 2254 may appeal a district court’s

14 dismissal of his federal habeas petition only after obtaining a certificate of appealability from a 15 district or circuit judge. A certificate of appealability may issue only where a petitioner has 16 made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). 17 A petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with 18 the district court’s resolution of his constitutional claims or that jurists could conclude the issues 19 presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 20 U.S. 322, 327 (2003). Under this standard, this Court concludes Petitioner is not entitled to a 21 certificate of appealability in this matter. 22 23

REPORT AND RECOMMENDATION 1 IV. CONCLUSION 2 Based on the foregoing, this Court recommends that Petitioner’s federal habeas petition 3 (Dkt. 1-1) and this action be dismissed under 28 U.S.C. § 2244(a) for lack of jurisdiction, and

4 that a certificate of appealability be denied. This Court further recommends that Petitioner’s 5 application to proceed in forma pauperis (Dkt. 1), and all motions submitted with his petition 6 (Dkts. 1-5, 1-6, 1-7, 1-8, 1-9) be denied as moot. A proposed Order accompanies this Report and 7 Recommendation. 8 Objections to this Report and Recommendation, if any, should be filed with the Clerk and 9 served upon all parties to this suit not later than fourteen (14) days from the date on which this 10 Report and Recommendation is signed. Failure to file objections within the specified time may 11 affect your right to appeal. Objections should be noted for consideration on the District Judge’s 12 motions calendar fourteen (14) days from the date they are filed. Responses to objections may 13 be filed by the day before the noting date. If no timely objections are filed, the matter will be

14 ready for consideration by the District Judge on January 21, 2025. 15 DATED this 31st day of December, 2024.

17 A S. KATE VAUGHAN 18 United States Magistrate Judge

19 20 21 22 23

REPORT AND RECOMMENDATION