Bach v. Uttecht

• Court: District Court, W.D. Washington
• Decided: March 3, 2020
• Docket: 3:19-cv-05481
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 DANIEL BENJAMIN BACH, CASE NO. C19-5481 BHS 8 Petitioner, ORDER ADOPTING REPORT 9 v. AND RECOMMENDATION 10 JEFFREY A. UTTECHT et al., 11 Respondents. 12

13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable Theresa L. Fricke, United States Magistrate Judge, Dkt. 15, and 15 Petitioner’s objections to the R&R, Dkt. 16. 16 On May 23, 2019, Petitioner filed a proposed petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. Dkt. 1.1 Petitioner challenges his incarceration under a 18 Pierce County Superior Court judgement convicting him of two counts of rape of a child 19 in the first degree. Dkt. 7 (petition for writ of habeas corpus). Petitioner raises four 20

21 1 Petitioner initially brought this action in the Eastern District of Washington, but the file was transferred to this District. See Dkt. 3; see also 28 U.S.C. § 2241(d) (petition for federal habeas relief 22 must be brought in the district where the conviction arose). 1 grounds for relief in his petition, all of which are premised on the allegation that his 2 conviction violated his rights under the Fifth Amendment because he was charged by

3 information, rather than by an indictment issued by a grand jury. Id. 4 On June 20, 2019, Judge Fricke issued an order requiring Petitioner to show cause 5 by July 19, 2019 why his petition should not be dismissed for failure to exhaust state 6 judicial remedies. Dkt. 9 (citing Rule 4 of the Rules Governing Section 2254 Petitions). 7 Petitioner admits he has brought no appeals or collateral attack in state court. Dkt. 7 at 3, 8 4; see also Dkt. 9 at 1 n.1.

9 On June 21, 2019, Petitioner responded to the show cause order by filing a motion 10 to show cause, Dkt. 12, and a motion for petitioner initiated summary judgment, Dkt. 13. 11 On December 29, 2019, Petitioner filed a motion to amend case caption. Dkt. 14. On 12 February 3, 2020, Judge Fricke issued the R&R recommending dismissal of the petition 13 for failure to exhaust state judicial remedies. Dkt. 15.

14 On February 9, 2020, Petitioner filed objections to the R&R. Dkt. 16. 15 The district judge must determine de novo any part of the magistrate judge’s 16 disposition that has been properly objected to. The district judge may accept, reject, or 17 modify the recommended disposition; receive further evidence; or return the matter to the 18 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

19 First, Petitioner contests the well-settled and binding rule requiring him to exhaust 20 his state court remedies before seeking relief in federal court. Dkt. 16 at 1–4; see also 21 Picard v. Connor, 404 U.S. 270, 275 (1971) (“a state prisoner must normally exhaust 22 available state judicial remedies before a federal court will entertain his petition for 1 habeas corpus.”); 28 U.S.C. § 2254(b)(1) (a district court “shall not” grant an application 2 for a writ of habeas corpus unless the prisoner has first “exhausted the remedies

3 available” in state court.). 4 Petitioner contends that the federal court has original jurisdiction over his petition 5 pursuant to 28 U.S.C. § 1343,2 which requires the court to hear the petition before its 6 claims are considered and thereby exhausted in state court. Dkt. 16 at 1–4. Petitioner, 7 however, readily acknowledges that he filed a “Writ of Habeas Corpus pursuant to 28 8 U.S.C. § 2254.” Dkt. 16 at 1; see also Dkt. 7. Consequently, Petitioner fails to persuade

9 the Court that the state exhaustion requirement does not apply in his case. 10 The Court may consider an unexhausted federal habeas petition if there is an 11 absence of state corrective process or where state corrective process would be rendered 12 ineffective. 28 U.S.C. § 2254(b)(1)(B). Petitioner, however, fails to meet this standard. 13 Instead, he simply restates his assertion that Washington State has abridged his rights

14 under the Fifth Amendment and concludes that this alleged violation would make 15 exhaustion in state courts futile. Therefore, the Court agrees with Judge Fricke that 16 Petitioner has failed to fully exhaust his state judicial remedies and this Court must 17 dismiss his petition without prejudice. See Coleman v. Thompson, 501 U.S. 722, 731 18 (1991) (court must dismiss habeas petition if claims are unexhausted).

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21 2 28 U.S.C. § 1343 confers original jurisdiction on the district court to “redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or 22 immunity secured by the Constitution of the United States . . . .” 28 U.S.C. § 1343. 1 Second, Petitioner argues that his procedural default in the state courts is excused 2 by cause and prejudice sufficient to overcome the bar on federal court review of his

3 claims. Id. at 3–16. “Where a defendant has procedurally defaulted a claim by failing to 4 raise it on direct review, the claim may be raised in habeas only if the defendant can first 5 demonstrate either ‘cause’ and actual ‘prejudice’. . . .” United States v. Braswell, 501 6 F.3d 1147, 1149 (9th Cir. 2007) (quoting Bousley v. United States, 523 U.S. 614, 622 7 (1998)). The Court concludes that Petitioner has not shown cause and prejudice excusing 8 his failure to present his claims to the state court such that federal review is proper.

9 Therefore, his objection to the R&R on this basis is denied. 10 Third, Petitioner continues to argue that state courts lack jurisdiction to adjudicate 11 his claim that the manner in which he was charged violates his constitutional right to 12 indictment by a grand jury. Dkt. 16 at 8–34. Section 2254, however, recognizes the 13 jurisdiction of state courts to adjudicate federal constitutional matters. 28 U.S.C.

14 § 2254(d)(1). Regardless, Petitioner’s claim fails on the merits because the Supreme 15 Court has affirmed since 1886 that a state prosecutor does not violate the Due Process 16 Clause of the Fourteenth Amendment by bringing charges based on a criminal 17 information as opposed to an indictment issued by a grand jury. Hurtado v. People of 18 State of California, 110 U.S. 516 (1886).

19 Finally, Petitioner’s assertion that he has a right to indictment by grand jury as a 20 state prisoner that stems from the Privileges and Immunities Clause of the Fourteenth 21 Amendment rather than the Due Process Clause of the Fourteenth Amendment, see Dkt. 22 16 at 6, does nothing to alter the Court’s conclusion that he has failed to exhaust the 1 claims raised in his federal habeas petition. Said another way, whether Petitioner brings 2 his claim of a constitutional violation under the Due Process Clause or the Privileges and

3 Immunities Clause is irrelevant to whether the claim has been exhausted. Consequently, 4 Petitioner’s objection on this basis is also denied. 5 Petitioner lodges numerous other objections that are meritless. 6 Therefore, the Court having considered the R&R, Petitioner’s objections, and the 7 remaining record, does hereby find and order as follows: 8 (1) The R&R is ADOPTED;

9 (2) Petitioner’s federal habeas petition, Dkt. 7, is DISMISSED without 10 prejudice; 11 (3) Petitioner’s other motions, Dkts. 12, 13, 14, are DENIED as moot; 12 (4) A Certificate of Appealability is DENIED; and 13 (5) The Clerk shall enter JUDGMENT and close the case.

14 Dated this 3rd day of March, 2020. A 15 16 BENJAMIN H. SETTLE 17 United States District Judge

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