1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Oct 01, 2020 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 RICHARD WESLEY BRYAN, No. 4:20-CV-05016-SAB 11 Petitioner, 12 v. ORDER DISMISSING SECOND 13 AMENDED PETITION 14 JEFFREY UTTECHT, WITHOUT PREJUDICE, 15 Respondent. ORDER DENYING 16 ADDENDUM TO PETITION, 17 AND ORDER DENYING 18 MOTION FOR SERVICE 19 20 Before the Court is Petitioner’s Second Amended Petition for Writ of 21 Habeas Corpus Under 28 U.S.C. § 2241, ECF No. 27. Petitioner Richard Wesley 22 Bryan, a prisoner at the Coyote Ridge Corrections Center, is proceeding pro se and 23 in forma pauperis. Respondent has not been served. 24 In addition, Petitioner asks the Court to expedite this action in an Addendum 25 to his Second Amended Petition, ECF No. 28, and requests that the Court instruct 26 the Clerk of Court to serve several named clerks at the Washington State Supreme 27 Court and the Kitsap County Clerk’s Office in his Motion for Service, ECF No. 29. 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 The Court considered these requests without oral argument on the date signed 2 below. 3 SECOND AMENDED PETITION 4 Petitioner brings this habeas action to challenge the alleged violation of his 5 constitutional right to access the courts. He claims employees of the Kitsap County 6 Clerk’s Office violated that right when they failed to properly file and docket his 7 state petition for writ of habeas corpus. ECF No. 27 at 1–2. Petitioner claims that 8 on September 23, 2019, his state habeas corpus petition was filed on the state court 9 dockets of the two underlying cases that the petition challenges. Id. at 21–22. He 10 claims that his state habeas corpus petition “sits in purgatory” due to the actions of 11 the Kitsap County clerks. Id. at 5. Petitioner also contends that the actions of the 12 Kitsap County clerks and the undersigned judicial officer “‘plainly’ show a 13 ‘pattern of practice’” which is “evil in nature.” Id. at 9. 14 Petitioner asserts that he does not challenge the constitutionality of his 15 detention, but instead challenges the actions of the Kitsap County clerks. ECF No. 16 27 at 2. Petitioner states he “has never asked this [habeas] DISTRICT COURT for 17 a ‘writ of mandamus’; has never asked this [habeas] DISTRICT COURT to 18 mandate [any] State/STATE Court/COURT to do [anything].” Id. at 8. He claims 19 the Kitsap County clerks are not the Court, nor are they judicial officers of the 20 court. Id. Petitioner “concedes the fact that a DISTRICT COURT does not have the 21 authority to issue a writ of mandamus on a State Court…” Id. at 10. However, he 22 appears to ask this Court to order the employees of the Kitsap County Clerk’s 23 Office to properly file his initial state petition for writ of habeas corpus with its 24 own case number in state court. Id. at 12. 25 DISCUSSION 26 Although Petitioner insists that he is not seeking a writ of mandamus, the 27 relief he requests is in the nature of mandamus. A writ of mandamus is an extreme 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 remedy that is invoked only in extraordinary situations. See Kerr v. U.S. Dist. 2 Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976). A federal court lacks 3 jurisdiction to issue a writ of mandamus to a state court. Demos v. United States 4 Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161–62 (9th Cir. 1991) 5 (Ninth Circuit concluded petitions were frivolous as a matter of law where the 6 petitioner attempted to obtain writs of mandamus in federal court to compel the 7 state court to take or refrain from some action); See 28 U.S.C. § 1651. Petitioner 8 asserts that this Court has the authority to order the employees of the Kitsap 9 County Clerk’s Office to properly file his state petition for writ of habeas corpus. 10 ECF No. 27 at 12. Petitioner is mistaken. The relief Petitioner requests is in the 11 nature of mandamus and this Court lacks jurisdiction to issue such a writ. 12 Petitioner contends the undersigned judicial officer “knows unequivocally 13 that this sovereign cannot file a § 2254; not until this sovereign is aloud [sic] to 14 prosecute his Initial, state, writ of habeas corpus; exhaust his state remedies; which 15 [the undersigned judicial officer] unequivocally knows that this sovereign can not 16 [sic] do, via, the Clerk’s arbitrary & lawless actions.” ECF No. 27 at 10. 17 Regardless, this Court is without authority to grant Petitioner the relief he requests. 18 In addition, it appears that any future request for federal habeas relief under 19 28 U.S.C. § 2254 would be time-barred. Petitioner provides a copy of a Kitsap 20 County case summary for case number 05-1-01006-0 which shows the state 21 appellate court dismissed his Personal Restraint Petition (“PRP”) on December 8, 22 2014. ECF No. 27 at 38. Petitioner’s state writ of habeas corpus was filed on the 23 same docket nearly five years later, on September 23, 2019. Id. Petitioner also 24 provides a copy of a Kitsap County case summary for case number 06-1-00074-7 25 which shows the state appellate court dismissed his PRP on June 26, 2012. Id. at 26 39. Petitioner’s state writ of habeas corpus was filed on the same docket more than 27 seven years later, on September 23, 2019. Id.. 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a 2 prisoner must seek federal habeas relief within one year after direct review 3 concludes or the time for seeking such review expires. 28 U.S.C. § 2244(d)(1)(A). 4 Even if the Court could conclude that the PRPs challenging the convictions arising 5 in 2005 and 2006 extended the deadline to file a federal habeas corpus petition one 6 year after June 2012 and December 2014, respectively, under 28 U.S.C. 7 §2244(d)(2), the federal limitations period on any federal habeas claims Petitioner 8 might wish to present has long since expired. See Ferguson v. Palmateer, 321 F.3d 9 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the 10 limitations period that has ended before the state petition was filed”). 11 ADDENDUM TO PETITION 12 On September 3, 2020, Petitioner filed an Addendum to Petition 13 (“Addendum”), demanding that the Court expedite this action. ECF No. 28. He 14 asserts that he has “‘plainly’ shown good cause” for a writ of habeas corpus to be 15 awarded. Id. at 1. For the reasons set forth in this Order, Petitioner has failed to 16 demonstrate that his Second Amended Petition should be served on Respondent. 17 Therefore, Petitioner’s Addendum is DENIED. 18 MOTION FOR SERVICE 19 Also on September 3, 2020, Petitioner filed a Motion for Service, asking this 20 Court to instruct the Clerk of Court to serve the Second Amended Petition on 21 several employees of the Washington State Supreme Court and the Kitsap County 22 Clerk’s Office. ECF No. 29. For the reasons set forth in this Order, Petitioner has 23 failed to demonstrate that his Second Amended Petition should be served on 24 Respondents. Therefore, Petitioner’s Motion for Service is DENIED. 25 Accordingly, IT IS HEREBY ORDERED: 26 1. Petitioner’s Addendum to Petition, ECF No. 28, is DENIED. 27 2. Petitioner’s Motion for Service, ECF No. 29, is DENIED.
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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Oct 01, 2020 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 RICHARD WESLEY BRYAN, No. 4:20-CV-05016-SAB 11 Petitioner, 12 v. ORDER DISMISSING SECOND 13 AMENDED PETITION 14 JEFFREY UTTECHT, WITHOUT PREJUDICE, 15 Respondent. ORDER DENYING 16 ADDENDUM TO PETITION, 17 AND ORDER DENYING 18 MOTION FOR SERVICE 19 20 Before the Court is Petitioner’s Second Amended Petition for Writ of 21 Habeas Corpus Under 28 U.S.C. § 2241, ECF No. 27. Petitioner Richard Wesley 22 Bryan, a prisoner at the Coyote Ridge Corrections Center, is proceeding pro se and 23 in forma pauperis. Respondent has not been served. 24 In addition, Petitioner asks the Court to expedite this action in an Addendum 25 to his Second Amended Petition, ECF No. 28, and requests that the Court instruct 26 the Clerk of Court to serve several named clerks at the Washington State Supreme 27 Court and the Kitsap County Clerk’s Office in his Motion for Service, ECF No. 29. 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 The Court considered these requests without oral argument on the date signed 2 below. 3 SECOND AMENDED PETITION 4 Petitioner brings this habeas action to challenge the alleged violation of his 5 constitutional right to access the courts. He claims employees of the Kitsap County 6 Clerk’s Office violated that right when they failed to properly file and docket his 7 state petition for writ of habeas corpus. ECF No. 27 at 1–2. Petitioner claims that 8 on September 23, 2019, his state habeas corpus petition was filed on the state court 9 dockets of the two underlying cases that the petition challenges. Id. at 21–22. He 10 claims that his state habeas corpus petition “sits in purgatory” due to the actions of 11 the Kitsap County clerks. Id. at 5. Petitioner also contends that the actions of the 12 Kitsap County clerks and the undersigned judicial officer “‘plainly’ show a 13 ‘pattern of practice’” which is “evil in nature.” Id. at 9. 14 Petitioner asserts that he does not challenge the constitutionality of his 15 detention, but instead challenges the actions of the Kitsap County clerks. ECF No. 16 27 at 2. Petitioner states he “has never asked this [habeas] DISTRICT COURT for 17 a ‘writ of mandamus’; has never asked this [habeas] DISTRICT COURT to 18 mandate [any] State/STATE Court/COURT to do [anything].” Id. at 8. He claims 19 the Kitsap County clerks are not the Court, nor are they judicial officers of the 20 court. Id. Petitioner “concedes the fact that a DISTRICT COURT does not have the 21 authority to issue a writ of mandamus on a State Court…” Id. at 10. However, he 22 appears to ask this Court to order the employees of the Kitsap County Clerk’s 23 Office to properly file his initial state petition for writ of habeas corpus with its 24 own case number in state court. Id. at 12. 25 DISCUSSION 26 Although Petitioner insists that he is not seeking a writ of mandamus, the 27 relief he requests is in the nature of mandamus. A writ of mandamus is an extreme 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 remedy that is invoked only in extraordinary situations. See Kerr v. U.S. Dist. 2 Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976). A federal court lacks 3 jurisdiction to issue a writ of mandamus to a state court. Demos v. United States 4 Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161–62 (9th Cir. 1991) 5 (Ninth Circuit concluded petitions were frivolous as a matter of law where the 6 petitioner attempted to obtain writs of mandamus in federal court to compel the 7 state court to take or refrain from some action); See 28 U.S.C. § 1651. Petitioner 8 asserts that this Court has the authority to order the employees of the Kitsap 9 County Clerk’s Office to properly file his state petition for writ of habeas corpus. 10 ECF No. 27 at 12. Petitioner is mistaken. The relief Petitioner requests is in the 11 nature of mandamus and this Court lacks jurisdiction to issue such a writ. 12 Petitioner contends the undersigned judicial officer “knows unequivocally 13 that this sovereign cannot file a § 2254; not until this sovereign is aloud [sic] to 14 prosecute his Initial, state, writ of habeas corpus; exhaust his state remedies; which 15 [the undersigned judicial officer] unequivocally knows that this sovereign can not 16 [sic] do, via, the Clerk’s arbitrary & lawless actions.” ECF No. 27 at 10. 17 Regardless, this Court is without authority to grant Petitioner the relief he requests. 18 In addition, it appears that any future request for federal habeas relief under 19 28 U.S.C. § 2254 would be time-barred. Petitioner provides a copy of a Kitsap 20 County case summary for case number 05-1-01006-0 which shows the state 21 appellate court dismissed his Personal Restraint Petition (“PRP”) on December 8, 22 2014. ECF No. 27 at 38. Petitioner’s state writ of habeas corpus was filed on the 23 same docket nearly five years later, on September 23, 2019. Id. Petitioner also 24 provides a copy of a Kitsap County case summary for case number 06-1-00074-7 25 which shows the state appellate court dismissed his PRP on June 26, 2012. Id. at 26 39. Petitioner’s state writ of habeas corpus was filed on the same docket more than 27 seven years later, on September 23, 2019. Id.. 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a 2 prisoner must seek federal habeas relief within one year after direct review 3 concludes or the time for seeking such review expires. 28 U.S.C. § 2244(d)(1)(A). 4 Even if the Court could conclude that the PRPs challenging the convictions arising 5 in 2005 and 2006 extended the deadline to file a federal habeas corpus petition one 6 year after June 2012 and December 2014, respectively, under 28 U.S.C. 7 §2244(d)(2), the federal limitations period on any federal habeas claims Petitioner 8 might wish to present has long since expired. See Ferguson v. Palmateer, 321 F.3d 9 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the 10 limitations period that has ended before the state petition was filed”). 11 ADDENDUM TO PETITION 12 On September 3, 2020, Petitioner filed an Addendum to Petition 13 (“Addendum”), demanding that the Court expedite this action. ECF No. 28. He 14 asserts that he has “‘plainly’ shown good cause” for a writ of habeas corpus to be 15 awarded. Id. at 1. For the reasons set forth in this Order, Petitioner has failed to 16 demonstrate that his Second Amended Petition should be served on Respondent. 17 Therefore, Petitioner’s Addendum is DENIED. 18 MOTION FOR SERVICE 19 Also on September 3, 2020, Petitioner filed a Motion for Service, asking this 20 Court to instruct the Clerk of Court to serve the Second Amended Petition on 21 several employees of the Washington State Supreme Court and the Kitsap County 22 Clerk’s Office. ECF No. 29. For the reasons set forth in this Order, Petitioner has 23 failed to demonstrate that his Second Amended Petition should be served on 24 Respondents. Therefore, Petitioner’s Motion for Service is DENIED. 25 Accordingly, IT IS HEREBY ORDERED: 26 1. Petitioner’s Addendum to Petition, ECF No. 28, is DENIED. 27 2. Petitioner’s Motion for Service, ECF No. 29, is DENIED. 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT 1 After careful review of the record, the Court finds that it lacks jurisdiction to order relief in the nature of mandamus, as requested by Petitioner. Therefore, IT IS ORDERED the habeas corpus petition is DISMISSED without prejudice. The Clerk of Court is directed to enter this Order, forward a copy to Petitioner, and 5|| CLOSE the file. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability is therefore DENIED. 9 DATED this Ist day of October 2020. 10 11 12 ‘ 13 foo £ 7 i. ai. 14 Stanley A. Bastian 15 Chief United States District Judge 16 17 18 19 20 21 22) 23 24 25 26 27 28 ORDER DISMISSING SECOND AMENDED PETITION WITHOUT PREJUDICE, ORDER DENYING ADDENDUM TO PETITION, AND