1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Dec 31, 2025 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 CURTIS B. FISHER, No. 1:25-cv-03059-SAB 11 Petitioner, 12 v. ORDER DISMISSING HABEAS 13 CORPUS PETITION 14 ROB JACKSON, 15 Respondent. 16 17 Petitioner Curtis B. Fisher, a prisoner currently housed at the Washington 18 State Penitentiary, filed a pro se Petition for Writ of Habeas Corpus by a Person in 19 State Custody pursuant to 28 U.S.C. § 2254 on May 5, 2025. ECF No. 1. He paid 20 the $5.00 filing fee on May 20, 2025. 21 HABEAS PETITION 22 Petitioner challenges his 1979 Yakima County sentence for one count of 23 second-degree murder after entering into a plea agreement. ECF No. 1 at 1–2. He 24 is currently serving a sentence of “not more than life[,]” which he received as a 25 juvenile in adult court. Id. at 1; ECF No. 1-1 at 8, 11. In 1992, Petitioner 26 unsuccessfully pursued in this District Court a federal habeas challenge to his 1979 27 sentence. See Fisher v. Bail, No. 2:92-CV-00295-CI. On February 8, 1993, the 28 District Court dismissed with prejudice Petitioner’s federal habeas claims one 1 through five, and dismissed without prejudice his sixth federal habeas claim as 2 unexhausted but not procedurally barred. Fisher v. Bail, No. 2:92-CV-00295-CI, 3 ECF No. 26. 4 On May 19, 2025, this Court transferred the Habeas Petition to the U. S. 5 Court of Appeals for the Ninth Circuit (“Ninth Circuit”), on the grounds that it 6 appeared to be a second or successive petition. ECF No. 3. On October 7, 2025, the 7 Ninth Circuit denied Petitioner’s application for authorization to file a second or 8 successive habeas petition in the district court “[i]nsofar as the applicant’s claims 9 challenge his underlying conviction and sentence[.]” ECF No. 6 at 1. 10 However, the Ninth Circuit transferred the Petition back to this Court, 11 finding that “[i]nsofar as the applicant’s claims challenge the applicant’s 12 resentencing proceedings, the application is unnecessary.” ECF No. 6 at 2; citing 13 Brown v. Atchley, 76 F.4th 862, 872 (9th Cir. 2023) (holding that claims raised in 14 federal habeas petition with regard to resentencing issues did not become ripe until 15 petitioner’s application for resentencing was denied). The Ninth Circuit instructed 16 this Court to reopen this action and ordered the Petition to be deemed filed in the 17 District Court on May 5, 2025, the date Petitioner originally filed his Petition in 18 this Court. ECF No. 6 at 2. 19 RESENTENCING 20 Petitioner states that on November 25, 2020, after a change in the law, he 21 filed a CrR 7.8 Motion challenging the constitutionality of his sentence. ECF No. 1 22 at 2. He asserts that on June 28, 2021, the Yakima County Superior Court granted 23 his motion for a re-sentencing hearing, finding that his current sentence was 24 unconstitutional and invalid on its face. Id. Petitioner states the State appealed the 25 order granting his motion for re-sentencing, and on June 11, 2024, the Washington 26 State Court of Appeals, Division III, granted the State’s appeal and reversed the 27 decision granting a re-sentencing hearing. Id. at 3. 28 Petitioner states he filed a Petition for Discretionary Review in the 1 Washington State Supreme Court on July 5, 2024. ECF No. 1 at 3. He asserts the 2 Washington State Supreme Court denied his Petition for Discretionary Review on 3 November 6, 2024. Id. Petitioner has attached his Petition for Discretionary 4 Review to his federal habeas Petition. ECF No. 1-1. 5 As grounds for federal habeas relief, Petitioner claims: (1) his sentence 6 constitutes cruel and unusual punishment under the Eighth Amendment and the 7 Washington State Constitution; and (2) he was denied equal protection of the law 8 in violation of the Fourteenth Amendment and the Washington State Constitution. 9 ECF No. 1 at 4. 10 EXHAUSTION REQUIREMENT 11 Before a federal court will consider the merits of a writ of habeas corpus 12 pursuant to 28 U.S.C. § 2254, the petitioner must demonstrate that each claim in 13 the petition has been presented for resolution by the state supreme court. See 14 O’Sullivan v. Boerkel, 526 U.S. 838, 845 (1999). To fully exhaust a claim, a 15 petitioner needs to apprise the state courts that he is making a claim under the U.S. 16 Constitution by describing both the operative facts and the federal legal theory on 17 which his claim is based in order to allow the state courts a fair opportunity to 18 apply controlling legal principles to the facts bearing upon his constitutional claim. 19 See Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). 20 The exhaustion doctrine requires a petitioner to have fully and fairly 21 presented each federal habeas claim to the highest state court. Baldwin v. 22 Reese, 541 U.S. 27, 29 (2004); Picard v. Connor, 404 U.S. 270, 275 (1971). A 23 petitioner that raises a state law claim which is merely similar to a federal 24 claim fails to meet the fair presentation requirement. Duncan v. Henry, 513 U.S. 25 364, 366 (1995) (state claim based on state evidence rule admitting inflammatory 26 and irrelevant testimony did not alert state court that petitioner was denied due 27 process in violation of the Fourteenth Amendment). Moreover, it is not enough that 28 all the facts necessary to support the federal claim were before the state courts or 1 that a somewhat similar state law claim was made. Anderson v. Harless, 459 U.S. 2 4, 6 (1982) (argument that jury instructions contravened holding in state case 3 insufficient to show state court was apprised of federal constitutional violation). 4 Mere “general appeals to broad constitutional principles, such as due 5 process, equal protection, and the right to a fair trial,” do not establish exhaustion. 6 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citation omitted). “When a 7 petitioner does not label his claim as federal, the mere citation to a state court case 8 that engages in both a state and federal constitutional analysis does not suffice to 9 exhaust the federal claim.” Field v. Waddington, 401 F.3d 1018, 1022 (9th Cir. 10 2005) citing Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004) (“For a 11 federal issue to be presented by the citation of a state decision dealing with both 12 state and federal issues relevant to the claim, the citation must be accompanied by 13 some clear indication that the case involves federal issues.”). 14 In the Ninth Circuit, a petitioner must explicitly alert the state court that he 15 or she is making a federal constitutional claim. Galvan v. Alaska Dep’t of 16 Corr., 397 F3d 1198, 1204 (9th Cir. 2005) (“If a party wants a state court to decide 17 whether she was deprived of a federal constitutional right, she has to say so. It has 18 to be clear from the petition filed at each level in the state court system that the 19 petitioner is claiming the violation of the federal constitution that the petitioner 20 subsequently claims in the federal habeas petition.”).
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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Dec 31, 2025 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 CURTIS B. FISHER, No. 1:25-cv-03059-SAB 11 Petitioner, 12 v. ORDER DISMISSING HABEAS 13 CORPUS PETITION 14 ROB JACKSON, 15 Respondent. 16 17 Petitioner Curtis B. Fisher, a prisoner currently housed at the Washington 18 State Penitentiary, filed a pro se Petition for Writ of Habeas Corpus by a Person in 19 State Custody pursuant to 28 U.S.C. § 2254 on May 5, 2025. ECF No. 1. He paid 20 the $5.00 filing fee on May 20, 2025. 21 HABEAS PETITION 22 Petitioner challenges his 1979 Yakima County sentence for one count of 23 second-degree murder after entering into a plea agreement. ECF No. 1 at 1–2. He 24 is currently serving a sentence of “not more than life[,]” which he received as a 25 juvenile in adult court. Id. at 1; ECF No. 1-1 at 8, 11. In 1992, Petitioner 26 unsuccessfully pursued in this District Court a federal habeas challenge to his 1979 27 sentence. See Fisher v. Bail, No. 2:92-CV-00295-CI. On February 8, 1993, the 28 District Court dismissed with prejudice Petitioner’s federal habeas claims one 1 through five, and dismissed without prejudice his sixth federal habeas claim as 2 unexhausted but not procedurally barred. Fisher v. Bail, No. 2:92-CV-00295-CI, 3 ECF No. 26. 4 On May 19, 2025, this Court transferred the Habeas Petition to the U. S. 5 Court of Appeals for the Ninth Circuit (“Ninth Circuit”), on the grounds that it 6 appeared to be a second or successive petition. ECF No. 3. On October 7, 2025, the 7 Ninth Circuit denied Petitioner’s application for authorization to file a second or 8 successive habeas petition in the district court “[i]nsofar as the applicant’s claims 9 challenge his underlying conviction and sentence[.]” ECF No. 6 at 1. 10 However, the Ninth Circuit transferred the Petition back to this Court, 11 finding that “[i]nsofar as the applicant’s claims challenge the applicant’s 12 resentencing proceedings, the application is unnecessary.” ECF No. 6 at 2; citing 13 Brown v. Atchley, 76 F.4th 862, 872 (9th Cir. 2023) (holding that claims raised in 14 federal habeas petition with regard to resentencing issues did not become ripe until 15 petitioner’s application for resentencing was denied). The Ninth Circuit instructed 16 this Court to reopen this action and ordered the Petition to be deemed filed in the 17 District Court on May 5, 2025, the date Petitioner originally filed his Petition in 18 this Court. ECF No. 6 at 2. 19 RESENTENCING 20 Petitioner states that on November 25, 2020, after a change in the law, he 21 filed a CrR 7.8 Motion challenging the constitutionality of his sentence. ECF No. 1 22 at 2. He asserts that on June 28, 2021, the Yakima County Superior Court granted 23 his motion for a re-sentencing hearing, finding that his current sentence was 24 unconstitutional and invalid on its face. Id. Petitioner states the State appealed the 25 order granting his motion for re-sentencing, and on June 11, 2024, the Washington 26 State Court of Appeals, Division III, granted the State’s appeal and reversed the 27 decision granting a re-sentencing hearing. Id. at 3. 28 Petitioner states he filed a Petition for Discretionary Review in the 1 Washington State Supreme Court on July 5, 2024. ECF No. 1 at 3. He asserts the 2 Washington State Supreme Court denied his Petition for Discretionary Review on 3 November 6, 2024. Id. Petitioner has attached his Petition for Discretionary 4 Review to his federal habeas Petition. ECF No. 1-1. 5 As grounds for federal habeas relief, Petitioner claims: (1) his sentence 6 constitutes cruel and unusual punishment under the Eighth Amendment and the 7 Washington State Constitution; and (2) he was denied equal protection of the law 8 in violation of the Fourteenth Amendment and the Washington State Constitution. 9 ECF No. 1 at 4. 10 EXHAUSTION REQUIREMENT 11 Before a federal court will consider the merits of a writ of habeas corpus 12 pursuant to 28 U.S.C. § 2254, the petitioner must demonstrate that each claim in 13 the petition has been presented for resolution by the state supreme court. See 14 O’Sullivan v. Boerkel, 526 U.S. 838, 845 (1999). To fully exhaust a claim, a 15 petitioner needs to apprise the state courts that he is making a claim under the U.S. 16 Constitution by describing both the operative facts and the federal legal theory on 17 which his claim is based in order to allow the state courts a fair opportunity to 18 apply controlling legal principles to the facts bearing upon his constitutional claim. 19 See Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). 20 The exhaustion doctrine requires a petitioner to have fully and fairly 21 presented each federal habeas claim to the highest state court. Baldwin v. 22 Reese, 541 U.S. 27, 29 (2004); Picard v. Connor, 404 U.S. 270, 275 (1971). A 23 petitioner that raises a state law claim which is merely similar to a federal 24 claim fails to meet the fair presentation requirement. Duncan v. Henry, 513 U.S. 25 364, 366 (1995) (state claim based on state evidence rule admitting inflammatory 26 and irrelevant testimony did not alert state court that petitioner was denied due 27 process in violation of the Fourteenth Amendment). Moreover, it is not enough that 28 all the facts necessary to support the federal claim were before the state courts or 1 that a somewhat similar state law claim was made. Anderson v. Harless, 459 U.S. 2 4, 6 (1982) (argument that jury instructions contravened holding in state case 3 insufficient to show state court was apprised of federal constitutional violation). 4 Mere “general appeals to broad constitutional principles, such as due 5 process, equal protection, and the right to a fair trial,” do not establish exhaustion. 6 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citation omitted). “When a 7 petitioner does not label his claim as federal, the mere citation to a state court case 8 that engages in both a state and federal constitutional analysis does not suffice to 9 exhaust the federal claim.” Field v. Waddington, 401 F.3d 1018, 1022 (9th Cir. 10 2005) citing Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004) (“For a 11 federal issue to be presented by the citation of a state decision dealing with both 12 state and federal issues relevant to the claim, the citation must be accompanied by 13 some clear indication that the case involves federal issues.”). 14 In the Ninth Circuit, a petitioner must explicitly alert the state court that he 15 or she is making a federal constitutional claim. Galvan v. Alaska Dep’t of 16 Corr., 397 F3d 1198, 1204 (9th Cir. 2005) (“If a party wants a state court to decide 17 whether she was deprived of a federal constitutional right, she has to say so. It has 18 to be clear from the petition filed at each level in the state court system that the 19 petitioner is claiming the violation of the federal constitution that the petitioner 20 subsequently claims in the federal habeas petition.”). In sum, unless a petitioner 21 presented his or her federal habeas claims fully and fairly to the highest state court, 22 the federal court is without jurisdiction to consider federal habeas claims due to a 23 failure to exhaust. See 28 U.S.C. § 2254(b)(1). 24 On November 6, 2025, in an Order to Show Cause, this Court noted that 25 Petitioner appears to have exhausted only one of the claims set forth in his habeas 26 Petition: his claim that his sentence violates Article 1, Section 14 of the 27 Washington State Constitution, which prohibits grossly disproportionate 28 punishment. ECF No. 9. The Court stated it did not appear that Petitioner had 1 argued to the state’s highest court that his sentence violates the Eighth Amendment 2 or the federal or state equal protection clauses. Id. The Court directed Petitioner to 3 show cause why this action should not be dismissed for failure to exhaust state 4 court remedies. Id. at 4–5. 5 On November 24, 2025, Petitioner filed a response to the Court’s Order to 6 Show Cause. ECF No. 12. In his response, Petitioner appears to concede that he 7 has not presented his Fourteenth Amendment or state constitution equal protection 8 claims to the state courts for review. Id. at 2–3 (“Petitioner in fully exhausting his 9 claim, had continually and repeatedly made the same argument at ever[y] state 10 level in the State Court…with the sole exception of the 14th Amend. Claim for the 11 violation of the Equal Protection Clause petitioner raised in the Writ of Habeas 12 Corpus currently before the Court for consideration, which had not been ripe for 13 review until after the State Supreme Court denied petitioners Motion for 14 Discretionary Review.”). Further, Petitioner attached his Petition for Discretionary 15 Review to his habeas Petition, which shows he did not raise a federal or state equal 16 protection argument before the Washington State Supreme Court. ECF No. 1-1 at 17 2–31. 18 As to his Eighth Amendment claim, Petitioner states in his response to the 19 Order to Show Cause, “To the extent of whether petitioner had or had not argued 20 the violation of the Eighth Amendment in his Motion for Discretionary Review to 21 the State Supreme Court, petitioner should not have had to specifically do so.” 22 ECF No. 12 at 3. Petitioner asserts the Washington State Supreme Court, in 23 reviewing his Petition for Discretionary Review, had the benefit of all prior 24 proceedings in his case, and therefore, “the State Supreme Court well knew, or at 25 the very least, should have known if they’d done their homework, the full extent of 26 petitioners [sic] claims.” Id. Petitioner also claims, “in denying petitioners [sic] 27 Motion for Discretionary Review, which would have offered petitioner the 28 opportunity for oral arguments befor [sic] ethe [sic] Justice’s, [sic] the Court 1 denied petitioner full opportunity to raise all his claims before them, as argued in 2 the prior proceedings of the lower courts.” Id. Petitioner asserts he should not be 3 penalized because the state’s highest court “denied him review, and the 4 opportunity to argue all his claims before them.” Id. Because Petitioner failed to 5 fully and fairly present the federal issues that are now before this Court, he has 6 failed to properly exhaust his federal claims in the state courts. 7 Moreover, federal habeas corpus relief may be granted “only on the ground 8 that [the petitioner] is in custody in violation of the Constitution or laws or treaties 9 of the United States.” 28 U.S.C. § 2254(a). With respect to his only exhausted 10 claim–that his sentence violates Article 1, Section 14 of the Washington State 11 Constitution–Petitioner has failed to state a cognizable claim under § 2254(a). “[I]t 12 is not the province of a federal habeas corpus court to reexamine state-court 13 determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 14 (1991). The Ninth Circuit has repeatedly held that matters relating to sentencing 15 generally are governed by state law and do not raise a federal constitutional 16 question. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) 17 (considering argument that sentencing judge violated state law and finding 18 “violations of state law are not cognizable on federal habeas review”); Souch v. 19 Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (state court’s alleged misapplication of 20 state sentencing law cannot form the basis of a federal habeas claim). 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS ORDERED: 1. The Petition, ECF No. 1, is DISMISSED. 3 IT ISSO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, forward copies to Petitioner, and close the file. The Court further 5|| certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision coul 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). 8 DATED this 31st day of December 2025.
12 Stan Bastian Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28