Holmes v. Ferguson

• Court: District Court, W.D. Washington
• Decided: December 4, 2020
• Docket: 3:20-cv-05718
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOEL CHRISTOPHER HOLMES, CASE NO. 3:20-cv-05718-BJR-JRC 11 Petitioner, ORDER FOR SUPPLEMENTAL 12 v. BRIEFING 13 ROBERT FERGUSON, 14 Respondent. 15 16 This matter is before the Court on referral from the District Court and on petitioner’s 17 petition for writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. 11. 18 Respondent asserts that the Court lacks subject matter jurisdiction over the petition 19 because petitioner was not “in custody” within the meaning of 28 U.S.C. § 2254 when he filed 20 the petition. Dkt. 17, at 5. In response, petitioner draws the Court’s attention to his August 23, 21 2018 Thurston County Felony Judgment and Sentence, specifically the sentencing court-imposed 22 requirement that he “comply with Pioneer Human Services counseling and housing rules.” Dkt. 23 18-1, at 8, cited in Dkt. 19. Respondent does not address the significance of this requirement in 24 the Answer (Dkt. 17, at 6–9), and respondent did file a reply to petitioner’s response in 1 opposition to the Answer. Accordingly, the Court finds that additional briefing would be of 2 assistance. 3 Therefore, the Court ORDERS respondent to file supplemental briefing addressing the 4 following issue:

5 Whether the requirement in petitioner’s Thurston County judgment and sentence that petitioner “comply with Pioneer Human Services counseling and housing 6 rules” renders him “in custody” for the purpose of a challenge to his conviction for promoting a suicide attempt, under the principles set forth in Dow v. Circuit Court 7 of First Circuit Through Huddy, 995 F.2d 922 (9th Cir. 1993) and similar cases. See Dkt. 18-1, at 2. 8

9 Respondent’s brief shall not exceed 5 pages, double-spaced, and is due on or before 10 December 18, 2020. Petitioner may—but is not required to—file a response to respondent’s 11 supplemental brief. Petitioner’s brief, if he files one, shall not exceed 5 pages, shall not raise 12 issues other than those identified in this Order and in respondent’s supplemental brief, and shall 13 be filed on or before January 15, 2021. The parties may also attach exhibits or evidence in 14 support of their briefing, if relevant to the issue identified above. 15 The Clerk’s Office shall send a copy of this Order to petitioner and shall renote the 16 Answer (Dkt. 17) for consideration on January 15, 2021. 17 Dated this 4th day of December, 2020. 18

19 A 20 J. Richard Creatura 21 United States Magistrate Judge

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