1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 SCOTT WESLEY HUMPHREYS, Case No. 3:22-cv-05240-JLR-TLF 7 Petitioner, v. ORDER TO SHOW CAUSE OR TO 8 AMEND COWLITZ COUNTY CLERKS, et al., 9 Respondent. 10
11 This matter is before the Court upon petitioner’s filing of a proposed petition for 12 writ of habeas corpus. Dkt. 9. Having screened the petition as required by the Rules 13 Governing § 2254 Cases (“Section 2254 Rules”), the Court notes deficiencies in the 14 petition and declines to order respondent to file an answer at this time. On or before 15 September 6, 2022, petitioner must file an amended petition correcting the deficiencies 16 identified in this Order or show cause why his petition should not be dismissed. Failure 17 to do so may result in the Court recommending dismissal without prejudice.1 18 I. BACKGROUND 19 Petitioner initiated this matter on April 7, 2022 by filing a proposed memorandum 20 of points and authorities and an application to proceed IFP; however, petitioner did not 21 file a petition for habeas corpus. Dkt. 1. The Court directed petitioner to file a petition for 22
23 1 Petitioner has also filed a motion to proceed in forma pauperis (“IFP”). Dkt. 7. Because the proposed petition does not state any grounds for relief, the Court defers consideration of petitioner’s IFP motion 24 until an amended petition is filed. 1 habeas corpus pursuant to 28. U.S.C. § 2254, noting that petitioner’s memorandum did 2 not meet the requirements for a petition. Dkt. 8. 3 On May 10, 2022, petitioner filed a proposed petition. Dkt. 9. However, the 4 proposed petition does not set forth the grounds for relief as required by Rule 2 of the
5 Section 2254 Rules. Furthermore, the petition may be untimely, and it appears it would 6 be the second or successive to petitioner’s previously filed petition. See Humphreys v. 7 Haynes, No. 3:20-cv-05426 BJR (the “First Petition”). And, the petition does not include 8 sufficient information for the Court to evaluate whether petitioner has exhausted his 9 state court remedies. 10 Petitioner subsequently filed two largely repetitive documents; these submissions 11 attach additional copies of the proposed petition and its exhibits, as well as copies of 12 case law and what appear to be documents from petitioner’s appeal of the dismissal of 13 his First Petition. Dkts. 10, 11. Yet these additional filings do not address the defects 14 identified in the Court’s order to show cause (Dkt. 8).
15 II. DISCUSSION 16 Under Rule 4 of the Section 2254 Rules, the Court is required to perform a 17 preliminary review of a habeas petition. The Court should dismiss a habeas petition 18 before the respondent is ordered to file a response, if it “plainly appears from the 19 petition and any attached exhibits that the petitioner is not entitled to relief in the district 20 court.” Id. 21 A. Failure to Specify Grounds for Relief 22 Rule 2 of the Section 2254 Rules requires that a petition substantially follow the 23 Court’s form. Further,
24 1 [t]he petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) 2 state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the 3 petitioner or person authorized to sign it for the petitioner under 28 U.S.C. §2242. 4 Id. at Rule 2(c) (emphasis added). 5 While petitioner used the prescribed form, his petition fails to comply with 6 subsections (1) and (2) because it does not specify the grounds for relief or the facts 7 supporting such grounds. Instead, in the space where the form calls for the statement of 8 the first ground for relief and supporting facts, the petition states only “duplic-ate 9 documents, Sent.” Dkt. 9 at 5. In the space for the second, third and fourth grounds for 10 relief, the petition states only “see above.” Id. at 7, 8, 9. 11 The petition includes a large volume of attachments, including a declaration 12 containing various legal citations, documents from petitioner’s prior state court Personal 13 Restraint Petitions, public records requests, and prison grievances. Id. at 16–61. Even if it 14 were possible to glean from these documents the grounds underlying the petition, the 15 mere attachment of exhibits is not sufficient to comply with the Section 2254 Rules. 16 Petitioner must file an amended petition on the form provided by the Court that clearly 17 states each ground for relief, and the facts supporting each ground. 18 B. Exhaustion 19 A state prisoner seeking habeas corpus relief in federal court must exhaust 20 available state remedies prior to filing a petition in federal court. See 28 U.S.C. § 2254. 21 Claims for relief that have not been exhausted in state court are not cognizable in a 22 federal habeas petition. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). 23 24 1 Because the petition does not state the grounds for relief, the Court cannot 2 determine whether each of the grounds has been properly exhausted in state court. 3 C. Timeliness 4 28 U.S.C. § 2244(d)(1)(A) requires a prisoner to file a habeas petition within one
5 year of “the date on which the [state court] judgment [of conviction] became final by the 6 conclusion of direct review or the expiration of the time for seeking such review[.]” This 7 period is tolled during the time a state court considers a properly filed application for 8 post-conviction relief. 28 U.S.C. § 2244(d)(2); Pace v. DiGulielmo, 544 U.S. 408, 410 9 (2005). 10 The proposed petition identifies the date petitioner was sentenced in his 11 underlying conviction as February 14, 2014. Dkt. 9 at 1. The proposed petition asserts 12 petitioner appealed his conviction to the Washington Supreme Court but does not give 13 the date of the Supreme Court’s order denying review. Id. at 2. Petitioner also identifies 14 a post-conviction proceeding, but likewise fails to provide the date upon which it
15 became final. Id. at 3. 16 Here, petitioner challenges an eight-year-old conviction, and the petition may be 17 untimely. However, petitioner has not provided the dates upon which his appeals and 18 post-conviction proceedings became final and has therefore not provided sufficient 19 information for the Court to determine whether his petition was timely filed. 20 D. Second or Successive Petition 21 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires that 22 successive § 2254 petitions be dismissed unless they meet one of the exceptions 23 outlined in 28 U.S.C. § 2244(b)(2). While the bar of successive petitions applies only
24 where the first petition was denied on the merits, a dismissal on the ground that a 1 petition was untimely qualifies as an adjudication on the merits. McNabb v. Yates, 576 2 F.3d 1028, 1029 (9th Cir. 2009). 3 Here, petitioner’s First Petition challenged the same conviction and was 4 dismissed with prejudice as time-barred. Humphreys v. Haynes, No. 3:20-cv-05426
5 BJR, Dkt. 26.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 SCOTT WESLEY HUMPHREYS, Case No. 3:22-cv-05240-JLR-TLF 7 Petitioner, v. ORDER TO SHOW CAUSE OR TO 8 AMEND COWLITZ COUNTY CLERKS, et al., 9 Respondent. 10
11 This matter is before the Court upon petitioner’s filing of a proposed petition for 12 writ of habeas corpus. Dkt. 9. Having screened the petition as required by the Rules 13 Governing § 2254 Cases (“Section 2254 Rules”), the Court notes deficiencies in the 14 petition and declines to order respondent to file an answer at this time. On or before 15 September 6, 2022, petitioner must file an amended petition correcting the deficiencies 16 identified in this Order or show cause why his petition should not be dismissed. Failure 17 to do so may result in the Court recommending dismissal without prejudice.1 18 I. BACKGROUND 19 Petitioner initiated this matter on April 7, 2022 by filing a proposed memorandum 20 of points and authorities and an application to proceed IFP; however, petitioner did not 21 file a petition for habeas corpus. Dkt. 1. The Court directed petitioner to file a petition for 22
23 1 Petitioner has also filed a motion to proceed in forma pauperis (“IFP”). Dkt. 7. Because the proposed petition does not state any grounds for relief, the Court defers consideration of petitioner’s IFP motion 24 until an amended petition is filed. 1 habeas corpus pursuant to 28. U.S.C. § 2254, noting that petitioner’s memorandum did 2 not meet the requirements for a petition. Dkt. 8. 3 On May 10, 2022, petitioner filed a proposed petition. Dkt. 9. However, the 4 proposed petition does not set forth the grounds for relief as required by Rule 2 of the
5 Section 2254 Rules. Furthermore, the petition may be untimely, and it appears it would 6 be the second or successive to petitioner’s previously filed petition. See Humphreys v. 7 Haynes, No. 3:20-cv-05426 BJR (the “First Petition”). And, the petition does not include 8 sufficient information for the Court to evaluate whether petitioner has exhausted his 9 state court remedies. 10 Petitioner subsequently filed two largely repetitive documents; these submissions 11 attach additional copies of the proposed petition and its exhibits, as well as copies of 12 case law and what appear to be documents from petitioner’s appeal of the dismissal of 13 his First Petition. Dkts. 10, 11. Yet these additional filings do not address the defects 14 identified in the Court’s order to show cause (Dkt. 8).
15 II. DISCUSSION 16 Under Rule 4 of the Section 2254 Rules, the Court is required to perform a 17 preliminary review of a habeas petition. The Court should dismiss a habeas petition 18 before the respondent is ordered to file a response, if it “plainly appears from the 19 petition and any attached exhibits that the petitioner is not entitled to relief in the district 20 court.” Id. 21 A. Failure to Specify Grounds for Relief 22 Rule 2 of the Section 2254 Rules requires that a petition substantially follow the 23 Court’s form. Further,
24 1 [t]he petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) 2 state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the 3 petitioner or person authorized to sign it for the petitioner under 28 U.S.C. §2242. 4 Id. at Rule 2(c) (emphasis added). 5 While petitioner used the prescribed form, his petition fails to comply with 6 subsections (1) and (2) because it does not specify the grounds for relief or the facts 7 supporting such grounds. Instead, in the space where the form calls for the statement of 8 the first ground for relief and supporting facts, the petition states only “duplic-ate 9 documents, Sent.” Dkt. 9 at 5. In the space for the second, third and fourth grounds for 10 relief, the petition states only “see above.” Id. at 7, 8, 9. 11 The petition includes a large volume of attachments, including a declaration 12 containing various legal citations, documents from petitioner’s prior state court Personal 13 Restraint Petitions, public records requests, and prison grievances. Id. at 16–61. Even if it 14 were possible to glean from these documents the grounds underlying the petition, the 15 mere attachment of exhibits is not sufficient to comply with the Section 2254 Rules. 16 Petitioner must file an amended petition on the form provided by the Court that clearly 17 states each ground for relief, and the facts supporting each ground. 18 B. Exhaustion 19 A state prisoner seeking habeas corpus relief in federal court must exhaust 20 available state remedies prior to filing a petition in federal court. See 28 U.S.C. § 2254. 21 Claims for relief that have not been exhausted in state court are not cognizable in a 22 federal habeas petition. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). 23 24 1 Because the petition does not state the grounds for relief, the Court cannot 2 determine whether each of the grounds has been properly exhausted in state court. 3 C. Timeliness 4 28 U.S.C. § 2244(d)(1)(A) requires a prisoner to file a habeas petition within one
5 year of “the date on which the [state court] judgment [of conviction] became final by the 6 conclusion of direct review or the expiration of the time for seeking such review[.]” This 7 period is tolled during the time a state court considers a properly filed application for 8 post-conviction relief. 28 U.S.C. § 2244(d)(2); Pace v. DiGulielmo, 544 U.S. 408, 410 9 (2005). 10 The proposed petition identifies the date petitioner was sentenced in his 11 underlying conviction as February 14, 2014. Dkt. 9 at 1. The proposed petition asserts 12 petitioner appealed his conviction to the Washington Supreme Court but does not give 13 the date of the Supreme Court’s order denying review. Id. at 2. Petitioner also identifies 14 a post-conviction proceeding, but likewise fails to provide the date upon which it
15 became final. Id. at 3. 16 Here, petitioner challenges an eight-year-old conviction, and the petition may be 17 untimely. However, petitioner has not provided the dates upon which his appeals and 18 post-conviction proceedings became final and has therefore not provided sufficient 19 information for the Court to determine whether his petition was timely filed. 20 D. Second or Successive Petition 21 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires that 22 successive § 2254 petitions be dismissed unless they meet one of the exceptions 23 outlined in 28 U.S.C. § 2244(b)(2). While the bar of successive petitions applies only
24 where the first petition was denied on the merits, a dismissal on the ground that a 1 petition was untimely qualifies as an adjudication on the merits. McNabb v. Yates, 576 2 F.3d 1028, 1029 (9th Cir. 2009). 3 Here, petitioner’s First Petition challenged the same conviction and was 4 dismissed with prejudice as time-barred. Humphreys v. Haynes, No. 3:20-cv-05426
5 BJR, Dkt. 26. If plaintiff was or could have been aware of the factual predicate of the 6 claims brought in this petition at the time he brought the First Petition, then his claims in 7 this matter would be second or successive and the Court would lack jurisdiction to 8 consider them. See Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). Because 9 plaintiff has failed to identify the grounds for his petition, the Court cannot determine 10 whether they are second or successive. 11 III. INSTRUCTIONS 12 If Petitioner intends to pursue this habeas action, he must file an amended 13 petition complying with Rule 2 of the Rules Governing Section 2254 Cases on the form 14 provided by the Court. The amended petition must state with particularity each ground
15 for relief and state the facts supporting each ground. The amended petition must be 16 legibly rewritten or retyped in its entirety, it should contain the same case number, and it 17 may not incorporate any part of the original petition by reference. The amended petition 18 will act as a complete substitute for the original petition, and not as a supplement. 19 If petitioner fails to adequately address the issues raised herein and file an 20 amended petition on or before September 6, 2022, the Court will recommend dismissal 21 of this action without prejudice. 22 23
24 1 The Clerk is directed to provide petitioner with the Court’s form petition for 2 habeas corpus relief pursuant to 28 U.S.C. § 2254. The Clerk is further directed to re- 3 note petitioner’s IFP motion (Dkt. 7) for September 6, 2022. 4 Dated this 5th day of July, 2022.
5 6 A 7 Theresa L. Fricke 8 United States Magistrate Judge
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24