Jackson v. Jackson

• Court: District Court, W.D. Washington
• Decided: July 31, 2024
• Docket: 3:23-cv-05988
• Status: Unknown

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 BRYCE ANTHONY JACKSON, CASE NO. C23-5988JLR 11 Petitioner, ORDER v. 12 ROB JACKSON, 13 Respondent. 14

15 I. INTRODUCTION 16 This matter comes before the court on (1) Respondent Rob Jackson’s motion to 17 dismiss pro se Petitioner Bryce Anthony Jackson’s petition for a writ of habeas corpus or, 18 in the alternative, to either stay and abey the petition or abstain from considering the 19 petition (MTD (Dkt. # 26); see also MTD Resp. (Dkt. # 27); MTD Reply (Dkt. # 28); 20 Am. Pet. (Dkt. # 8)); (2) Petitioner’s motions to (a) withdraw claims (3/30/24 Mot. (Dkt. 21 # 23)), (b) to include a new ground for relief (4/4/24 Mot. (Dkt. # 24)), (c) for summary 22 judgment (MSJ (Dkt. # 32); see also MSJ Resp. (Dkt. # 33); MSJ Reply (Dkt. # 36)), 1 (d) for an evidentiary hearing (6/1/24 Mot. (Dkt. # 34)), and (e) to amend the judgment 2 (7/30/24 Mot. (Dkt. # 39)); (3) the report and recommendation (“R&R”) of United States

3 Magistrate Judge Theresa L. Fricke (R&R (Dkt. # 37)); and (4) Petitioner’s objections to 4 the R&R (Obj. (Dkt. # 38)). Having carefully reviewed those documents, the relevant 5 portions of the record, and the applicable law, the court DECLINES TO ADOPT the 6 R&R, GRANTS Respondent’s motion to dismiss the petition, DISMISSES the petition 7 without prejudice, and DENIES Petitioner’s motions as moot. 8 II. BACKGROUND

9 In 2021, a jury convicted Petitioner of custodial assault in Clark County Superior 10 Court. (State Ct. Record (Dkt. # 30-1) at 2.1) Petitioner appealed, but later voluntarily 11 dismissed his direct appeal. (Id. at 16-17.) On June 15, 2023, Petitioner filed a personal 12 restraint petition (“PRP”) in the Washington Court of Appeals. (Id. at 19.) The Acting 13 Chief Judge determined Petitioner’s PRP was not frivolous, referred the matter for a

14 merits determination, and appointed post-conviction counsel on Petitioner’s behalf. (Id. 15 at 31-32.) The Court of Appeals later granted Petitioner’s motion to dismiss his 16 appointed counsel.2 Petitioner’s PRP remains pending in the Washington Court of 17 Appeals, where he is proceeding pro se. (See id. at 46.) 18

19 1 The court references the page numbers in the CM/ECF header when citing to this document. 20 2 Petitioner claims his appointed PRP lawyer “was dismissed for ineffective counsel.” (Obj. at 3.) Although the court is unable to independently confirm the basis for dismissal, the 21 court has confirmed through a docket search via LexisNexis CourtLink that on April 2, 2024, upon Petitioner’s motion, the Court of Appeals ordered Petitioner’s PRP lawyer to withdraw and 22 permitted Petitioner to proceed pro se. 1 Petitioner initiated this habeas proceeding on October 20, 2023, during the 2 pendency of his PRP. (Prop. Pet. (Dkt. # 1).) He later filed the operative petition on

3 January 13, 2024, challenging his state court conviction pursuant to 28 U.S.C. § 2254. 4 (See generally Am. Pet.; see also R&R at 1.) In the operative petition, Petitioner 5 acknowledges that his PRP is “pending” and unresolved, but states he nevertheless 6 initiated this federal action due to alleged “bias” and “corrupt[ion]”at the Washington 7 Court of Appeals. (Am. Pet. at 11, 13 (seeking “federal intervention . . . in order to 8 preserve the rule of law”).3) On the merits, Petitioner raises numerous challenges to his

9 state court conviction for custodial assault, at least some of which overlap with the claims 10 raised in his PRP. (Compare id. at 4-12 (claiming false arrest, ineffective assistance of 11 trial counsel, violations of the right to self-representation, and more), with State Ct. 12 Record at 21-23, 36-43 (same).) 13 On April 5, 2024, Respondent filed a motion to dismiss the petition based on

14 Petitioner’s failure to exhaust his habeas claims in the state courts. (See generally MTD.) 15 Alternatively, Respondent requests the court stay and abey the petition pending resolution 16 of Petitioner’s PRP in the state courts, or abstain from considering Petitioner’s claims 17 pursuant to the Younger4 abstention doctrine. (Id. at 4-6.) Petitioner opposes the motion, 18 arguing the court should excuse the exhaustion requirement and reach the merits of his

19 claims because (1) the state courts have engaged in “unreasonable delay” by failing to 20

21 3 The court references the page numbers in the CM/ECF header when citing to this document. 22 4 Younger v. Harris, 401 U.S. 37 (1971). 1 rule on his PRP to date, and (2) pursuant to 28 U.S.C. § 2254(b)(1)(B)(ii), circumstances 2 exist that render the state post-conviction process ineffective to protect his rights. (MTD

3 Resp. at 2, 4.) 4 The R&R recommends the court (1) deny Respondent’s request to dismiss the 5 petition; (2) grant Respondent’s alternative request to stay and abey the petition pending 6 resolution of the PRP; (3) deny Petioner’s motions for summary judgment and for an 7 evidentiary hearing as premature; and (4) deny Petitioner’s motions to withdraw claims 8 and to add a new ground for relief for failure to comply with Federal Rule of Civil

9 Procedure 15(a) and Local Civil Rule 15(a). (See generally R&R); see also Fed. R. Civ. 10 P. 15(a)(1)(2) (governing amendments to pleadings); Local Rules W.D. Wash. LCR 15(a) 11 (“The proposed amended pleading must not incorporate by reference any part of the 12 preceding pleading, including exhibits.”). 13 Petitioner filed timely objections to the R&R. (See generally Obj.) Petitioner

14 opposes the stay-and-abey procedure, arguing the court should order the state to expand 15 the record in order to determine whether circumstances exist warranting excusal of the 16 exhaustion requirement. (Id. at 3.) Petitioner reiterates his allegations concerning 17 unreasonable delay and an ineffective state post-conviction process. (Id. at 1-2.) In 18 addition, on July 30, 2024, Petitioner filed a motion “to amend the judgment” in which he

19 again seeks an order expanding the record. (See generally 7/30/24 Mot.) 20 III. ANALYSIS 21 A district court has jurisdiction to review a Magistrate Judge’s report and 22 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “A judge of the court 1 may accept, reject, or modify, in whole or in part, the findings or recommendations made 2 by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “The statute makes it clear that the

3 district judge must review the magistrate judge’s findings and recommendations de novo 4 if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 5 1121 (9th Cir. 2003) (en banc). Because Petitioner is proceeding pro se, the court must 6 interpret his pleadings liberally. See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 7 (9th Cir. 2003). 8 Under 28 U.S.C. § 2254(b), a federal court may not grant habeas relief unless a

9 petitioner has first exhausted the remedies available in state court, subject to certain 10 exceptions. Exhaustion “requires that petitioners fairly present federal claims to the state 11 courts in order to give the State the opportunity to pass upon and correct alleged 12 violations of its prisoners’ federal rights.” Ybarra v. McDaniel, 656 F.3d 984, 991 (9th 13 Cir. 2011) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). “If the claim which is

14 the subject of the petition was not presented to the state courts on direct appeal, state 15 collateral remedies must be exhausted.” Sweet v. Cupp, 640 F.2d 233, 235 (9th Cir. 16 1981). “Regardless of whether or how a petitioner has presented a claim, however, that 17 claim has been exhausted if the state courts have in fact ruled on its merits.” Ybarra, 656 18 F.3d at 991. As a matter of comity, a federal court generally will not entertain a habeas

19 petition unless the petitioner has exhausted his state remedies on every ground presented 20 in the petition. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982); see also Coleman v. 21 Thompson, 501 U.S. 722, 731 (1991) (“[A] state prisoner’s federal habeas petition should 22 // 1 be dismissed if the prisoner has not exhausted available state remedies as to any of his 2 federal claims.”).

3 In “limited circumstances,” the district court may stay and abey a habeas petition 4 for the purpose of allowing the petitioner to exhaust state remedies (a “Rhines stay”). 5 Rhines v. Weber, 544 U.S. 269, 277 (2005). A Rhines stay may be employed as to both 6 “mixed” petitions—i.e., those containing exhausted and unexhausted claims—and 7 petitions raising only unexhausted claims. Mena v. Long, 813 F.3d 907, 908 (9th Cir. 8 2016). A Rhines stay is appropriate if (1) the petitioner has good cause for his failure to

9 exhaust, (2) his unexhausted claims are potentially meritorious, and (3) there is no 10 indication that the petitioner engaged in intentionally dilatory litigation tactics. Rhines, 11 544 U.S. at 278. “The good cause element . . . ensures that a stay and abeyance is 12 available only to those petitioners who have a legitimate reason for failing to exhaust a 13 claim in state court.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). The Supreme

14 Court has not precisely defined what constitutes “good cause” under Rhines. Id. at 15 980-81. The Ninth Circuit has held that good cause does not require a showing of 16 “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). 17 Rather, “good cause turns on whether the petitioner can set forth a reasonable excuse, 18 supported by sufficient evidence, to justify” the failure to exhaust. Blake, 745 F.3d at

19 982 (“An assertion of good cause without evidentiary support will not typically amount 20 to a reasonable excuse justifying a petitioner’s failure to exhaust.”). “While a bald 21 assertion cannot amount to a showing of good cause, a reasonable excuse, supported by 22 evidence to justify a petitioner’s failure to exhaust, will.” Id. 1 In addition, 28 U.S.C. § 2254(b)(1)(B) provides for two exceptions to the 2 exhaustion requirement. A court may, in its discretion, dispense with the exhaustion

3 requirement and proceed to consider the merits of unexhausted habeas claims if (1) “there 4 is an absence of available State corrective process,” or (2) “circumstances exist that 5 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. 6 § 2254(b)(1)(B)(i)-(ii); Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993) (directing 7 that exhaustion should be excused only “in rare cases where exceptional circumstances of 8 peculiar urgency are shown to exist” (quoting Granberry v. Greer, 481 U.S. 129, 134

9 (1987))). A state corrective process is unavailable if “there is no opportunity to obtain 10 redress in state court,” and it is ineffective if it is “so clearly deficient as to render futile 11 an effort to obtain relief.” Ducksworth v. Serrano, 454 U.S. 1, 3 (1981). Excessive delay 12 in the state corrective process can support excusal of the exhaustion requirement. Coe v. 13 Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990). The Ninth Circuit examines four factors

14 (the “Barker factors”) in evaluating the excessiveness of a particular delay: the “[l]ength 15 of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to 16 the defendant.” Id. at 531 (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). 17 Here, Magistrate Judge Fricke recommends employing a Rhines stay to allow 18 Petitioner to exhaust his state remedies before continuing to pursue habeas relief in

19 federal court. Petitioner opposes the stay-and-abeyance procedure (Obj. at 2), which was 20 initially proposed by Respondent (MTD at 4-5). Although Respondent identifies the 21 correct analytical framework governing Rhines stays, Respondent does not actually apply 22 that framework to the facts of this case—failing to explain, among other relevant factors, 1 what might constitute good cause for Petitioner’s failure to exhaust his state remedies. 2 (See id. (citing Rhines, 544 U.S. at 277).) Judge Fricke suggests that

3 if petitioner’s attorney on direct appeal was not providing effective assistance of counsel, or the issues require development of the record in state court and 4 would therefore only be able to be addressed in a post-conviction petition, these situations asserted by petitioner would potentially be good cause for 5 failing to exhaust state remedies by not raising federal issues on direct appeal in state court. 6 (R&R at 4.) The court disagrees with this assessment of good cause for two reasons. 7 First, this statement appears to assume that direct appeal is the only pathway to 8 exhaustion. But as the Ninth Circuit has explained, “[i]f the claim which is the subject of 9 the petition was not presented to the state courts on direct appeal, state collateral 10 remedies must be exhausted.” Sweet, 640 F.2d at 235. Although Petitioner voluntarily 11 dismissed his direct appeal, he may (and must) still exhaust his state remedies by fully 12 and fairly presenting his claims to the Washington appellate courts in a PRP. Second, the 13 “potential[]” for good cause is insufficient to obtain a Rhines stay. (R&R at 4.) A 14 petitioner must provide “a reasonable excuse, supported by evidence.” Blake, 745 F.3d at 15 982. No party has attempted to establish good cause in this case, much less with 16 evidence. 17 The court concludes that a Rhines stay is not warranted. Petitioner opposes the 18 procedure. Respondent fails to explain why a Rhines stay is appropriate under the 19 circumstances, and the court “will not make arguments for him.” SEC v. Schooler, 905 20 F.3d 1107, 1115 (9th Cir. 2018). Accordingly, the court DECLINES to adopt the 21 // 22 1 recommendation to implement a Rhines stay (see R&R at 3-5), and proceeds to consider 2 Respondent’s principal request to dismiss the petition (see MTD at 3-5).

3 The court agrees with Respondent that dismissal is warranted based on Petitioner’s 4 failure to exhaust his state remedies. 28 U.S.C. § 2254(b)(1)(A). Because Petitioner 5 abandoned his direct appeal and his PRP remains pending in the Washington Court of 6 Appeals, the state courts have not yet ruled on the merits of any of Petitioner’s claims. 7 Thus, his petition presents only unexhausted claims and should be dismissed unless an 8 exception to the exhaustion requirement applies. Coleman, 501 U.S. at 731; 28 U.S.C.

9 § 2254(b)(1)(B)(i)-(ii). Petitioner offers two independent reasons why the court should 10 dispense with the exhaustion requirement in this case: (1) “bias” and “corrupt[ion]” at 11 the Washington Court of Appeals has produced a state corrective process that is 12 ineffective and “rotten to its core” (Am. Pet. at 11, 13; MTD Resp. at 7; see also Obj. at 13 1); and (2) “unnecessary delay” by the state courts in resolving Petitioner’s PRP (Obj. at

14 2). Both arguments fail. 15 First, Petitioner’s arguments concerning bias and corruption in the state courts are 16 largely conclusory and wholly unsubstantiated by facts or evidence. As best the court 17 can tell, it appears the Washington Court of Appeals made rulings with which Petitioner 18 disagrees. (See Am. Pet. at 13 (Petitioner criticizing the appellate court for granting the

19 State an extension of time and for “refus[ing] to grant the relief I wanted” following a 20 disagreement with his then-lawyer).) Petitioner offers no other concrete facts that would 21 tend to demonstrate corruption in the state courts. Standing alone, mere disagreement 22 with litigation outcomes neither evidences judicial corruption nor demonstrates that the 1 state corrective process is “so clearly deficient as to render futile” any effort to obtain 2 collateral relief. Serrano, 454 U.S. at 3. To the extent Petitioner seeks to expand the

3 record for the purpose of uncovering evidence of perceived corruption in the state courts 4 (see Obj. at 1, 3), this effort amounts to an improper fishing expedition and will not be 5 permitted. See Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (“Habeas is an 6 important safeguard whose goal is to correct real and obvious wrongs. It was never 7 meant to be a fishing expedition for habeas petitioners to explore their case in search of 8 its existence.” (internal quotation marks omitted)).

9 Second, the Barker factors do not support excusing the exhaustion requirement on 10 the basis of undue delay. See Coe, 922 F.2d at 531 (noting the Barker factors include the 11 “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and 12 prejudice to the defendant”). The length of delay in Petitioner’s PRP proceeding thus 13 far—approximately thirteen months—is not so excessive as to raise concern. See, e.g.,

14 Westfall v. Lampert, 42 F. App’x 19, 21 (9th Cir. 2002) (delay of approximately fourteen 15 months not excessive); cf. Coe, 922 F.2d at 531 (noting “there is no talismanic number of 16 years or months” after which exhaustion must be excused, but four-year delay was 17 “alarming”). A review of Petitioner’s PRP docket reveals that at least some of the delay 18 is attributable to Petitioner, which weighs against him. See Delbacher v. Calderon, 160

19 F.3d 582, 586 (1998) (enforcing exhaustion requirement where the petitioner was 20 “partially to blame for the delay”). Indeed, Petitioner’s litigation conduct has prompted 21 at least two extensions of the PRP briefing schedule—one resulted from a motion for an 22 extension of time that Petitioner filed through counsel, and another resulted from 1 Petitioner’s motion to dismiss his court-appointed PRP attorney. Additionally, the docket 2 shows the Court of Appeals has diligently considered and ruled on Petitioner’s many

3 motions in the PRP proceeding, which negates any inference that the state courts are 4 handling his case “in glacial fashion.” Id. (quoting Burris v. Farley, 51 F.3d 655, 658 5 (7th Cir. 1995)). To Petitioner’s credit, he “has diligently and continuously asserted his 6 rights” in both the state and federal courts, which weighs in his favor. Coe, 922 F.2d at 7 532. But he has not “shown that the oppressiveness of his incarceration and any anxiety 8 awaiting the outcome of his [PRP], exceed that of any other habeas petitioner awaiting

9 adjudication of claims” in the state courts. Letner v. Broomfield, No. 1:18-cv-01459-JLT, 10 2022 WL 10626051, at *7 (E.D. Cal. Oct. 18, 2022). Thus, on balance, the Barker 11 factors weigh against Petitioner. 12 In sum, Petitioner fails to demonstrate that his is a “rare” case of “peculiar 13 urgency” in which the court should exercise its discretion to excuse the exhaustion

14 requirement. Hendricks, 993 F.2d at 672. The court therefore dismisses the petition 15 without prejudice for failure to exhaust state remedies and denies Petitioner’s various 16 motions as moot.5 17 IV. CONCLUSION 18 For the foregoing reasons, the court DECLINES TO ADOPT the R&R (Dkt.

19 # 37), GRANTS Respondent’s motion to dismiss (Dkt. # 26), DISMISSES the amended 20 21

5 Because the court determines dismissal is appropriate, it need not address Respondent’s 22 alternative argument concerning Younger abstention. (See MTD at 5-6.) 1 petition without prejudice (Dkt. # 8), and DENIES Petitioner’s motions (Dkt. ## 23-24, 2 32, 34, 39) as moot.

3 Dated this 31st day of July, 2024. A 4 JAMES L. ROBART 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18

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