Krause v. Jackson

• Court: District Court, W.D. Washington
• Decided: December 11, 2019
• Docket: 2:19-cv-01421
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 KEITH DALE KRAUSE, CASE NO. C19-1421 MJP 11 Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION 12 v. 13 BELINDA STEWART, 14 Respondent. 15 16 THIS MATTER comes before the Court on Petitioner’s Objections (Dkt. No. 7) to the 17 Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate 18 Judge. (Dkt. No. 6.) Having reviewed the Report and Recommendation, the Objections, and all 19 related papers, the Court ADOPTS the Report and Recommendation and DENIES Petitioner’s 20 28 U.S.C. § 2241 Petition. 21 The relevant facts and procedural background are set forth in detail in the Report and 22 Recommendation. (Dkt. No. 6.) Construing the Petition as seeking habeas relief under 28 23 U.S.C. § 2254, Magistrate Judge Tsuchida found that: (1) the Petition is time-barred; (2) the 24 1 Court lacks jurisdiction because the Petition is second or successive, and; (3) the Petition lacks 2 merit. (Id. at 9-10.) Judge Tsuchida also recommended denying Petitioner a certificate of 3 appealability (“COA”), directing Petitioner to address whether a COA should issue in his written 4 objections. (Id. at 10-11.)

5 Petitioner now objects to Magistrate Judge Tsuchida’s construction of the Petition as 6 seeking habeas relief under 28 U.S.C. § 2254, and Judge Tsuchida’s finding that the Petition 7 lacks merit. (Dkt. No. 7 at 1-4.) The Court finds both objections unfounded. First, habeas relief 8 under 28 U.S.C. § 2241 provides the authority for granting habeas relief to a person “who is not 9 in custody pursuant to a state court judgment” but, rather, who is in custody for some other 10 reason, such as pretrial detention or while awaiting extradition. White v. Lambert, 370 F.3d 11 1002, 1006 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 12 (9th Cir. 2010). Because Petitioner has been in state custody since 1994 pursuant to a judgment 13 by the King County Superior Court, 28 U.S.C. § 2254 is the exclusive vehicle for habeas relief. 14 (Dkt. No. 1, Ex. 2); White, 370 at 1009-10.

15 Second, Petitioner’s primary objection, that his exceptional sentence violates the 16 Supremacy Clause of the United States Constitution, is fully addressed in the Report and 17 Recommendation. (Dkt. No. 6 at 9-11.) Because Petitioner has filed previous habeas petitions, 18 Krause v. Wengler, No. C09-1452, 2010 WL 3502728 (W.D. Wash. Sept. 3, 2010); Krause v. 19 Stewart, C98-1453-JCC, Dkt. No. 1 (W.D. Wash. Nov. 26, 2001), he must show that his claim 20 “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the 21 Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). In this case, as 22 discussed in the Report and Recommendation, the Ninth Circuit has held that Blakely v. 23 Washington, 542 U.S. 296, 304-05 (2004), which found that the petitioner’s exceptional sentence

24 1 violated the Sixth Amendment, does not apply retroactively to cases that became final prior to its 2 publication, such as Petitioner’s. Schardt v. Payne, 414 F.3d 1025, 1027 (9th Cir. 2005). 3 Further, although Petitioner did not address the Report and Recommendation’s other 4 conclusions—that the Petition is time-barred and is second, or successive—the Court finds that

5 these issues alone preclude the Court from granting habeas relief. (Dkt. No. 6 at 4-7.) 6 The Court therefore ADOPTS the Report and Recommendation and DISMISSES 7 Petitioner’s habeas petition with prejudice. Finding that Petitioner has failed to demonstrate that 8 a reasonable jurist would disagree that the habeas petition lacks merit, is time-barred, and is 9 second or successive, the Court declines to issue a Certificate of Appealability. 10 11 The clerk is ordered to provide copies of this order to Judge Tsuchida, Petitioner, and to 12 all counsel. 13 14 Dated December 11, 2019.

A 15 16 Marsha J. Pechman 17 United States District Judge

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