Linville v. Jackson

• Court: District Court, W.D. Washington
• Decided: April 25, 2022
• Docket: 3:22-cv-05241
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 KENNETH ALFRED LINVILLE, JR., 9 Petitioner, Case No. C22-5241-LK-MLP 10 v. ORDER TO SHOW CAUSE 11 ROBERT JACKSON, 12 Respondent. 13

14 Petitioner Kenneth Alfred Linville, Jr., proceeding pro se, is currently incarcerated at the 15 Washington State Penitentiary in Walla Walla, Washington. Petitioner has filed a petition for a 16 writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet. (dkt. # 4).) Petitioner seeks to 17 challenge a 2014 judgment and sentence of the Thurston County Superior Court. (Id. at 1.) 18 Based on his petition, it appears Petitioner was convicted on 137 counts, including inter 19 alia “leading organized crime,” trafficking in stolen property, theft, possession of stolen 20 property, and unlawful possession of a firearm. (See Pet. at 1.) Petitioner indicates in his petition 21 that he filed a direct appeal to the Washington Court of Appeals and that the Court of Appeals 22 granted him relief in part on a claim of ineffective assistance of counsel due to his trial counsel’s 23 alleged failure to object to joinder of offenses. (Id. at 2; see State v. Linville, 199 Wn. App. 461, 1 471 (Wash. Ct. App. 2017)). Petitioner notes that the Washington Supreme Court later reversed 2 and remanded the Court of Appeals’ finding of ineffective assistance of counsel. (Id. at 2-3 3 (citing State v. Linville, 191 Wn.2d 513, 525-26 (2018)).) Petitioner subsequently filed a personal 4 restraint petition (“PRP”) to the Court of Appeals, again raising his claim of ineffective

5 assistance of counsel, which was denied as frivolous on March 18, 2022.1 (Pet. at 3, 5; dkt. # 4-1 6 at 1-2.) Petitioner notes that he did not seek review of the ineffective assistance of counsel claim 7 raised in his PRP by the Washington Supreme Court because he alleges it does not meet the 8 criteria for review. (See Pet. at 5-6, 12.) 9 In this case, it appears Petitioner now seeks habeas relief on the sole ground that the 10 Court of Appeals’ determination on his ineffective assistance of counsel claim in his PRP is in 11 conflict with federal law. (Pet. at 6.) Specifically, Petitioner notes the Washington Supreme 12 Court, in its reversal of the Court of Appeals on direct appeal, determined Petitioner failed to 13 demonstrate that he was provided ineffective assistance due to a lack of evidence in the trial 14 record. (See id.) Petitioner argues that he submitted with his PRP emails from his trial counsel,

15 which he acquired after his direct appeal, that demonstrate his trial counsel’s performance was 16 ineffective. (Id.; dkt. # 4-1 at 4-6.) As a result, Petitioner seeks to have the Court of Appeals’ 17 ruling on his direct appeal restored. (Pet. at 15.) 18 To obtain relief under § 2254, a petitioner must demonstrate that his claim for federal 19 habeas relief has been properly exhausted in the state courts. 28 U.S.C. § 2254(b)-(c). The 20 exhaustion requirement is a matter of comity, intended to afford the state courts “an initial 21

22 1 Based on the Court of Appeals’ Order on Petitioner’s PRP, the mandate on Petitioner’s direct appeal issued on October 1, 2020. (Dkt. # 4-1 at 1 n.1.) Petitioner therefore timely filed his PRP to the Court of 23 Appeals on June 24, 2021. (Id.) A certificate of finality on Petitioner’s PRP was due to issue from the Court of Appeals on April 19, 2022. See Certificate of Finality, Matter of Linville, Jr., Court of Appeals Cause No. 55853-0-II. 1 opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Picard v. 2 Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citations omitted). In order to 3 provide the state courts with the requisite “opportunity” to consider his federal claims, a prisoner 4 must “fairly present” his claims to each appropriate state court for review, including a state

5 supreme court with powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004) 6 (citing Duncan v. Henry, 513 U.S. 364, 365 (1995), and O’Sullivan v. Boerckel, 526 U.S. 838, 7 845 (1999)). 8 Here, Petitioner’s habeas petition clearly notes that his single ground for relief—in regard 9 to his claim of ineffective assistance of trial counsel as raised in his PRP—has not been 10 presented to the Washington Supreme Court. (See Pet. at 12.) Consequently, it appears the 11 Washington Supreme Court has not been provided an opportunity to address Petitioner’s ground 12 for relief, and thus, that claim remains unexhausted for purposes of federal habeas review. 13 Petitioner is advised that he must have presented his federal habeas claim to both the Washington 14 Court of Appeals and the Washington Supreme Court to satisfy the exhaustion requirement.

15 Accordingly, after careful consideration of the petition, supporting materials, governing 16 law and the balance of the record, the Court ORDERS as follows: 17 (1) Petitioner shall SHOW CAUSE no later than thirty (30) days from the date on 18 which this Order is signed why this matter should not be dismissed for failure to 19 satisfy the exhaustion requirement. Petitioner may comply with this Order by 20 filing a brief that addresses the Court’s concerns and explains why it would be 21 proper to proceed with this action. If Petitioner does not timely file a response 22 to this Order, the Court will recommend that this matter be dismissed. 23 1 (2) The Clerk of the Court is directed to send copies of this Order to Petitioner and to 2 the Honorable Lauren King. The Clerk is further directed to note this matter on 3 the Court’s calendar for May 25, 2022, for review of Petitioner’s response to this 4 Order to Show Cause.

5 Dated this 25th day of April, 2022. 6 A 7 MICHELLE L. PETERSON United States Magistrate Judge 8 9

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