Mallette v. Warner

Opinion

WESTERN DISTRICT OF WASHINGTON

9 Petitioner, Case No. C23-1844-JCC-MLP

10 v. ORDER TO SHOW CAUSE

12 Respondent.

14 Petitioner Xavier Mallette is a state prisoner who is currently confined at the Monroe 15 Correctional Complex in Monroe, Washington. He has submitted to this Court for filing a 16 petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2021 King County 17 Superior Court judgment and sentence. (See dkt. # 1-1 at 1.) Petitioner identifies ten grounds for 18 relief in his petition. (See id. at 5, 7-8, 10, 16-32.) It appears from the face of the petition that 19 Petitioner may have presented his federal habeas claims to the King County Superior Court in 20 various post-conviction motions. (See id. at 3-4, 16-32.) However, nothing in the petition 21 suggests that Petitioner presented any of his claims to the state appellate courts for review. 22 In order to obtain relief under § 2254, a petitioner must demonstrate that each of his 23 claims for federal habeas relief has been properly exhausted in the state courts. 28 U.S.C. 1 § 2254(b)-(c). The exhaustion requirement is a matter of comity, intended to afford the state 2 courts “an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal 3 rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citations

4 omitted). In order to provide the state courts with the requisite “opportunity” to consider his 5 federal claims, a prisoner must “fairly present” his claims to each appropriate state court for 6 review, including a state supreme court with powers of discretionary review. Baldwin v. Reese, 7 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995), and O’Sullivan v. 8 Boerckel, 526 U.S. 838, 845 (1999)). 9 Petitioner’s submission of his claims to the King County Superior Court for review is 10 insufficient to satisfy the exhaustion requirement. Petitioner must also present his claims to both 11 the Washington Court of Appeals and the Washington Supreme Court to fully exhaust his 12 claims. As nothing in the record demonstrates that Petitioner has presented his federal habeas 13 claims to each appropriate state court for review, it appears his claims are unexhausted and

14 therefore ineligible for federal habeas review. 15 Based on the foregoing, the Court ORDERS as follows: 16 (1) Petitioner shall SHOW CAUSE, not later than thirty (30) days from the date on 17 which this Order is signed, why his petition and this action should not be dismissed for failure to 18 exhaust state court remedies. Failure to timely respond to this Order will result in a 19 recommendation that this action be dismissed. 20 (2) The Clerk is directed to NOTE this matter on the Court’s motion calendar for 21 January 5, 2024, for review of Petitioner’s response to this Order to Show Cause. 22 (3) The Clerk is directed to send copies of this Order to Petitioner and to the 23 Honorable John C. Coughenour. 1 DATED this 5th day of December, 2023.

2 A 3

MICHELLE L. PETERSON 4 United States Magistrate Judge

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