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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ANDREW OTIKER, CASE NO. 3:20-CV-6151-RSL-DWC 11 Petitioner, REPORT AND RECOMMENDATION 12 v. NOTED FOR: October 15, 2021 13 JEFFREY A. UTTECHT, 14 Respondent. 15 16 The District Court has referred this petition for a writ of habeas corpus to United States 17 Magistrate Judge David W. Christel. Petitioner filed the petition pursuant to 28 U.S.C. § 2254. 18 As discussed below, the petition should be dismissed without prejudice for failure to exhaust. 19 BACKGROUND 20 On September 9, 2019, Petitioner pleaded guilty to one count of vehicular homicide. Dkt. 21 12-1 at 1, 11. On the same day, the trial court sentenced Petitioner to 100 months’ imprisonment. 22 Id. at 3. On June 25, 2021, the trial court resentenced Petitioner to 90 months’ imprisonment 23 24 1 followed by 18 months’ community custody. Id. at 15, 17–18, 24. Petitioner did not appeal the 2 original or amended judgment. Dkt. 11 at 2. 3 Meanwhile, on November 24, 2020, Petitioner filed his federal petition. Dkt. 5 at 1, 15. 4 Petitioner alleges that his conviction violated various constitutional provisions because the State
5 did not indict him by grand jury. See, e.g., at 5, 7–8, 10. Petitioner admits that he did not raise his 6 claims in state court. See, e.g., id. at 6–7, 9–10. Petitioner alleges that the state of Washington 7 “does not have the jurisdictional authority to decide [] U.S. constitutional matters.” See, e.g., id. 8 at 6. Furthermore, he alleges that “there are no remedies . . . as long as the state of Washington is 9 acting in willful defiance of federal processes and statutes.” See, e.g., id. at 7. 10 On August 26, 2021, the State filed a response. Dkt. 11. Relevant here, the State argues 11 that the petition must be dismissed without prejudice because Petitioner failed to exhaust state 12 court remedies. Id. at 5–7. Petitioner did not reply. 13 DISCUSSION 14 “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available
15 state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and 16 correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 17 (2004) (citation and internal quotation marks omitted). “To provide the State with the necessary 18 opportunity, the prisoner must fairly present his claim in each appropriate state court (including a 19 state supreme court with powers of discretionary review), thereby alerting that court to the 20 federal nature of the claim.” Id. (citation and internal quotation marks omitted); accord 21 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Because the exhaustion doctrine is designed 22 to give the state courts a full and fair opportunity to resolve federal constitutional claims before 23 those claims are presented to the federal courts, we conclude that state prisoners must give the
24 1 state courts one full opportunity to resolve any constitutional issues by invoking one complete 2 round of the State’s established appellate review process.”). 3 Generally, a personal restraint petition (“PRP”) is “Washington State’s mechanism for 4 collateral challenges.” Barker v. Fleming, 423 F.3d 1085, 1090 (9th Cir. 2005). “[A] personal
5 restraint petition may be used to assert the violation of a federal constitutional right even if the 6 defendant did not raise the issue on direct appeal.” Casey v. Moore, 386 F.3d 896, 919 (9th Cir. 7 2004) (citation omitted). A defendant must first file a PRP in the Washington Court of Appeals 8 and then, if unsuccessful, seek discretionary review in the Washington Supreme Court. See id. at 9 915–18. 10 Here, Petitioner failed to exhaust state remedies. Petitioner concedes that he did not raise 11 his claims in state court. Likewise, he did not reply to Respondent’s assertion that he failed to do 12 so. Petitioner’s failure to challenge Respondent’s assertion conclusively establishes that he failed 13 to exhaust state remedies. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971) (“Petitioner, 14 in his traverse, has not disputed the contention [at issue], and thus this Court may accept the fact
15 that he has not exhausted his remedies with respect to this issue.” (citing 28 U.S.C. § 2248)).1 16 Attempting to justify his failure to exhaust state remedies, Petitioner alleges that the state 17 of Washington “does not have the jurisdictional authority to decide [] U.S. constitutional 18 matters.” See, e.g., Dkt. 5 at 6. This is untrue. See, e.g., Casey, 386 F.3d at 919 (“[A] personal 19 restraint petition may be used to assert the violation of a federal constitutional right . . . .” 20 (citation omitted)). Furthermore, Petitioner alleges that “there are no remedies . . . as long as the 21 22 1 “Washington law allows a defendant on year after a judgment and sentence become[] 23 final to file a collateral challenge to the judgment.” Dkt. 11 at 6 (citing Wash. Rev. Code § 10.73.090). Therefore, because the trial court resentenced Petitioner on June 25, 2021, he still 24 has time to collaterally attack his conviction. Id. 1 state of Washington is acting in willful defiance of federal processes and statutes.” See, e.g., Dkt. 2 5 at 7. However, allegedly “obvious constitutional errors . . . are [still] subject to the 3 requirements of § 2254(b).” See Duckworth v. Serrano, 454 U.S. 1, 4 (1981) (per curiam). 4 In sum, Petitioner has failed to exhaust state remedies. Therefore, his petition should be
5 dismissed without prejudice. See Watson v. Lampert, 27 F. App’x 824, 825 (9th Cir. 2001) 6 (district court “properly dismisse[s] [federal] petition without prejudice for failure to exhaust 7 [state remedies]” (citation omitted)). 8 EVIDENTIARY HEARING 9 The decision to hold an evidentiary hearing is committed to this Court’s discretion. 10 Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “In deciding whether to grant an evidentiary 11 hearing, a federal court must consider whether such a hearing could enable an applicant to prove 12 the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas 13 relief.” Id. at 474 (citations omitted). “It follows that if the record refutes the applicant’s factual 14 allegations or otherwise precludes habeas relief, a district court is not required to hold an
15 evidentiary hearing.” Id. “[A]n evidentiary hearing is not required on issues that can be resolved 16 by reference to the state court record.” Id. (citation and internal quotation marks omitted). 17 Here, because Petitioner has failed to exhaust state remedies, the record precludes relief. 18 So an evidentiary hearing is not warranted.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ANDREW OTIKER, CASE NO. 3:20-CV-6151-RSL-DWC 11 Petitioner, REPORT AND RECOMMENDATION 12 v. NOTED FOR: October 15, 2021 13 JEFFREY A. UTTECHT, 14 Respondent. 15 16 The District Court has referred this petition for a writ of habeas corpus to United States 17 Magistrate Judge David W. Christel. Petitioner filed the petition pursuant to 28 U.S.C. § 2254. 18 As discussed below, the petition should be dismissed without prejudice for failure to exhaust. 19 BACKGROUND 20 On September 9, 2019, Petitioner pleaded guilty to one count of vehicular homicide. Dkt. 21 12-1 at 1, 11. On the same day, the trial court sentenced Petitioner to 100 months’ imprisonment. 22 Id. at 3. On June 25, 2021, the trial court resentenced Petitioner to 90 months’ imprisonment 23 24 1 followed by 18 months’ community custody. Id. at 15, 17–18, 24. Petitioner did not appeal the 2 original or amended judgment. Dkt. 11 at 2. 3 Meanwhile, on November 24, 2020, Petitioner filed his federal petition. Dkt. 5 at 1, 15. 4 Petitioner alleges that his conviction violated various constitutional provisions because the State
5 did not indict him by grand jury. See, e.g., at 5, 7–8, 10. Petitioner admits that he did not raise his 6 claims in state court. See, e.g., id. at 6–7, 9–10. Petitioner alleges that the state of Washington 7 “does not have the jurisdictional authority to decide [] U.S. constitutional matters.” See, e.g., id. 8 at 6. Furthermore, he alleges that “there are no remedies . . . as long as the state of Washington is 9 acting in willful defiance of federal processes and statutes.” See, e.g., id. at 7. 10 On August 26, 2021, the State filed a response. Dkt. 11. Relevant here, the State argues 11 that the petition must be dismissed without prejudice because Petitioner failed to exhaust state 12 court remedies. Id. at 5–7. Petitioner did not reply. 13 DISCUSSION 14 “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available
15 state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and 16 correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 17 (2004) (citation and internal quotation marks omitted). “To provide the State with the necessary 18 opportunity, the prisoner must fairly present his claim in each appropriate state court (including a 19 state supreme court with powers of discretionary review), thereby alerting that court to the 20 federal nature of the claim.” Id. (citation and internal quotation marks omitted); accord 21 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Because the exhaustion doctrine is designed 22 to give the state courts a full and fair opportunity to resolve federal constitutional claims before 23 those claims are presented to the federal courts, we conclude that state prisoners must give the
24 1 state courts one full opportunity to resolve any constitutional issues by invoking one complete 2 round of the State’s established appellate review process.”). 3 Generally, a personal restraint petition (“PRP”) is “Washington State’s mechanism for 4 collateral challenges.” Barker v. Fleming, 423 F.3d 1085, 1090 (9th Cir. 2005). “[A] personal
5 restraint petition may be used to assert the violation of a federal constitutional right even if the 6 defendant did not raise the issue on direct appeal.” Casey v. Moore, 386 F.3d 896, 919 (9th Cir. 7 2004) (citation omitted). A defendant must first file a PRP in the Washington Court of Appeals 8 and then, if unsuccessful, seek discretionary review in the Washington Supreme Court. See id. at 9 915–18. 10 Here, Petitioner failed to exhaust state remedies. Petitioner concedes that he did not raise 11 his claims in state court. Likewise, he did not reply to Respondent’s assertion that he failed to do 12 so. Petitioner’s failure to challenge Respondent’s assertion conclusively establishes that he failed 13 to exhaust state remedies. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971) (“Petitioner, 14 in his traverse, has not disputed the contention [at issue], and thus this Court may accept the fact
15 that he has not exhausted his remedies with respect to this issue.” (citing 28 U.S.C. § 2248)).1 16 Attempting to justify his failure to exhaust state remedies, Petitioner alleges that the state 17 of Washington “does not have the jurisdictional authority to decide [] U.S. constitutional 18 matters.” See, e.g., Dkt. 5 at 6. This is untrue. See, e.g., Casey, 386 F.3d at 919 (“[A] personal 19 restraint petition may be used to assert the violation of a federal constitutional right . . . .” 20 (citation omitted)). Furthermore, Petitioner alleges that “there are no remedies . . . as long as the 21 22 1 “Washington law allows a defendant on year after a judgment and sentence become[] 23 final to file a collateral challenge to the judgment.” Dkt. 11 at 6 (citing Wash. Rev. Code § 10.73.090). Therefore, because the trial court resentenced Petitioner on June 25, 2021, he still 24 has time to collaterally attack his conviction. Id. 1 state of Washington is acting in willful defiance of federal processes and statutes.” See, e.g., Dkt. 2 5 at 7. However, allegedly “obvious constitutional errors . . . are [still] subject to the 3 requirements of § 2254(b).” See Duckworth v. Serrano, 454 U.S. 1, 4 (1981) (per curiam). 4 In sum, Petitioner has failed to exhaust state remedies. Therefore, his petition should be
5 dismissed without prejudice. See Watson v. Lampert, 27 F. App’x 824, 825 (9th Cir. 2001) 6 (district court “properly dismisse[s] [federal] petition without prejudice for failure to exhaust 7 [state remedies]” (citation omitted)). 8 EVIDENTIARY HEARING 9 The decision to hold an evidentiary hearing is committed to this Court’s discretion. 10 Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “In deciding whether to grant an evidentiary 11 hearing, a federal court must consider whether such a hearing could enable an applicant to prove 12 the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas 13 relief.” Id. at 474 (citations omitted). “It follows that if the record refutes the applicant’s factual 14 allegations or otherwise precludes habeas relief, a district court is not required to hold an
15 evidentiary hearing.” Id. “[A]n evidentiary hearing is not required on issues that can be resolved 16 by reference to the state court record.” Id. (citation and internal quotation marks omitted). 17 Here, because Petitioner has failed to exhaust state remedies, the record precludes relief. 18 So an evidentiary hearing is not warranted. 19 CERTIFICATE OF APPEALABILITY 20 A petitioner seeking post-conviction relief under § 2254 may appeal a district court’s 21 dismissal of the federal habeas petition only after obtaining a certificate of appealability (COA) 22 from a district or circuit judge. A certificate of appealability may issue only if a petitioner has 23 made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
24 1 “When the district court denies a habeas petition on procedural grounds without reaching the 2 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows . . . that 3 jurists of reason would find it debatable whether the petition states a valid claim of the denial of 4 a constitutional right and that jurists of reason would find it debatable whether the district court
5 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). Because 6 petitioner has not so shown, a COA should be denied. 7 IN FORMA PAUPERIS (“IFP”) STATUS ON APPEAL 8 Petitioner should not be granted IFP status for purposes of an appeal of this matter. IFP 9 status on appeal shall not be granted if the district court certifies “before or after the notice of 10 appeal is filed” “that the appeal is not taken in good faith[.]” See Fed. R. App. P. 24(a)(3)(A). 11 “The good faith requirement is satisfied if the petitioner seeks review of any issue that is not 12 frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (citation and internal quotation 13 marks omitted). Generally, an issue is not frivolous if it has an “arguable basis either in law or in 14 facts.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because any appeal from this matter
15 would be frivolous, IFP status should not be granted for purposes of appeal. 16 CONCLUSION 17 As discussed above, it is recommended that the petition (Dkt. 5) be DISMISSED 18 WITHOUT PREJUDICE for failure to exhaust state remedies. It is further recommended that 19 this case be CLOSED and that a certificate of appealability be DENIED. 20 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the Parties shall have 21 fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 22 6. Failure to file objections will result in a waiver of those objections for purposes of de novo 23 review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those
24 1 objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. 2 Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). Accommodating the time limit imposed by Rule 3 72(b), the Clerk is directed to set the matter for consideration on October 15, 2021 as noted in 4 the caption.
5 Dated this 28th day of September, 2021. 6 A 7 David W. Christel United States Magistrate Judge 8
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