Person v. Andrewjeski

• Court: District Court, W.D. Washington
• Decided: June 7, 2023
• Docket: 3:23-cv-05434
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ANTHONY SHRONE PERSON, Case No. 3:23-cv-5434-BJR-TLF 7 Petitioner, v. ORDER TO SHOW CAUSE 8 MELISSA ANDREWJESKI, 9 Respondent. 10

11 This matter comes before the court on petitioner Anthony Shrone Person’s 12 application to proceed in forma pauperis, and proposed habeas petition pursuant to 28 13 U.S.C. § 2254. Dkt. 4. The petition has not been served on respondent. Under Rule 4 of 14 the rules governing § 2254 cases, the Court must promptly examine a habeas corpus 15 petition when it is filed, and if it plainly appears from the petition and its attachments the 16 petitioner is not entitled to relief, the Court must dismiss the petition. 17 It appears that the petition – on its face – is subject to dismissal. The Court will 18 provide petitioner the opportunity, by July 7, 2023, to show cause why the federal 19 habeas corpus petition should not be dismissed 20 BACKGROUND 21 Petitioner, in custody at the Coyote Ridge Corrections Center, filed a petition for 22 habeas corpus relief on May 12, 2023. Dkt. 1. Four grounds for review are raised: (1) 23 subject matter and personal jurisdiction, Constitutional infringement of his due process 24 1 and equal protection rights, (2) ineffective assistance of counsel and prosecutorial 2 misconduct, (3) fraud, invalid judgment, misconduct of the state’s witnesses, law 3 enforcement of favorable evidence towards defense, and (4) violation of police 4 investigation. Dkt. 4-1 at 5-10.

5 DISCUSSION 6 Under Rule 4 of the Rules Governing Habeas Corpus Cases (“Section 2254 7 Rules”), the Court is required to perform a preliminary review of a habeas corpus 8 petition. The Court should dismiss a habeas petition before the respondent is ordered to 9 file a response, if it “plainly appears from the petition and any attached exhibits that the 10 petitioner is not entitled to relief in the district court.” Id. 11 1. Exhaustion 12 A state prisoner seeking habeas corpus relief in federal court must exhaust 13 available state remedies prior to filing a petition in federal court. See 28 U.S.C. § 2254. 14 “[S]tate prisoners must give the state courts one full opportunity to resolve any

15 constitutional issues by invoking one complete round of the State’s established 16 appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Claims for 17 relief that have not been exhausted in state court are not cognizable in a federal habeas 18 corpus petition. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). A petitioner must have 19 fully and fairly raised the same federal claim presented in the federal habeas corpus 20 petition, at every level of the state courts’ review. Reutter v. Crandel, 109 F.3d 575, 578 21 (9th Cir. 1997). 22 23

24 1 In this case, Petitioner fails to show he has exhausted state court remedies.1 On the 2 contrary, petitioner states that his petition for review is currently pending review in the 3 Washington State Supreme Court. Dkt. 4-1 at 2. Further, the attachments to the petition 4 confirm the petition for review is awaiting consideration by that Court. Id. at 33. See 28

5 U.S.C. § 2254(b)(1). 6 Therefore, the Court orders petitioner to show cause why his petition is 7 cognizable for federal habeas review and should not be dismissed without prejudice. 8 CONCLUSION 9 Based on the foregoing discussion, the Court finds that the claims raised in this 10 petition appear to be unexhausted, and if they are unexhausted the Court should 11 dismiss without prejudice. The Court orders petitioner to show cause in writing on or 12 before July 7, 2023 why the petition should not be dismissed for failure to exhaust state 13 remedies. 14 Dated this 7th day of June, 2023.

15 16 A 17 Theresa L. Fricke 18 United States Magistrate Judge

19 20

21 1 Petitioner states that he did not exhaust his state remedies because “the State of Washington has divested itself of competent jurisdiction.” Id. at 5. However, this Court should refrain from reviewing any 22 federal habeas claims that have not been presented and exhausted in the state courts. 28 U.S.C. §2254 (b)(1) provides, in relevant part: “An application for a writ of habeas corpus on behalf of a person in 23 custody pursuant to the judgment of a State court shall not be granted unless it appears that-- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or 24 (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”