Plush v. Uttecht

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:20-CV-05258-BHS-DWC 11 Petitioner, ORDER 12 v.

14 Respondent. The District Court has referred this action filed under 28 U.S.C. § 2254 to United States 15 Magistrate Judge David W. Christel. This matter comes before the Court on Petitioner’s Motion 16 for an Extension of Time and for Court Transcripts (“the Motion”) Dkt. 21. 17 Petitioner filed this habeas corpus Petition (“the Petition”) challenging his state court 18 conviction. Dkt. 11. On August 3, 2020, the Court directed service of the Petition. Dkt. 13. On 19 October 23, 2020, Respondent filed an Answer and the state court record. Dkt. 19, 20. In the 20 Answer, Respondent argues Petitioner has not yet exhausted his state court remedies and moves 21 for the Court to dismiss the Petition without prejudice. Dkt. 19 at 7-12. In submitting the state 22 court record, Respondent indicated the state court files contain transcripts from Petitioner’s state 23 court trial, but maintained the transcripts were not relevant since the Court should dismiss the 24 1 Petition without prejudice for failure to exhaust. Dkt. 20 at 2. Petitioner’s traverse was due on or 2 before November 16, 2020. On November 25, 2020, Petitioner filed the Motion. Dkt. 21. In the 3 Motion, Petitioner seeks a 30-day extension to file his traverse and requests the production of the 4 trial court transcripts. Dkt. 21.

5 Respondent does not object to Petitioner’s request for extension. See Dkt. 22. After a 6 review of the Motion and finding good cause, the Court grants Petitioner’s request for extension 7 and his traverse is due on or before December 18, 2020. Respondent’s reply, if any, is due on or 8 before December 25, 2020. The Clerk is directed to renote the Petition (Dkt. 11) for 9 consideration on December 25, 2020. 10 Respondent objects to production of the trial court transcripts arguing the transcripts are 11 not relevant to the issue of whether Petitioner exhausted his state court remedies. Dkt. 22. Rule 12 5(c) of the Rules Governing § 2254 Cases provides that the respondent shall indicate in the 13 answer to a habeas petition what transcripts are available and what proceedings have been 14 recorded but not transcribed. The respondent must attach to his or her answer any parts of the

15 transcript it deems relevant. Once this is done, the court, “on its own motion or upon request of 16 the petitioner may order that further portions of the existing transcripts be furnished or that 17 certain portions of the non-transcribed proceedings be transcribed and furnished.” Rule 5(c). 18 With respect to exhaustion, a state prisoner seeking habeas corpus relief in federal court must 19 exhaust available state relief prior to filing a petition in federal court. See 28 U.S.C. § 2254. 20 Claims for relief that have not been exhausted in state court are not cognizable in a federal 21 habeas corpus petition. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). 22 Here, Petitioner has been granted an extension to file his traverse. Because a 23 determination of the completeness of the record cannot be made until Petitioner has filed a

24 1 traverse and until the Petition is ripe for the Court’s review, the Motion is denied without 2 prejudice as premature. If necessary, Plaintiff may refile his request after he has filed his 3 traverse. 4 Dated this 4th day of December, 2020.

5 A 6 David W. Christel 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24