Rodriguez-Macedo v. Bennett

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RIGOBERTO RODRIGUEZ-MACEDO, CASE NO. 2:24-cv-00963-RSL-DWC 11 Petitioner, v. REPORT AND RECOMMENDATION 12 JASON BENNETT, Noting Date: August 28, 2024 13 Respondent. 14

15 The District Court has referred this federal habeas action to United States Magistrate 16 Judge David W. Christel. Petitioner Rigoberto Rodriguez-Macedo, proceeding pro se, initiated 17 this action by filing a motion to proceed in forma pauperis (“IFP”) (Dkt. 1), a proposed federal 18 habeas petition (Dkt. 1-1), and other proposed motions and requests (Dkts. 1-5, 1-8). Following 19 an initial screen of the proposed petition, Petitioner was ordered to show cause why this action 20 should not be dismissed for failure to exhaust. Dkt. 4. The show cause deadline has now elapsed 21 with nothing filed by Petitioner. As such, the undersigned recommends this action be dismissed 22 without prejudice for failure to exhaust. 23 24 1 I. DISCUSSION 2 Petitioner is currently incarcerated at Stafford Creek Corrections Center, where he is 3 serving a sentence of confinement arising out of his second-degree murder conviction entered in 4 State of Washington v. Rigoberto Rodriguez-Macedo, Superior Court of Washington for King

5 County Case No. 18-1-06885-8, case information available at https://dja- 6 prdecexap1.kingcounty.gov/?q=case (last accessed July 9, 2024). Before filing the instant action 7 Petitioner filed a habeas action in this court seeking federal habeas relief of his second-degree 8 murder conviction and sentence in which he asserted an “unlawful seizure” claim in violation of 9 the Fourteenth Amendment to the United States Constitution. See Rodriguez-Macedo v. Bennett, 10 Case No. 2:24-cv-0026-RSM (W.D. Wash.). On May 8, 2024, the Court dismissed that action 11 without prejudice for failure to exhaust. Id. 12 Shortly thereafter, Petitioner filed the instant action raising the same claim for federal 13 habeas relief on his state-court conviction and sentence. See Dkts. 1, 1-1. On July 10, 2024, the 14 Court performed an initial review of his proposed petition. Dkt. 4. As part of that review, the

15 Court noted that, although styled as one filed under 28 U.S.C. § 2241, the proposed petition must 16 be construed as one filed under 28 U.S.C. § 2254, which is the sole mechanism for obtaining 17 federal habeas relief by those confined on state court convictions. Id. at 2–3. Much like in his 18 prior habeas action, the proposed petition in this case indicated Petitioner did not exhaust 19 available state court remedies before seeking federal habeas relief. Id. at 3 (citing Dkt. 1-1 at 2– 20 3, 5 (answering “no” to inquiries about prior appeals and representing that “this filing constitutes 21 Appeal”)). 22 As such, the Court ordered Petitioner to show cause on or before August 9, 2024, why his 23 proposed petition should not be dismissed for failure to exhaust in accord with 28 U.S.C.

24 1 § 2254(b)–(c). Id. at 4. The deadline to show cause has now elapsed with no response received 2 from Petitioner. For that reason and for the reasons outlined in the order to show cause, this 3 action should be dismissed. 4 II. CONCLUSION

5 As set forth above, the undersigned recommends this action be dismissed without 6 prejudice for failure to exhaust state court remedies in accord with 28 U.S.C. § 2254(b)–(c). It is 7 further recommended Petitioner’s IFP motion (Dkt. 1) and all other pending motions and 8 requests (Dkts. 1-5, 1-8) be denied as moot and that a certificate of appealability be denied in this 9 case. 10 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties 11 shall have fourteen (14) days from service of this Report to file written objections. See also Fed. 12 R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of 13 de novo review by the District Judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of 14 those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda

15 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time 16 limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on August 17 28, 2024, as noted in the caption. 18 Dated this 13th day of August, 2024. 19 A 20 David W. Christel United States Magistrate Judge 21

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