Ross v. Bennett

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 9 Petitioner, CASE NO. 3:24-cv-05528-TL-BAT 10 v. REPORT AND RECOMMENDATION 12 Respondent.

13 On August 5, 2024, the Honorable Tana Lin issued an order denying Petitioner’s request 14 to proceed in forma pauperis (IFP) and ordered dismissal of the case if Petitioner failed to pay 15 the $5.00 filing fee. Dkt. 5. Petitioner did not pay the filing fee and instead filed a notice of 16 appeal to Court of Appeals for the Ninth Circuit, on August 13, 2024. Dkt. 13. 17 On August 20, 2024, the Ninth Circuit issued a notice that no briefing schedule would be 18 set until the either the District Court or the Circuit determined whether a certificate of 19 appealability (COA) should be issued. Dkt. 16. 20 The Court first recommends an order of dismissal and judgment be entered because 21 Petitioner has failed to abide by Judge Lin’s order to pay the $5.00 filing fee. While Petitioner 22 has filed a number of pleadings after Judge Lin ordered he pay the filing fee, none of his 23 pleadings regard whether he has the ability to pay the filing fee. 1 The Court next recommends that issuance of a COA be denied. The Ninth Circuit’s 2 notice (Dkt. 16) implies the Court should address issuance of a COA. Petitioner requests habeas 3 relief under 28 U.S.C. § 2241, but the relief he seeks—release for “illegal detention” based upon 4 the validity of his conviction and sentence—is relief available only via a § 2254 habeas petition.

5 A prisoner seeking post-conviction relief under § 2254 may appeal a district court’s dismissal of 6 the petition only after obtaining a certificate of appealability (“COA”) from a district or circuit 7 judge. A COA may be issued only where a petitioner has made “a substantial showing of the 8 denial of a constitutional right.” See 28 U.S.C. § 2253(c)(3). A prisoner satisfies this standard 9 “by demonstrating that jurists of reason could disagree with the district court’s resolution of his 10 constitutional claims or that jurists could conclude the issues presented are adequate to deserve 11 encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 12 The Court finds issuance of a COA should be denied for three reasons. First, no 13 reasonable jurist would disagree Petitioner has the ability to pay the $5.00 filing fee and failed to 14 do so as directed by the Court.

15 Second, Petitioner contends he was convicted in a state court and is “illegally” detained 16 because his Fourth Amendment rights were violated due to an unreasonable search and seizure 17 and because probable cause did not support issuance of a warrant. See Dkt. 1 (memorandum). 18 Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment 19 claim, a state prisoner may not be granted federal habeas corpus relief on the ground that 20 evidence obtained in an unconstitutional search or seizure was introduced at his trial. Here, 21 Petitioner had an opportunity to litigate his unlawful search and seizure claim in the state courts. 22 “The Washington Criminal Rules for Superior Court provide for a full and fair opportunity to 23 litigate Fourth Amendment claims.” Hunter v. Miller-Stout, No. C12–5517 RBL-KLS, 2013 WL 1 1966168, at *14 (W.D. Wash. Apr. 23, 2013), report and recommendation adopted, 2013 WL 2 1964928 (W.D. Wash. May 10, 2013); see also Washington State Criminal Procedure Rule CrR 3 3.6. 4 And third, the Clallam County Superior Court’s records show Petitioner pleaded guilty to

5 the crimes for which he was convicted and sentenced.1 A petitioner who pleads guilty cannot 6 challenge pre-plea constitutional violations on habeas corpus. Tollett v. Henderson, 411 U.S. 7 258, 267 (1973); Hudson v. Moran, 760 F.2d 1027, 1029–30 (9th Cir.1985). For this additional 8 reason, Petitioner’s claim his Fourth Amendment rights were violated should be dismissed with 9 prejudice. 11 This Report and Recommendation is not an appealable order. Therefore, a notice of 12 appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the 13 assigned District Judge enters a judgment in the case. 14 Objections, however, may be filed no later than September 10, 2024. The Clerk shall

15 note the matter for September 13, 2024, as ready for the District Judge’s consideration. The 16 failure to timely object may affect the right to appeal. 17 DATED this 27th day of September, 2024. 18 A 19 BRIAN A. TSUCHIDA United States Magistrate Judge 20

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1 See Search Results (wa.gov)