Rouse v. Uttecht

• Court: District Court, W.D. Washington
• Decided: March 20, 2020
• Docket: 3:19-cv-06145
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DANIEL L. ROUSE, CASE NO. 3:19-cv-06145-BHS-JRC 11 Petitioner, 12 v. ORDER 13 JEFFREY A. UTTECHT, 14 Respondent. 15 16 The District Court has referred this action filed under 28 U.S.C. § 2254 to United States 17 Magistrate Judge J. Richard Creatura. On November 19, 2019, petitioner initiated this action 18 challenging his state court convictions and sentence. See Dkts. 1. 12. Respondent filed his 19 answer on January 27, 2020. Dkts. 17, 18. The Court has reviewed the petition, respondent’s 20 answer, and the state court record. See Dkts. 12, 17, 18. 21 In the answer, filed on January 27, 2020, respondent argues that petitioner has not yet 22 appealed his convictions or filed a petition for collateral relief, and therefore, the petition should 23 be dismissed without prejudice because petitioner still has an available state remedy. Dkt. 17. 24 1 However, since respondent filed the answer, petitioner’s time to file petition for collateral 2 attack in state court has passed. See Dkts. 12, 17, 18. See RCW § 10.73.090 (no petition or 3 motion for collateral attack may be filed more than one year after the judgment becomes final). If 4 petitioner did not file any form of collateral relief in state court on or before March 13, 2020, he

5 would be procedurally barred from doing so, and the petition should be dismissed with prejudice. 6 See id. Based on the record before the Court, it is not clear if petitioner sought collateral review 7 in state court, or if he has procedurally defaulted on all his claims. See Casey v. Moore, 386 F.3d 8 896, 920 (9th Cir. 2004); Eisermann v. Penarosa, 33 F. Supp. 2d 1269, 1274 (D. Haw. 1999) 9 (“[I]f a petitioner has never raised his federal claim to the highest state court available and is now 10 barred from doing so by a state procedural rule, exhaustion is satisfied because no state remedy 11 remains available, but the petitioner has procedurally defaulted on his claim.”). 12 Accordingly, the Court needs additional information to make a determination on the 13 petition. The Court orders respondent to supplement his answer and inform the Court whether 14 petitioner’s claims are procedurally defaulted. Respondent’s supplemental answer must be filed

15 on or before April 20, 2020. Petitioner’s supplemental response, if any, is due April 27, 2020. 16 The Clerk is ordered to re-note the petition for consideration on April 27, 2020. 17 Dated this 20th day of March, 2020. 18

19 A 20 J. Richard Creatura 21 United States Magistrate Judge