Smith v. Holbrook

Opinion

1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Jun 29, 2021 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 JEREMIAH A. SMITH, also known as 2:21-cv-00103-SAB 10 Glenn Akers, 11 Petitioner, ORDER SUMMARILY 12 v. DISMISSING HABEAS ACTION 13 14 DONALD HOLBROOK, 15 Respondent. 16 17 18 Before the Court is Petitioner’s First Amended Petition for Writ of Habeas 19 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. ECF No. 5. 20 Petitioner, a prisoner at the Washington State Penitentiary, is proceeding pro se. The 21 filing fee was paid. Respondent has not been served. 22 By Order filed April 26, 2021, the Court directed Mr. Smith to amend his 23 petition to demonstrate that he fully exhausted his state court remedies as to each of 24 his federal habeas claims. ECF No. 4 at 4–5; O’Sullivan v. Boerckel, 526 U.S. 838, 25 839 (1999) (“Federal habeas relief is available to state prisoners only after they have 26 exhausted their claims in state court.”). A review of Petitioner’s 248 pages of 27 submissions shows that he did not exhaust those remedies prior to the submission of 28 his Petition for Writ of Habeas Corpus on March 2, 2021. 1 EXHAUSTION REQUIREMENT 2 Petitioner challenges his 2018 Spokane County bench trial convictions for 3 First-Degree Burglary, First-Degree Felony Murder, First-Degree Assault, and 4 Unlawful Possession of a Firearm. ECF No. 5 at 19. He was sentenced to life in 5 prison without the possibility of parole on July 12, 2018. Id. Petitioner indicates that 6 he appealed his convictions and sentence, and they were affirmed on February 16, 7 2021. ECF No. 5 at 19. Division III of the Washington State Court of Appeals denied 8 his Motion for Reconsideration on April 6, 2021. See id. at 14, 19. Petitioner avers 9 that he filed “in Supreme Court May 6, 2021[,] raising 6 issues,” although he asserts 10 “these issues are separate from the Grounds in Habeas Corpus.” Id. at 18. 11 In addition to adding several habeas claims in his First Amended Petition, 12 ECF No. 5, Petitioner failed to demonstrate that each of those claims were exhausted 13 by appeal to the Washington State Supreme Court. Petitioner has shown that his 14 direct appeal was still pending at the time he filed the present habeas corpus action. 15 ECF No. 5 at 14, 18. Indeed, the appellate court indicated there was an important 16 constitutional issue that the Washington State Supreme Court should address. See 17 id. at 15, 16–17, 19. 18 Petitioner admits that he did not present each of his federal habeas claims to 19 the Washington State Supreme Court, asserting a belief that the Washington State 20 Supreme Court “did not feel issues were of value enough to review.” See ECF No. 21 5 at 18, 80. Because it is clear from Petitioner’s submissions that he did not present 22 his claims to the state’s highest court, he has not exhausted his state court remedies. 23 See Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also Duncan v. Henry, 513 U.S. 24 364, 365–66 (1995). Accordingly, this action is dismissed without prejudice for 25 failure to exhaust state court remedies. O’Sullivan, 526 U.S. at 839. 26 // 27 // 28 // 1 For the reasons set forth above, and in the Order to Amend Petition, EC No. 4, IT HEREBY IS ORDERED: 3 1. This action is DISMISSED WITHOUT PREJUDICE for failure t exhaust state court remedies. 5 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, provide copies to Petitioner, and close the file. The Court certifie that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not b 8|taken in good faith, and there is no basis upon which to issue a certificate o 9)| appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate o appealability is therefore DENIED. 11 DATED this 29th day of June 2021. 12 13 14 ‘ Sfrock yl toar 16 Stanley A. Bastian 17 Chief United States District Judge 18 19 20 21 22 23 24 25 26 27 28

OARNER CIINIMA RIT V NICNITICCING DARBPAC ACTION «2