Smith v. Uttecht

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 ALAN JUSTIN SMITH, CASE NO. 2:21-cv-00940-TL 12 Petitioner, ORDER ADOPTING REPORT AND v. RECOMMENDATION AND 13 JEFFREY UTTECHT, DENYING PETITIONER’S MOTION 14 TO EXPEDITE INJUNCTIVE RELIEF Respondent. 15

16 17 This matter comes before the Court on the Report and Recommendation (R&R) of the 18 Honorable S. Kate Vaughan, United States Magistrate Judge (Dkt. No. 37) and Petitioner Alan 19 Smith’s objections to the Report and Recommendation (Dkt. Nos. 41 and 42). Petitioner also 20 filed an Ex Parte Motion to Expedite Injunctive Relief from Collateral Consequences of 21 Conviction (Dkt. No. 42). Having reviewed the Report and Recommendation, Petitioner’s 22 objections, Respondent’s response to the objections (Dkt. No. 50), and the remaining record, the 23 Court ADOPTS the Report and Recommendation and OVERRULES the objections. The Court also 24 DENIES Petitioner’s request for injunctive relief. 1 I. BACKGROUND 2 On May 3, 2022, Mr. Smith moved for an extension of time to file objections to the 3 R&R, and on May 23, 2022, the Court granted his motion, extending his time to file objections 4 to July 5, 2022. Dkt. No. 40. On May 27, 2022, Petitioner filed a motion to amend his motion for

5 extension of time. Dkt. No. 41. The Court struck the motion to amend as it had already granted 6 Petitioner the requested extension. 7 On July 8, 2022, Mr. Smith filed an Ex Parte Motion to Expedite Injunctive Relief from 8 Collateral Consequences of Conviction (Dkt. No. 42) under seal that, while going beyond 9 providing objections to the R&R, did include responses to the R&R. The Court will treat the 10 motion filed on July 8th as an objection. While Mr. Smith’s objections were filed three days late, 11 “courts must apply considerable leeway when assessing . . . a pro se civil rights litigants' failure 12 to comply strictly with time limits.” McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir.1992), 13 overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997). 14 Therefore, the Court will consider the July 8th objections.

15 On August 4, 2022, the Court ordered Mr. Smith’s Ex Parte Motion unsealed as he did 16 not meet the requirements for his motion to be filed under seal or ex parte. Dkt. No. 46. Since 17 Mr. Smith also raised arguments regarding the R&R in his motion to amend (Dkt. No. 41), the 18 Court collectively treats his pleadings at Dkt. No. 41 and 42 as his objections to the R&R1 and 19 ordered Respondent to file responses to both by August 18, 2022 (Dkt. No. 46). Respondent filed 20 a response on August 11, 2022. Dkt. No 50. 21

22 1 Mr. Smith noted in his Ex Parte Motion that he “intend[ed] to file a separate notice of intent to file memorandum of law pertaining to my habeas grounds.” Dkt. No. 42-1 at 8. It is unclear whether Mr. Smith was referring to additional objections to the R&R but if he was, the deadline for the objections had already been extended with no 23 further extension being requested as of the already extended due date, he submitted eighteen pages of argument regarding the R&R with his prior pleadings, see Dkt. No. 41 at 3-20 and Dkt. No. 42-1 at 8-12, and he has not filed 24 any further pleadings related to the R&R as of the date of this Order. 1 II. DISCUSSION 2 A district court “shall make a de novo determination of those portions of the report or 3 specified proposed findings or recommendations to which objection is made.” 28 U.S.C. 4 § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (“[The Court] must determine de novo any part of

5 the magistrate judge’s disposition that has been properly objected to.”). “The district judge may 6 accept, reject, or modify the recommended disposition; receive further evidence; or return the 7 matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); accord 28 U.S.C. 8 § 636(b)(1). A party properly objects when the party files “specific written objections” to the 9 report and recommendation as required under Federal Rule of Civil Procedure 72(b)(2). 10 A. Objections to the R&R 11 Mr. Smith’s objections focus on: (1) the alleged insufficiency of evidence to support his 12 conviction; (2) the violation of his due process rights in obtaining and using his confession; and 13 (3) various challenges which allegedly resulted in cumulative error.2 Dkt. No. 41 at 10-19; Dkt. 14 No. 42-1 at 9-11. In his objections, Mr. Smith claims that the State conceded in state court

15 proceedings that he was the wrong defendant (Dkt. No. 41 at 4), but Respondent states the State 16 made no such concession (Dkt. No. 50 at 4). The Court sees no evidence of any such concession 17 in the record. Mr. Smith’s objections otherwise do not raise any new grounds that have not 18 already been thoroughly addressed by the R&R. The Court will not repeat the analysis from the 19 R&R here. Rather, the Court will adopt the Report and Recommendation. 20 B. Challenges to the Removal of Mr. Smith’s Children 21 Mr. Smith also raises various objections to the dependency and guardianship proceedings 22 that resulted in the removal of his children from his custody. The Court notes that Mr. Smith has 23 2 Mr. Smith also includes arguments regarding the removal of his children that are not responsive to the R&R. The 24 Court addresses this issue in Section II.B. 1 an ongoing civil rights case in this District with regard to the removal of his children. See Smith 2 v. Hentschel et al, No. 2:21-cv-01597 (W.D. Wash.). The issues raised in his objection with 3 regard to the removal of his children are the same, similar to, or stem from those raised in his 4 civil rights case. Habeas corpus petitions only address whether a person is “in custody in

5 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 6 Therefore, it is inappropriate to amend his petition to merge the issues regarding the removal of 7 Mr. Smith’s children into this case or to seek injunctive relief to secure the return of his children 8 through the habeas petition. Any such issues should be addressed through his already pending 9 civil rights case. 10 III. ORDER 11 For the foregoing reasons, the Court hereby ORDERS: 12 1. Petitioner’s request for injunctive relief or to amend the petition (Dkt. No. 42) is 13 DENIED. 14 2. The Report and Recommendation is APPROVED and ADOPTED.

15 3. Petitioner’s objections (Dkt. Nos. 41 and 42) are OVERRULED. 16 4. Petitioner’s second amended petition for writ of habeas corpus (Dkt. 24) is 17 DENIED, and this action is DISMISSED with prejudice. 18 5. In accordance with Rule 11 of the Rules Governing Section 2254 Cases in the 19 United States District Courts, a certificate of appealability is DENIED. 20 6. The Clerk is directed to send copies of this Order to Petitioner, to counsel for 21 Respondent, and to the Honorable S. Kate Vaughan. 22 23

24 1 Dated this 12th day of August 2022. 2 A 3 Tana Lin United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24