Stanley v. Uttecht

• Court: District Court, W.D. Washington
• Decided: May 14, 2021
• Docket: 3:20-cv-05399
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 SLOAN STANLEY, CASE NO. C20-5399-JCC 10 Petitioner, ORDER 11 v. 12 JEFFREY UTTECHT, 13 Respondent. 14

15 This matter comes before the Court on Petitioner Sloan Stanley’s objections (Dkt. No. 16 36) to the Report and Recommendation (R&R) of the Honorable J. Richard Creatura, Chief 17 United States Magistrate Judge (Dkt. No. 35). Having thoroughly considered the R&R and the 18 relevant record, the Court finds oral argument unnecessary and hereby OVERRULES 19 Petitioner’s objections and ADOPTS the R&R for the reasons explained herein. 20 I. BACKGROUND 21 Judge Creatura’s R&R sets forth the underlying facts of the case and the Court will not 22 repeat them here except as relevant. (See Dkt. No. 35 at 2–4.) Petitioner brings this 28 U.S.C. 23 § 2254 habeas action to challenge his 2015 cyberstalking conviction. (See generally Dkt. Nos. 24 16, 17.) Petitioner argues that the cyberstalking statute under which he was convicted is 25 unconstitutionally overbroad and vague in violation of the First Amendment. (Dkt. Nos. 7 at 6- 26 40, 16 at 5.) Petitioner finished serving his sentence on the 2015 cyberstalking conviction in 1 August 2017. (Dkt. No. 27-1 at 33.) When he filed this § 2254 petition, he was serving a 2 sentence for a 2018 felony harassment conviction that was enhanced based on his prior 3 cyberstalking conviction. (Id. at 532, 537.) Judge Creatura recommends the Court dismiss Mr. 4 Stanley’s petition with prejudice and decline to issue a certificate of appealability. (Dkt. No. 35 5 at 13.) 6 II. DISCUSSION 7 A. Legal Standard 8 A district court reviews de novo those portions of a report and recommendation to which 9 a party objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections are required to 10 enable the district court to “focus attention on those issues—factual and legal—that are at the 11 heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). General objections, or 12 summaries of arguments previously presented, have the same effect as no objection at all, since 13 the court’s attention is not focused on any specific issues for review. See United States v. 14 Midgette, 478 F.3d 616, 622 (4th Cir. 2007). “The district judge may accept, reject, or modify 15 the recommended disposition; receive further evidence; or return the matter to the magistrate 16 judge with instructions.” Fed. R. Civ. P. 72(b)(3). 17 B. The “In Custody” Requirement 18 A habeas petitioner must be in custody under the conviction or sentence that he is 19 attacking at the time the petition is filed. 28 U.S.C. § 2254(a). This requirement is jurisdictional. 20 Maleng v. Cook, 49 U.S. 488, 490 (1989). A petitioner is not “‘in custody’ under a conviction 21 whose sentence has fully expired at the time his petition is filed, simply because that conviction 22 has been used to enhance the length of a current or future sentence imposed for a subsequent 23 conviction.” Id. at 491. 24 When a pro se prisoner’s petition can be construed as asserting not a direct challenge to 25 an expired conviction but rather, a challenge to a present sentence that is enhanced by an 26 allegedly unlawful expired sentence, then the Court should so construe it rather than dismissing 1 the petition for lack of subject matter jurisdiction. See id. at 493. But even in those 2 circumstances, although the “in custody” requirement is satisfied, the Court generally must still 3 dismiss the petition because § 2254 does not provide a remedy where a current sentence was 4 enhanced on the basis of an allegedly unconstitutional prior conviction for which the sentence 5 has fully expired. Lackawanna Cty. v. Coss, 532 U.S. 394, 403–04 (2001). Once a state 6 conviction is no longer open to direct or collateral attack in its own right, the conviction may be 7 regarded as conclusively valid, even if used to enhance a criminal sentence in a later case. Id. 8 The Supreme Court articulated an exception to this general rule where the alleged 9 constitutional violation in the prior criminal proceeding involved the failure to appoint counsel in 10 violation of the Sixth Amendment. Id. Additionally, the Supreme Court identified two other 11 possible exceptions: (1) when a petitioner cannot not be faulted for failing to obtain a timely 12 review of a constitutional claim and (2) when a petitioner obtains “compelling evidence that he is 13 actually innocent of the crime for which he was convicted, and which he could not have 14 uncovered in a timely manner.” Id. at 407. The Ninth Circuit recognized the former exception in 15 Dubrin v. California, holding that when a state court “without justification refuses to rule on a 16 constitutional claim that has been properly presented to it,” the Lackawanna bar does not apply. 17 720 F.3d 1095, 1099 (9th Cir. 2013). Additionally, the Ninth Circuit has held that a habeas 18 petitioner is “in custody” for purposes of challenging an earlier expired conviction as long as the 19 prior offense was a “necessary predicate” for a current conviction or sentence. Zichko v. Idaho, 20 247 F.3d 1015, 1019 (9th Cir. 2001). 21 Judge Creatura concluded that Petitioner may not challenge his 2015 conviction directly 22 because he does not meet the “in custody” requirement and therefore the Court lacks subject 23 matter jurisdiction. (Dkt. No. 35 at 2, 5–7.) Judge Creatura also concluded that the petition here 24 cannot reasonably be construed as attacking Petitioner’s present enhanced sentence, but even if it 25 could, none of the exceptions to the Lackawanna bar apply. (Id. at 9.) Petitioner filed objections 26 to Judge Creatura’s R&R. (Dkt. No. 36.) 1 C. Petitioner’s Objections 2 Petitioner lodged a number of general objections to Judge Creatura’s R&R, which the 3 Court will not address. See Ali v. Grounds, 236 F. Supp. 3d 1241, 1249 (S.D. Cal. 2017) (citing 4 Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984)). He also lodged the following specific objections: 5 (1) Judge Creatura erred by finding that Petitioner had a “full and fair opportunity” to have his 6 arguments considered by the state court and therefore the Dubrin exception is inapplicable; (2) 7 Judge Creatura erred by failing to consider his actual innocence argument; and (3) Judge 8 Creatura erred by not considering whether the Zichko exception applies. 9 1. Full and Fair Opportunity 10 Petitioner argues that Judge Creatura erred by finding that the Dubrin exception to the 11 Lackawanna bar is not applicable in this case. The Ninth Circuit in Dubrin held that a petitioner 12 could challenge a conviction on the basis that it was enhanced by a prior unconstitutional 13 conviction when state courts, without justification, refuse to rule on a constitutional claim 14 presented to them. 720 F.3d at 1098 (quoting Lackawanna, 532 U.S. at 405). Judge Creatura 15 determined that Petitioner makes essentially the same arguments that were already considered 16 and rejected by the state courts. Accordingly, Judge Creatura found that Dubrin was not 17 applicable because Petitioner had a “fair and full opportunity” to have his arguments heard in 18 state court. 19 As an initial matter, Petitioner reiterates his argument that Dubrin applies because 20 Petitioner was released from custody before he could bring a habeas petition. (Dkt. No. 36 at 11.) 21 However, the relevant consideration under Dubrin is not whether the petitioner was afforded the 22 opportunity to present his case in federal court, but whether a state court “without justification, 23 refuse[d] to rule on a constitutional claim that has been properly presented” to it. Dubrin, 720 24 F.3d at 1098 (quoting Lackawanna, 532 U.S. at 405). Accordingly, the procedural requirements 25 that prevented Petitioner from filing this petition in federal court while still in custody for his 26 2015 conviction do not affect the Dubrin analysis. 1 Petitioner also objects to Judge Creatura’s determination on the basis that the arguments 2 he makes in his current petition are different than the arguments he presented in his state court 3 appeal. (Dkt. No. 36 at 14.) Specifically, he argues that he was denied a “full and fair 4 opportunity” to have his claims considered by the state court because his current petition focuses 5 on a different provision of the statute. Id. at 15. However, this argument is not persuasive 6 because by Petitioner’s own admission “the overbreadth and vagueness claim I now bring has the 7 same substantive principles as the claim my appellate attorney brought.” (Dkt. No. 17 at 12.) 8 Moreover, Petitioner admits “the substance of my federal habeas corpus claim has been fairly 9 presented to the state courts” Id. at 14. Accordingly, Judge Creatura correctly found that 10 Petitioner has had the opportunity to litigate his claims in the state forum. (Dkt. No. 35 at 10.) 11 Next, Petitioner argues that there is “virtually no difference between Dubrin and the 12 current case” because the state court made a “clearly erroneous ruling” when considering his 13 claim. (Dkt. No. 36 at 14.) However, as Judge Creatura correctly pointed out, Petitioner received 14 a full substantive review of his arguments challenging his 2015 conviction on the merits. (See 15 generally Dkt. No. 27-1.) These circumstances are a far cry from Dubrin, where the state courts 16 summarily dismissed the petitioner’s state habeas petition based on the erroneous conclusion that 17 he was not “in custody” and did not reach the merits of his claim. 720 F.3d at 1096. This is not a 18 situation where this Court is the “first and only forum available for review of [his] prior 19 conviction.” Id. at 1099. Additionally, unlike in Dubrin, there was no clear error made by the 20 state court. (Dkt. No. 27-1.) Simply because Petitioner disagrees with the appellate court’s 21 judgment does not make it “clearly erroneous.” 22 The Court agrees with Judge Creatura’s recommendation and concludes that the Dubrin 23 exception does not apply to this case. 24 2. Actual Innocence 25 Petitioner also claims that Judge Creatura erred by not considering his actual innocence 26 argument. The Supreme Court in Lackawanna held that a Petitioner could not use a habeas 1 petition to challenge a sentence that was enhanced due to an allegedly unconstitutionally 2 obtained prior sentence. 532 U.S. at 404. However, the Supreme Court left open whether a 3 petitioner could challenge an enhanced sentence after the time for direct or collateral review has 4 expired when a defendant obtains “compelling evidence that he is actually innocent of the crime 5 for which he was convicted, and which he could not have uncovered in a timely manner.” Id. at 6 407. 7 Petitioner claims that he has compelling evidence of his actual innocence that he could 8 not have uncovered in a timely manner. (Dkt. No. 32 at 39.) The “new evidence” presented by 9 Petitioner is that (1) the jury was not presented all of the messages between Petitioner and the 10 victims, and (2) the jury instructions were flawed because they did not allow the jury to evaluate 11 the messages for subjective intent. Id. This “evidence” is not new. Petitioner argued that the jury 12 should be instructed on subjective intent during his trial in 2015. (Dkt. No. 27-1 at 46.) A valid 13 claim of actual innocence requires a petitioner to introduce new reliable evidence, such as 14 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence, 15 proving he is factually innocent. Schlup v. Delo, 513 U.S. 298, 324 (1995). 16 Additionally, Petitioner confuses legal innocence with factual innocence. To successfully 17 establish an actual innocence claim, a petitioner must establish factual innocence, not mere legal 18 insufficiency. Jaramillo v. Stewart, 340 F.3d 877, 882-883 (9th Cir. 2003); see also Reiswig v. 19 Miller, 2013 WL 3779735, slip op. at 2 (C.D. Cal. 2013) (petitioner did not have an actual 20 innocence claim when she “merely regurgitated her contentions that the … convictions resulted 21 from erroneous jury instructions” which went to “the issue of petitioner’s legal innocence, not 22 her actual innocence”); Rodriguez v. Pacholke, 2008 WL 2562924, slip op. at 1 (E.D. Wash. 23 2008) (petitioner’s conclusory allegation of legal innocence was insufficient to demonstrate 24 actual innocence); Booker v. Ryan, 2013 WL 5913808, slip op. at 2–3 (D. Ariz. 2013) 25 (petitioner’s actual innocence claim rejected because petitioner’s argument that the jury was not 26 properly instructed is purely legal and did not involve evidence that was not available or 1 presented at trial). Petitioner does not provide new evidence that he is factually innocent. Instead, 2 he claims that “the prior evidence is to be presented in such a way that it takes on the form of 3 evidence that was effectively never presented to the trial jury.” (Dkt. No. 32 at 40.) This 4 argument does not establish that the Lackawanna actual innocence exception applies because the 5 exception requires new evidence that he could not have uncovered in a timely manner. 532 U.S. 6 at 407. 7 3. Positively and Demonstrably Related 8 Finally, Petitioner argues that Judge Creatura erred by not considering whether he is “in 9 custody” under Zichko. (Dkt. No. 36 at 20–21.) Zichko involved a petitioner who attempted to 10 challenge his underlying expired rape conviction while he was in custody for failing to register 11 as a sex offender. Zichko v. Idaho, 47 F.3d 1015, 1018 (9th Cir. 2001). The court allowed him to 12 challenge the underlying offense because the expired rape conviction was a “necessary 13 predicate” for his conviction for failing to register. Id. at 1019. Petitioner claims Zichko is 14 applicable because his two offenses are “positively and demonstrably related.” (Dkt. No. 36 at 15 20–21.) He argues that the Zichko exception applies because (1) the evidence from his 2015 16 conviction was used in the prosecution of his 2018 offense and (2) the victims in his 2018 17 offense were either involved in the prosecution of his 2015 offense or were previous victims. Id. 18 However, unlike in Zichko, Petitioner’s 2015 conviction was not a necessary predicate to his 19 2018 conviction. Petitioner could have committed the offense of felony harassment for which he 20 was convicted in 2018 even if he had not been convicted in 2015. Accordingly, Zichko does not 21 apply to this case. 22 III. CONCLUSION 23 For the foregoing reasons, the Court hereby FINDS and ORDERS as follows: 24 1. Petitioner’s objections (Dkt. No. 36) to the R&R are OVERRULED; 25 2. The Court ADOPTS the R&R (Dkt. No. 35); 26 3. The habeas petition (Dkt. No. 16) and this action are DISMISSED with prejudice; 1 4. A certificate of appealability is denied; 2 5. The Clerk is DIRECTED to send copies of this order to the parties and to Judge 3 Creatura and to close this case. 4 DATED this 14th day of May 2021. A 5 6 7 John C. Coughenour 8 UNITED STATES DISTRICT JUDGE

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