Warner v. Bennett

• Court: District Court, W.D. Washington
• Decided: September 5, 2024
• Docket: 3:24-cv-05537
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 MARK BRIAN WARNER, 9 Petitioner, Case No. C24-5537-RSM-SKV 10 v. REPORT AND RECOMMENDATION 11 JASON BENNETT, 12 Respondent. 13

14 I. INTRODUCTION 15 Petitioner Mark Warner is a state prisoner who is currently confined at the Stafford Creek 16 Corrections Center in Aberdeen, Washington, pursuant to a judgment and sentence entered in 17 Kitsap County Superior Court case number 19-1-01710-18. Dkt. 5 at 1. Petitioner filed a 18 petition for writ of habeas corpus under 28 U.S.C. § 2241 in which he challenges the validity of 19 his current custody, asserting that former RCW 9.94A.507 is unconstitutional on its face and 20 violates his Sixth Amendment right to a jury trial. Id. at 6. He seeks to have this Court 21 determine whether state law violates federal law and to “issue an unconditional writ releasing 22 [him] from custody.” Id. at 7. 23 // 1 On July 11, 2024, the Court issued an Order to Show Cause as to why the Petitioner’s 2 petition should not be dismissed for failure to exhaust state court remedies. Dkt. 9. The Court 3 noted that if Petitioner failed to timely respond to the Order, it would recommend that this matter 4 be dismissed. To date, Petitioner has not responded to the Court’s Order. The Court now

5 recommends dismissal. 6 II. DISCUSSION 7 The Ninth Circuit has held that “28 U.S.C. § 2254 is the exclusive vehicle for a habeas 8 petition by a state prisoner in custody pursuant to a state court judgment.” White v. Lambert, 370 9 F.3d 1002, 1009-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 10 F.3d 546 (9th Cir. 2010) (en banc). Petitioner’s petition for writ of habeas corpus is therefore 11 properly construed as one brought pursuant to § 2254. To obtain relief under § 2254, a petitioner 12 must demonstrate that each of his claims for federal habeas relief has been properly exhausted in 13 the state courts. 28 U.S.C. § 2254(b)-(c). The exhaustion requirement is a matter of comity, 14 intended to afford the state courts “an initial opportunity to pass upon and correct alleged

15 violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal 16 quotation marks and citations omitted). To provide the state courts with the requisite 17 “opportunity” to consider his federal claims, a prisoner must “fairly present” his claims to each 18 appropriate state court for review, including a state supreme court with powers of discretionary 19 review. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 20 (1995), and O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). 21 In this case, Petitioner makes clear that he has not presented the issue raised in his 22 petition to any state appellate court for review. Dkt. 5 at 2-7. His claim is therefore unexhausted 23 1 and not currently eligible for federal habeas review. The Court should accordingly dismiss the 2 petition. 3 III. CERTIFICATE OF APPEALABILITY 4 A petitioner seeking post-conviction relief under § 2254 may appeal a district court’s

5 dismissal of his federal habeas petition only after obtaining a certificate of appealability from a 6 district or circuit judge. A certificate of appealability may issue only where a petitioner has 7 made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A 8 petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with the 9 district court’s resolution of his constitutional claims or that jurists could conclude the issues 10 presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 11 U.S. 322, 327 (2003). The Court should find Petitioner has not met this standard and should 12 accordingly deny Petitioner a certificate of appealability. 13 IV. CONCLUSION 14 Because Petitioner failed to respond to the Court’s Order, Dkt. 9, and because his claims

15 for federal habeas relief have not been properly exhausted in the state courts, the Court 16 recommends Petitioner’s habeas petition be dismissed. The Court further recommends that a 17 certificate of appealability be denied. A proposed order accompanies this Report and 18 Recommendation. 19 V. OBJECTIONS 20 Objections to this Report and Recommendation, if any, should be filed with the Clerk and 21 served upon all parties to this suit not later than fourteen (14) days from the date on which this 22 Report and Recommendation is signed. Failure to file objections within the specified time may 23 affect your right to appeal. Objections should be noted for consideration on the District Judge’s 1 motions calendar fourteen (14) days from the date they are filed. Responses to objections may 2 be filed by the day before the noting date. If no timely objections are filed, the matter will be 3 ready for consideration by the District Judge on September 26, 2024. 4 Dated this 5th day of September, 2024.

5 A 6 S. KATE VAUGHAN United States Magistrate Judge 7

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