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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:19-cv-05819-BHS-JRC 11 Petitioner, ORDER TO SHOW CAUSE OR 12 v. AMEND PETITION AND DENYING MOTION FOR 13 STATE OF WASHINGTON, APPOINTMENT OF COUNSEL 14 Respondent. 15 16 The District Court has referred this matter to United States Magistrate Judge J. Richard 17 Creatura as authorized by 28 U.S.C. § 636(b)(1)(A) and (B) and local Magistrate Judge Rules 18 MJR3 and MJR4. This matter is before the Court on a petition for writ of habeas corpus under 19 28 U.S.C. § 2241. Dkt. 9, at 1. 20 Because petitioner states that he has not filed any motion or otherwise sought state court 21 review of the issues raised in his petition and because his grounds would require this Court to 22 interfere in a pending State criminal proceeding, doctrines of exhaustion and abstention bar the 23 Court from considering petitioner’s claims. Petitioner also fails to show that the appointment of 24 1 counsel is appropriate at this early stage. Therefore, the Court denies without prejudice 2 petitioner’s motion for the appointment of counsel and orders petitioner to adequately address 3 the issues herein or file an amended petition on or before December 13, 2019. 4
6 Petitioner, who proceeds pro se and is incarcerated at Lewis County Jail, states that he is 7 a pretrial detainee (Dkt. 9, at 1) seeking dismissal of his charges of possession of a stolen vehicle 8 and a controlled substance. Dkt. 1-1, at 7. He also requests the return of seized property. Dkt. 9 1-1, at 7. Petitioner’s grounds for relief are “due process” and “incarceration and seizure of 10 property without determining guilt.” Dkt 9, at 5. 11 Regarding his pending charges, petitioner states that on March 1, 2019, he was arrested 12 and taken into custody at Lewis County Jail. Dkt. 1-1, at 9. After being “bailed out” on the 13 Lewis County charges and released from Lewis County Jail, petitioner was taken into custody in 14 Thurston County “on a separate matter.” Dkt. 1-1, at 9. Petitioner states that although “bail was
15 granted” on the Thurston County charges, he was not released from Thurston County but was 16 transferred back to Lewis County on a failure to appear charge. Dkt. 1-1, at 9. Petitioner alleges 17 that he was not at fault for the alleged failure to appear, as he was “held in the custody of 18 [Thurston County], who was in frequent contact with Lewis County [and] should have been fully 19 aware of the petitioner[’s] whereabouts.” Dkt. 1-1, at 9. Petitioner also alleges that “the 20 prosecution” falsified reports that petitioner expressed an intent to flee prosecution and/or 21 commit new crimes upon release. Dkt. 1-1, at 9. Further, petitioner states that he is being 22 improperly held without bail. See Dkt. 1-1, at 9. 23
24 1 Petitioner states that he has not sought any type of review of his claims other than by writ 2 of habeas corpus in this Court. See Dkt. 1-1, at 5. 3
5 The matter is now before the Court on preliminary review of the petition to determine 6 whether “it plainly appears from the face of the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 8 Cases; see also 28 U.S.C. § 2243 (Rules Governing Section 2254 cases may also be applied to 9 habeas corpus actions filed under § 2241). 10 11 I. Failure to Exhaust 12 “[A] state prisoner must normally exhaust available state judicial remedies before a 13 federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 14 (1971). Petitioner’s claims will be considered exhausted only after “the state courts [have been
15 afforded] a meaningful opportunity to consider allegations of legal error without interference 16 from the federal judiciary.” Vasquez v. Hillery, 474 U.S. 254, 257 (1986). “[S]tate prisoners 17 must give the state courts one full opportunity to resolve any constitutional issues by invoking 18 one complete round of the State’s established appellate review.” O’Sullivan v. Boerckel, 526 19 U.S. 838, 845 (1999). 20 A habeas petition under § 2241 “challenges the execution of a criminal sentence on 21 grounds that a prisoner ‘is in custody in violation of the Constitution or laws or treaties of the 22 United States.’” Benny v. U.S. Parole Commission, 295 F.3d 977, 988 (9th Cir. 2002) (quoting 23 28 U.S.C. § 2241(c)(3)). Although 28 U.S.C. § 2241(c)(3) does not mandate an exhaustion
24 1 requirement, the Ninth Circuit Court of Appeals has held that exhaustion is necessary as a matter 2 of comity unless special circumstances warrant federal intervention prior to a state criminal trial. 3 Carden v. Montana, 626 F.2d 82, 83–84 (9th Cir. 1980). 4 Here, petitioner fails to show that he exhausted state court remedies by presenting federal
5 constitutional or statutory claims to the Washington state trial and appellate courts in the ongoing 6 criminal proceedings against him. Petitioner has also not shown that special circumstances 7 warrant federal intervention in this case. Therefore, petitioner must show cause why this case 8 should not be dismissed for failure to exhaust state remedies. 9 10 II. Younger Abstention 11 Petitioner’s case may also be inappropriate for review in federal court under the Younger 12 v. Harris abstention doctrine. See 401 U.S. 37 (1971); see also Dominguez v. Kernan, 906 F.3d 13 1127, 1131 (9th Cir. 2018). Younger abstention bars federal courts from staying or enjoining 14 pending state criminal court proceedings unless there are exceptional circumstances. Carden,
15 626 F.2d at 83. 16 Younger abstention is appropriate when “(1) there is ‘an ongoing state judicial 17 proceeding’; (2) the proceeding ‘implicate[s] important state interests’; (3) there is ‘an adequate 18 opportunity in the state proceedings to raise constitutional challenges’; and (4) the requested 19 relief ‘seek[s] to enjoin’ or has ‘the practical effect of enjoining’ the ongoing state judicial 20 proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (quoting ReadyLink 21 Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)). Federal courts do 22 not invoke the Younger abstention if there is a “showing of bad faith, harassment, or some other 23
24 1 extraordinary circumstance that would make abstention inappropriate.” Middlesex County Ethics 2 Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982). 3 Here, Younger abstention appears to apply. First, petitioner is a pre-trial detainee and is 4 in the midst of ongoing state criminal proceedings. Second, as these proceedings involve a
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:19-cv-05819-BHS-JRC 11 Petitioner, ORDER TO SHOW CAUSE OR 12 v. AMEND PETITION AND DENYING MOTION FOR 13 STATE OF WASHINGTON, APPOINTMENT OF COUNSEL 14 Respondent. 15 16 The District Court has referred this matter to United States Magistrate Judge J. Richard 17 Creatura as authorized by 28 U.S.C. § 636(b)(1)(A) and (B) and local Magistrate Judge Rules 18 MJR3 and MJR4. This matter is before the Court on a petition for writ of habeas corpus under 19 28 U.S.C. § 2241. Dkt. 9, at 1. 20 Because petitioner states that he has not filed any motion or otherwise sought state court 21 review of the issues raised in his petition and because his grounds would require this Court to 22 interfere in a pending State criminal proceeding, doctrines of exhaustion and abstention bar the 23 Court from considering petitioner’s claims. Petitioner also fails to show that the appointment of 24 1 counsel is appropriate at this early stage. Therefore, the Court denies without prejudice 2 petitioner’s motion for the appointment of counsel and orders petitioner to adequately address 3 the issues herein or file an amended petition on or before December 13, 2019. 4
6 Petitioner, who proceeds pro se and is incarcerated at Lewis County Jail, states that he is 7 a pretrial detainee (Dkt. 9, at 1) seeking dismissal of his charges of possession of a stolen vehicle 8 and a controlled substance. Dkt. 1-1, at 7. He also requests the return of seized property. Dkt. 9 1-1, at 7. Petitioner’s grounds for relief are “due process” and “incarceration and seizure of 10 property without determining guilt.” Dkt 9, at 5. 11 Regarding his pending charges, petitioner states that on March 1, 2019, he was arrested 12 and taken into custody at Lewis County Jail. Dkt. 1-1, at 9. After being “bailed out” on the 13 Lewis County charges and released from Lewis County Jail, petitioner was taken into custody in 14 Thurston County “on a separate matter.” Dkt. 1-1, at 9. Petitioner states that although “bail was
15 granted” on the Thurston County charges, he was not released from Thurston County but was 16 transferred back to Lewis County on a failure to appear charge. Dkt. 1-1, at 9. Petitioner alleges 17 that he was not at fault for the alleged failure to appear, as he was “held in the custody of 18 [Thurston County], who was in frequent contact with Lewis County [and] should have been fully 19 aware of the petitioner[’s] whereabouts.” Dkt. 1-1, at 9. Petitioner also alleges that “the 20 prosecution” falsified reports that petitioner expressed an intent to flee prosecution and/or 21 commit new crimes upon release. Dkt. 1-1, at 9. Further, petitioner states that he is being 22 improperly held without bail. See Dkt. 1-1, at 9. 23
24 1 Petitioner states that he has not sought any type of review of his claims other than by writ 2 of habeas corpus in this Court. See Dkt. 1-1, at 5. 3
5 The matter is now before the Court on preliminary review of the petition to determine 6 whether “it plainly appears from the face of the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 8 Cases; see also 28 U.S.C. § 2243 (Rules Governing Section 2254 cases may also be applied to 9 habeas corpus actions filed under § 2241). 10 11 I. Failure to Exhaust 12 “[A] state prisoner must normally exhaust available state judicial remedies before a 13 federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 14 (1971). Petitioner’s claims will be considered exhausted only after “the state courts [have been
15 afforded] a meaningful opportunity to consider allegations of legal error without interference 16 from the federal judiciary.” Vasquez v. Hillery, 474 U.S. 254, 257 (1986). “[S]tate prisoners 17 must give the state courts one full opportunity to resolve any constitutional issues by invoking 18 one complete round of the State’s established appellate review.” O’Sullivan v. Boerckel, 526 19 U.S. 838, 845 (1999). 20 A habeas petition under § 2241 “challenges the execution of a criminal sentence on 21 grounds that a prisoner ‘is in custody in violation of the Constitution or laws or treaties of the 22 United States.’” Benny v. U.S. Parole Commission, 295 F.3d 977, 988 (9th Cir. 2002) (quoting 23 28 U.S.C. § 2241(c)(3)). Although 28 U.S.C. § 2241(c)(3) does not mandate an exhaustion
24 1 requirement, the Ninth Circuit Court of Appeals has held that exhaustion is necessary as a matter 2 of comity unless special circumstances warrant federal intervention prior to a state criminal trial. 3 Carden v. Montana, 626 F.2d 82, 83–84 (9th Cir. 1980). 4 Here, petitioner fails to show that he exhausted state court remedies by presenting federal
5 constitutional or statutory claims to the Washington state trial and appellate courts in the ongoing 6 criminal proceedings against him. Petitioner has also not shown that special circumstances 7 warrant federal intervention in this case. Therefore, petitioner must show cause why this case 8 should not be dismissed for failure to exhaust state remedies. 9 10 II. Younger Abstention 11 Petitioner’s case may also be inappropriate for review in federal court under the Younger 12 v. Harris abstention doctrine. See 401 U.S. 37 (1971); see also Dominguez v. Kernan, 906 F.3d 13 1127, 1131 (9th Cir. 2018). Younger abstention bars federal courts from staying or enjoining 14 pending state criminal court proceedings unless there are exceptional circumstances. Carden,
15 626 F.2d at 83. 16 Younger abstention is appropriate when “(1) there is ‘an ongoing state judicial 17 proceeding’; (2) the proceeding ‘implicate[s] important state interests’; (3) there is ‘an adequate 18 opportunity in the state proceedings to raise constitutional challenges’; and (4) the requested 19 relief ‘seek[s] to enjoin’ or has ‘the practical effect of enjoining’ the ongoing state judicial 20 proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (quoting ReadyLink 21 Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)). Federal courts do 22 not invoke the Younger abstention if there is a “showing of bad faith, harassment, or some other 23
24 1 extraordinary circumstance that would make abstention inappropriate.” Middlesex County Ethics 2 Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982). 3 Here, Younger abstention appears to apply. First, petitioner is a pre-trial detainee and is 4 in the midst of ongoing state criminal proceedings. Second, as these proceedings involve a
5 criminal prosecution, they implicate important state interests. See Kelly v. Robinson, 479 U.S. 6 36, 49 (1986); Younger, 401 U.S. at 43–44. Third, petitioner has failed to allege facts showing 7 that he has been denied an adequate opportunity to address the alleged constitutional violations 8 in the state court proceedings. Fourth, it is unclear if petitioner is raising claims that would 9 effectively enjoin the ongoing state judicial proceeding. It is unclear whether petitioner seeks to 10 bring an excessive bail claim under the Eighth Amendment. See Dkt. 1-1, at 9; see Arevalo, 882 11 F.3d at 766 (finding Younger abstention not appropriate where the issues raised challenged a bail 12 hearing). However, petitioner’s stated grounds for relief—violation of due process for lack of 13 evidence of guilt before incarcerating him and seizing property—would effectively enjoin the 14 ongoing criminal proceedings against him.
15 Therefore, because it is unclear on the face of the petition whether or not Younger 16 abstention may apply to petitioner’s claims, petitioner must show cause why this case should not 17 be dismissed under Younger. 18 19 III. Motion to Appoint Counsel 20 There is no constitutional right to counsel in a habeas corpus action. Coleman v. 21 Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by 22 rule, if an evidentiary hearing is required in his case. See Rule 8(c) of the Rules Governing 23 Section 2254 Cases; 28 U.S.C. § 2243. The Court may request an attorney to represent indigent
24 1 civil litigants under 28 U.S.C. § 1915(e)(1) but should do so only under “exceptional 2 circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A 3 finding of exceptional circumstances requires an evaluation of both the likelihood of success on 4 the merits and the ability of the [petitioner] to articulate his claims pro se in light of the
5 complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 6 1986). 7 At this time, the Court has not ordered service of the petition and has not determined that 8 an evidentiary hearing will be required. See Rules Governing Section 2254 Cases in the United 9 States District Courts 6(a) and 8(c); 28 U.S.C. § 2243. Petitioner’s grounds for relief do not 10 appear to be legally complex such that he would be unable to adequately articulate his claims. 11 As petitioner has not shown appointment of counsel is appropriate at this time, the motion to 12 appoint counsel is denied without prejudice. 13 14 IV. Motions to Stay and for Expeditious Ruling
15 Petitioner has filed a motion to stay state court proceedings and a motion for expeditious 16 ruling on his motion to stay. Dkts. 11, 12. As petitioner has not yet filed a serviceable petition 17 and the Court cannot determine whether amendment can cure the petition, petitioner’s motions 18 are premature. The Clerk’s office shall strike the motions from the docket; petitioner may refile 19 these motions if he files an amended pleading that is adequate to survive the Court’s preliminary 20 review. 21 /// 22 /// 23 ///
24 2 If petitioner intends to pursue this § 2241 habeas action, he must file a response to this 3 order and an amended petition on the form provided by the Court. The amended petition must be 4 legibly rewritten or retyped in its entirety, it should be an original and not a copy, it should
5 contain the same case number, and it may not incorporate any part of the original petition by 6 reference. The amended petition will act as a complete substitute for the petition, and not as a 7 supplement. 8 The Court notes that petitioner has two other pending § 2241 petitions in this District, in 9 which he requests dismissal of a variety of charges brought by Thurston County after an arrest on 10 February 20, 2019 (Case No. 3:19-cv-05817-RBL-DWC, Dkt. 1-2) and dismissal of a charge of 11 possession of stolen property brought by Lewis County after an arrest on April 23, 2019 (Case 12 No. 3:19-cv-05818-RBL-TLF, Dkt. 1-1). It is unclear to the Court whether petitioner’s 13 arguments in the petition in this matter (Case No. 3:19-cv-05819-BHS-JRC) pertain solely to 14 pending charges under state court cause number 19-1-00165-21 for possession of a stolen vehicle
15 and possession of a controlled substance. It is also unclear to the Court whether petitioner’s 16 three § 2241 petition each pertain to the same criminal proceeding. If he chooses to file an 17 amended petition in this matter, petitioner should clarify precisely what criminal charges are 18 pending against him and which charges his petition pertains to. 19 The Court notes that the proper respondent is the person who has custody over petitioner 20 (the official who is in charge of custody concerning pre-trial detainees for the County—that is, 21 the person who is head of the jail where petitioner is detained pending trial). See 28 U.S.C. § 22 2242. If petitioner files an amended petition, he must ensure that the petition names the correct 23 respondent.
24 1 If petitioner fails to adequately address the issues raised herein or file an amended 2 pleading on or before December 13, 2019, the undersigned will recommend dismissal of this 3 action. The Clerk is directed to provide petitioner with the forms for filing a petition for habeas 4 corpus relief pursuant to 28 U.S.C. § 2241. Petitioner’s motions to stay and for expeditious
5 ruling (Dkts. 11, 12) are stricken from the docket with leave to refile and petitioner’s motion for 6 counsel (Dkt. 10) is denied without prejudice. 7 Dated this 18th day of November, 2019. A 8 J. Richard Creatura 9 United States Magistrate Judge
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