Bush v. Washington
| Decision Date | 27 April 2020 |
| Docket Number | Case No. C20-5056-RJB-TLF |
| Court | U.S. District Court — Western District of Washington |
| Parties | SHELBY KCS BUSH, Petitioner, v. STATE OF WASHINGTON, Respondent. |
Petitioner, Shelby KCS Bush, proceeds pro se, in this federal habeas corpus action brought pursuant to 28 U.S.C. § 2254. Dkts. 3, 4. The petition has not been served on the respondent. By order dated March 5, 2020, the Court directed petitioner to show cause why his petition should not be dismissed for failure to exhaust state judicial remedies. Dkt. 5.
Petitioner subsequently filed documents entitled "Motion to Exhaust State Remedies" (Dkt. 6), "Motion for Petitioner Initiated Summary Judgment" (Dkt. 8), and "Response to Order to Show Cause/Motion for Reconsideration" (Dkt. 9).
The Court should dismiss the federal habeas petition without prejudice as unexhausted. The Court should deny petitioner's "Motion to Exhaust State Remedies" (Dkt. 6) and "Motion for Petitioner Initiated Summary Judgment" (Dkt. 8) for the same reasons the Court recommends dismissal of the underlying petition.
Alternatively, the motions should be denied as moot in light of the recommended dismissal of the petition. Petitioner's filing entitled "Response to Order to Show Cause/Motion for Reconsideration" (Dkt. 9) appears to be a response to the Court's order to show cause and the Court should construe it as such. To the extent petitioner's response to the order to show cause could also be considered a motion for reconsideration of the Court's order to show cause, it should be denied because petitioner fails to meet his burden on reconsideration. Also, for the reasons set forth below, the Court should deny issuance of a certificate of appealability (COA).
Petitioner challenges his conviction and sentence in Clallam County Superior Court under case number 14-1-00427-2.1 Id. Petitioner seeks release from incarceration on the grounds that he is "illegally and unlawfully imprisoned as a result of the abrogation of my federally conferred Constitutional rights by the State of Washington and its willful defiance of the established procedures and processes set forth by the U.S. Constitution." Id., at 5-12. Petitioner contends his federal constitutional rights were violated because he was not charged in the state court by Grand Jury Indictment as required by the Fifth Amendment. Id.
Petitioner does not show he has exhausted his state court remedies for the grounds raised in his federal habeas corpus petition. Dkt. 3. Instead, the petition affirmatively states that petitioner failed to directly appeal any of the grounds now presented in federal court his conviction in state court, and he failed to raise any of these grounds in a state court by post-conviction motion or petition for state habeas corpus. Id., at 5-12. Petitioner asserts that he did not appeal to the highest state court having jurisdiction because "[t]he State of Washington does not have jurisdictional authority to decide on United States Constitution matters, which are outside it's [sic] jurisdictional or statutory governing limits." Id.
By order dated March 5, 2020, petitioner was given an opportunity to show cause why his petition should not be dismissed as unexhausted. Dkt. 5. Petitioner subsequently filed several documents entitled "Motion to Exhaust State Remedies" (Dkt. 6), "Motion for Petitioner Initiated Summary Judgment" (Dkt. 8), and "Response to Order to Show Cause/Motion for Reconsideration" (Dkt. 9). None of these documents dispute that petitioner failed to present claims he now raises in his federal petition, to the highest state court. Dkts. 6, 8, 9. As discussed below, none of petitioner's arguments excuse this failure to exhaust his claims in state court and, as such, the petition should be dismissed without prejudice.
Under Rule 4 of the rules governing § 2254 petitions, the Court must promptly examine a habeas petition when it is filed, and if it plainly appears from the petition and its attachments the petitioner is not entitled to relief, the Court must dismiss the petition.
A. Exhaustion
Petitioner plainly admits he has brought no appeals and no post-conviction proceedings in state court with respect to the grounds raised in this federal habeas petition. Dkt. 3, at 5-12. Petitioner indicates that he does not intend to bring his claims to the state courts—state courts would never have the opportunity to consider the habeas claims raised in his federal petition—asserting that the state courts lack jurisdiction over issues that are raised under the United States Constitution. Id.2 However, theexhaustion of state court remedies is a prerequisite to granting a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1).3
A state prisoner is required to exhaust all state court remedies, by fairly presenting claims of violation of federal rights before the state courts, before seeking a writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is a matter of comity, intended to afford the state courts the "initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (emphasis added). This is appropriate, because "state courts, like federal courts, are obliged to enforce federal law." O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). To properly exhaust their federal claims, a would-be habeas petitioner must finish "one complete round of the State's established appellate review process," up to the highest state court with powers of discretionary review. Id., at 845.
A federal court must dismiss a federal habeas corpus petition if its claims are unexhausted. Coleman v. Thompson, 501 U.S. 722, 731 (1991). This Court has the sua sponte authority to examine the question of exhaustion at this stage of review. Campbell v. Crist, 647 F.2d 956, 957 (9th Cir. 1981) ().
Petitioner must raise each of the grounds for relief contained in his federal habeas petition, to the highest court with authority to consider the issues, in the courts of the State of Washington - on direct appeal, that would be the Washington Court of Appeals and Washington Supreme Court; for post-conviction proceedings such as state habeas corpus or a personal restraint petition the process would be slightly different but the state's highest court would still need to be given an opportunity to hear and decide the issues. Petitioner contends he has not presented his grounds for relief to the state courts because the state courts lack the "jurisdictional authority to decide on United States Constitution matters, which are outside [its] jurisdictional or statutory governing limits." Dkt. 3, at 5-12. This argument fails because 28 U.S.C. § 2254(d)(1) recognizes the jurisdiction of state courts to adjudicate whether the federal constitutional rights of a state criminal defendant were violated. Federal habeas relief is available to address where the state court's adjudication was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). As the petition plainly states, petitioner has not presented his claims for relief to the highest state court.
In the supplement to his petition and his response to the Court's Order to Show Cause, petitioner appears to argue the Court has jurisdiction over his unexhaustedclaims pursuant to 28 U.S.C. § 22414, 28 U.S.C. § 1343,5 and 42 U.S.C. § 19816. Dkt. 4, 9. Petitioner, however, readily acknowledges that he has submitted a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and that he is challenging his state court judgment of conviction pursuant to which he is "illegally and unlawfully imprisoned." Dkt. 3.
"[W]hen a prisoner is in custody pursuant to a state court judgment, § 2254 constitutes his only habeas remedy for any challenge to his detention, regardless of the nature of such a challenge." Krause v. Stewart, No. C19-1421-MJP, 2019 WL 6732015, at *2 (W.D. Wash. Sept. 13, 2019), report and recommendation adopted, No. C19-1421 MJP, 2019 WL 6728740 (W.D. Wash. Dec. 11, 2019); White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) (). Accordingly, petitioner's arguments submitted in this supplement to the petition do not provide a basis for avoiding the exhaustion requirement for petitioner's 2254 habeas petition.
Petitioner suggests that effective state remedies are unavailable to him because the state has enacted a constitution which conflicts with the federal constitution and, therefore, presentation of his claims to the state court would be futile. See Dkts. 8, 9. However, state courts are "equally bound to guard and protect rights secured by the [federal] Constitution," Ex parte Royall, 117 U.S. 241, 251 (1886); Duckworth v. Serrano, 454 U.S. 1, 3-4 (1981). Petitioner's argument does not demonstrate the absence of effective state court remedies; petitioner speculates that the state court would be unsympathetic to his claims. But even if the petitioner believes it would be futile to argue his Constitutional claims to the state courts because he does not believe he would be successful, "the apparent futility of presenting claims to state courts does not constitute cause of procedural default." Roberts v. Arave, 847 F.2d 528, 530 (9th Cir. 1988); see Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573, 71 L. Ed. 2d 783 (1982) ...
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