Opinion
Case No. C12-2216 RSM-BAT
07-07-2014
BOBBY JOE LYONS, Petitioner, v. STEPHEN SINCLAIR, Respondent.
ORDER OF DISMISSAL
I. INTRODUCTION
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. # 38. Petitioner has filed a "Motion for Extension of Time to File a Reply" to the R&R (Dkt. # 39); Objections to the R&R (Dkt. # 41); and a Motion for Stay and Abeyance (Dkt. # 42). Petitioner's motion for an extension is now moot as he filed objections to the R&R, which the Court has considered. The Court has also considered Petitioner's substantive objections to the R&R and his motion seeking to stay the petition, and finds them without merit.
II. PETITIONER'S OBJECTIONS
Petitioner raises the following four objections to the R&R: (1) the Court erred by failing to determine whether Petitioner has any remaining state court remedies for the claims that were not exhausted in state court, (2) a ruling on the merits of Petitioner's exhausted claims is not permitted where a petition contains unexhausted claims, (3) Petitioner is entitled to an evidentiary hearing regarding the issue of exhaustion, and (4) Petitioner should have had an opportunity to amend the petition or to have the petition stayed.
A. Objection 1
Contrary to Petitioner's assertion, the Magistrate Judge expressly determined that Petitioner's unexhausted claims are procedurally barred in state court under RCW 10.73.090, RCW 10.73.140, and RAP 16.4. Dkt. # 38, p. 4. Further, the Magistrate Judge considered whether Petitioner demonstrated either cause and prejudice or a fundamental miscarriage of justice that would be sufficient to overcome the procedural default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). For each of Petitioner's unexhausted claims, the Magistrate Judge determined that Petitioner fell far short of meeting this standard. See Dkt. # 38, pp. 4-10.
B. Objection 2
Ordinarily, a district court would dismiss a petition that includes claims that were not exhausted in state court. Rose v. Lundy, 455 U.S. 509, 522 (1982). The "mixed" petition would be dismissed to allow petitioner the opportunity present the unexhausted claims to the state court for review. Id. However, where, as here, the unexhausted claims are procedurally defaulted, and where the petitioner has failed to demonstrate cause and prejudice or a fundamental miscarriage of justice to overcome the procedural bar, the court is not precluded from considering the merits of the exhausted claims. See e.g., Ish v. Uttecht, C12-6084 RBL, 2014 WL 1089554, *17 (W.D. Wash. Mar. 17, 2014).
C. Objection 3
The Court has considered Petitioner's objection and his prior motion requesting an evidentiary hearing (Dkt. # 36). The Court agrees with the Magistrate Judge's determination that an evidentiary hearing is not warranted under the circumstances. Dkt. # 38, pp. 29-31.
D. Objection 4
As noted, Petitioner's unexhausted claims are procedurally barred. The petition presents no claims that may be presented to the state court for review. Thus, there are no grounds for staying the petition.
III. CONCLUSION
The Court, having reviewed Petitioner's 28 U.S.C. § 2254 habeas petition, the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge, Petitioner's objections and motions, and the remaining record, finds and Orders as follows:
1. The Report and Recommendation is ADOPTED;
2. Petitioner's 28 U.S.C. § 2254 habeas petition is DISMISSED with prejudice;
3. Petitioner's motion for evidentiary hearing, discovery, and counsel (Dkt. 36) is DENIED;
4. Petitioner is DENIED issuance of a certificate of appealability;
5. Petitioner's Motion for an Extension of Time is STRICKEN AS MOOT;
6. Petitioner's Motion for Stay and Abeyance is DENIED; and
7. The Clerk shall send a copy of this Order to the parties and to Judge Tsuchida.
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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE