Opinion
C24-5777-BHS-SKV
11-22-2024
THOMAS RUSSELL BOARDMAN, Petitioner, v. JEFFEREY PERKINS, Respondent.
REPORT AND RECOMMENDATION
S. KATE VAUGHAN UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This is a federal habeas action filed under 28 U.S.C. § 2254. Petitioner Thomas Boardman is currently confined at the Coyote Ridge Corrections Center in Connell, Washington. He seeks to challenge herein the judgment and sentence entered in Kitsap County Superior Court case number 17-1-01192-2 in 2018. Dkt. 5. That judgment is the basis of his current custody. Respondent filed an answer to Petitioner's petition (Dkt. 8), and Petitioner filed a response to Respondent's answer (Dkt. 9).Respondent argues in his answer that this Court lacks jurisdiction over the instant petition because it is successive under 28 U.S.C. § 2244(b), and the Ninth Circuit has not authorized the filing of a successive petition. See Dkt. 8.
Petitioner has also filed a document which he identifies as a motion, but which is actually a copy of an official misconduct complaint he filed with the Secretary of the Washington State Department of Corrections against various state officials involved in his prosecution. See Dkt. 10. The document is apparently intended as an exhibit in support of the pending petition for writ of habeas corpus.
This Court, having reviewed Petitioner's petition, Respondent's answer, and the balance of the record, concludes that it lacks jurisdiction over Petitioner's federal habeas petition because the petition is successive under § 2244(b). The Court therefore recommends that the petition be dismissed.
II. GROUNDS FOR RELIEF
Petitioner identifies four grounds for relief in his petition, each of which alleges constitutional infirmities in RCW 9A.44.020(1) . Petitioner's specific claims are as follows:
RCW 9A.44.020(1) provides that “In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated.”
GROUND ONE: Separation of Powers Doctrine - violation of USCS Const. Art. § 3; National Treasury Employees Union v. Nixon, 492 F.2d 587[.]
GROUND TWO: Privileges and Immunities Clause - violation of Fourteenth Amendment to U.S. Constitution.
GROUND THREE: Equal Protection Clause - violation of Due Process and Equal Protection under the 5th and 14th Amend U.S. Const.
GROUND FOUR: Bill of Attainder (Art. 1 § 9, Cl 3; Art 1 § 10, Cl 1)[.]Dkt. 5 at 5, 7, 8, 10.
III. DISCUSSION
In October 2018, Petitioner was convicted in Kitsap County Superior Court on a charge of rape of a child in the first degree and he was sentenced to a minimum term of 123 months confinement and a maximum term of life. See Dkt. 5 at 1. On April 11, 2019, Petitioner filed a federal habeas petition challenging his 2018 Kitsap County judgment and sentence. See Boardman v. Uttecht, C19-5328-BHS, Dkt. 1. That petition was dismissed without prejudice on September 5, 2019, on the grounds that Petitioner failed to properly exhaust his state court remedies. See id., Dkts. 17, 20. On June 8, 2021, Petitioner filed a second federal habeas petition challenging his 2018 Kitsap County judgment and sentence. See Boardman v. Uttecht, C21-5428-JCC, Dkt. 1. That petition was dismissed with prejudice on January 3, 2022, on the grounds that the petition was time-barred under 28 U.S.C. § 2244(d). See id., Dkts. 15, 20. Petitioner filed the instant federal habeas petition, his third challenging the same 2018 Kitsap County judgment and sentence, on September 17, 2024. See Dkt. 1.
By statute, this Court is without jurisdiction to consider a second or successive habeas petition until the Ninth Circuit Court of Appeals has authorized its filing. See 28 U.S.C. § 2244(b); Circuit Rule 22-3. Section 2244(b)(3)(A) provides that before a second or successive habeas petition is filed in the district court, “the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” Section 2244(b)(3)(A) thus creates a “gatekeeping” mechanism at the appellate court for the consideration of second or successive applications in the district courts. See Felker v. Turpin, 518 U.S. 651, 657 (1996). The court of appeals may authorize the filing of a second or successive application for habeas relief only if it determines that the applicant has made a prima facie showing that the application satisfies the requirements set forth in 28 U.S.C. § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(C).
It is clear from this Court's records that Petitioner has filed previous federal habeas petitions challenging the same Kitsap County Superior Court judgment and sentence at issue here, and that one of those prior petitions was dismissed as time-barred under the federal statute of limitations. The instant petition is therefore a second or successive one, and this Court is without jurisdiction to consider it until the Ninth Circuit Court of Appeals has authorized its filing. See 28 U.S.C. § 2244(b); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (holding that dismissal of a habeas petition as untimely constitutes a disposition on the merits and renders a subsequent petition challenging the same conviction or sentence “second or successive” for purposes of § 2244(b)). Petitioner makes no showing that the Ninth Circuit has authorized the filing of the instant petition and, thus, this Court lacks jurisdiction to consider it.
IV. CONCLUSION
Based on the foregoing, this Court recommends that Petitioner's petition for writ of habeas corpus be dismissed for lack of jurisdiction. A proposed Order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit not later than fourteen (14) days from the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar fourteen (14) days from the date they are filed. Responses to objections may be filed by the day before the noting date. If no timely objections are filed, the matter will be ready for consideration by the District Judge on December 13, 2024.