Opinion
Case No. 3:20-cv-05214-BHS-TLF
10-19-2020
MATTHEW WAYNE FOWLER, Petitioner, v. JEFFREY A UTTECHT, Respondent.
REPORT AND RECOMMENDATION Noted for November 6, 2020
Petitioner, Matthew Wayne Fowler, proceeds pro se in this federal habeas action brought pursuant to 28 U.S.C. § 2254 and filed on March 9, 2020. See Dkts. 1, 4. After reviewing the petition, the Court declined to serve the petition, but gave petitioner an opportunity to show cause why this case should not be dismissed as unexhausted. See Dkt. 5. Petitioner requested and was granted an extension of time to respond to the Court's Order to Show Cause. Dkts. 8, 9. On October 5, 2020, petitioner filed a response to the Court's Order to Show Cause. Dkt. 10.
The Court recommends dismissal of the petition without prejudice as unexhausted. And, for the reasons set forth below, the Court should deny issuance of a certificate of appealability (COA).
BACKGROUND
Petitioner challenges his 2019 conviction and sentence under case number 18-1-02953-0 for Second Degree Child Rape. Dkts. 1, 4. In his petition, petitioner contends his federal constitutional rights were violated under the Fifth, Thirteenth and Fourteenth Amendments, as well as Article IV and Article VI, because he was not charged by Grand Jury Indictment. Dkt. 4, at 5-12.
The Court notes that in his original proposed petition filed with the Court, petitioner stated the date of his judgment of conviction and date of sentencing was May 10, 2019. Dkt. 1. Petitioner subsequently filed another petition stating the date of his judgment of conviction and date of sentencing was July 27, 2018. Dkt. 4. To resolve the discrepancy, the Court examined the relevant state court records related to petitioner's state court criminal case number; those records indicated petitioner was arrested on July 28, 2018, (with an offense date of July 27, 2018), he pled guilty on May 10, 2019 and his judgment of conviction and sentence was entered on July 24, 2019. The Court takes judicial notice of Pierce County Superior Court Criminal Case No. 18-1-02953-0, located at https://linxonline.co.pierce.wa.us/linxweb/Case/CriminalCase.cfm?cause_num=18-1-02953-0. See Fed. R. Evid. 201(b) (The Court "may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (Courts may take judicial notice of "court filings and other matters of public record" under Fed.R.Evid. 201(b)); In re Icenhower, 755 F.3d 1130, 1142 (9th Cir. 2014); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (court may take judicial notice of court filings and other matters of public record). The Court notes that petitioner confirmed July 24, 2019 as the date of his judgment and sentence in his response to the Court's Order to Show Cause. Dkt. 10.
Petitioner states he has not appealed his judgment and sentence, nor has he raised his claims through a post-conviction motion or petition for habeas corpus in a state trial court. Dkt. 4, at 1-12. 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. Dkt. 4, at 5-12. However, the exhaustion of state court remedies is a prerequisite to granting a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1).
The Court notes that in the box labeled item 13(a) of the petition the petitioner checked "yes" in response to the question of whether all grounds for relief raised in the petition have been presented to the highest state court having jurisdiction. Dkt. 4, at 12. The Court interprets this as a typographical or scrivenor's error, because petitioner makes clear in his explanation to the question that "no grounds herein have been raised at the state level, as the state has no jurisdictional authority over federal constitutional matters." Id. (emphasis added).
By order dated April 29, 2020, petitioner was given an opportunity to show cause why his petition should not be dismissed as unexhausted. See Dkt. 5. Petitioner subsequently filed a response to the Order to Show Cause. Dkt. 10. Petitioner does not dispute that he has not presented the claims raised in his petition to the highest state court, but he argues the Court should, nevertheless, consider his claims. Id. As discussed below, none of petitioner's arguments excuse petitioner's failure to exhaust his claims in state court and, as such, the petition should be dismissed without prejudice.
DISCUSSION
A. Habeas Corpus Petition - Failure to Exhaust State Court Remedies
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.
The Court concludes that petitioner's federal habeas petition should be dismissed without prejudice as unexhausted. Petitioner plainly acknowledges he has not presented the claims raised in his petition to the highest state court and, as such, his petition is not eligible for federal habeas review. Dkt. 4, at 1-12. Exhaustion of state court remedies is a prerequisite to granting a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). Petitioner indicates that he does not intend to bring his claims to the state courts, asserting that the state courts lack jurisdiction over issues that are raised under the United States Constitution. Dkt. 4, at 5-12.
28 U.S.C. §2254 (b)(1) provides, in relevant part: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that
(A) (A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant."
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 federal 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) ("This court may consider whether state remedies have been exhausted even if the state does not raise the issue").
Petitioner must raise the grounds for relief contained in his habeas petition to the Washington Court of Appeals and Washington Supreme Court. 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 of its jurisdictional or statutory governing limits." Dkt. 4, 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 properly exhausted his claims for relief in the state courts.
In his response to the Court's Order to Show Cause, petitioner appears to argue the Court has jurisdiction over his unexhausted claims pursuant to 28 U.S.C. § 2241 , 28 U.S.C. § 1343, and 42 U.S.C. § 1981. Dkt. 10. 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. 4. "[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) (holding § 2254 was a state prisoner's exclusive remedy when he sought to challenge his transfer from a state prison to a privately-run prison in another state). Accordingly, petitioner's arguments submitted in this response to the Court's Order to Show Cause do not provide a basis for avoiding the exhaustion requirement for petitioner's 2254 habeas petition.
Section 2241, provides the authority for granting habeas relief to a person "who is not in custody pursuant to a state court judgment" but, rather, who is in custody for some other reason, such as pretrial detention or awaiting extradition. White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004); see also Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (Section 2241's general grant of habeas authority is available to someone who is not in custody pursuant to a state court judgment, such as someone in a criminal trial or awaiting extradition).
28 U.S.C. § 1343 confers original jurisdiction on the district court to "redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States...." 28 U.S.C. § 1343.) But a civil rights action under 28 U.S.C. § 1343 "cannot be used by a state prisoner to circumvent the" exhaustion requirement of 28 U.S.C. § 2254. Smartt v. Avery, 411 F.2d 408, 409 (6th Cir. 1969); accord Ney v. State of Cal., 439 F.2d 1285, 1286 (9th Cir. 1971); Fisher v. Planet, No. LA CV 14-04450-VBF, 2014 WL 4664510, at *1 (C.D. Cal. Sept. 18, 2014).
42 U.S.C. § 1981 prohibits racial discrimination by private parties or through state action pertaining to the making and enforcing of contracts as well as the exercise of other rights under the law. 42 U.S.C. § 1981; see Cox v. United States, No. 17-cv-00001 JMS-KSC, 2017 WL 2385341, at *8 (D. Haw. May 31, 2017).
Petitioner also appears to argue in response to the Court's order to show cause 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. 4, 10. 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 but, rather, simply reflects petitioner's assumption 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) (Rejecting habeas petitioner's argument that exhaustion of state remedies would have been futile and explaining "[i]f a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.").
The Court notes that petitioner also makes statements in his response to the Court's Order to Show Cause related to his criminal case. Specifically, he claims the police "entrapped" him in order to charge him with a crime and that his attorney failed to show him all of the discovery he obtained, pressured him into pleading guilty, and never presented his history and character evidence to the court. Dkt. 10, at 13-20. But these issues are not raised as separate grounds for relief in his habeas petition nor does petitioner indicate he is seeking to amend his petition to add these claims or that he has raised and exhausted these claims in state court.
Petitioner has not presented the claims raised in his petition to the highest state court and presents no colorable claim that an exception to the exhaustion requirement applies in his case. Accordingly, petitioner is not eligible for federal habeas review. Dkt. 5, at 1-12; see Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013) (citing King v. Ryan, 564 F.3d 1133, 1142 (9th Cir. 2009)) ("To be properly filed, a claim must have been exhausted at the time of filing.") (emphasis added).
The Court notes that several similar petitions by different petitioners presenting the same grounds for relief and offering the same explanation for failure to exhaust state judicial remedies have been considered and dismissed by this court prior to service, pursuant to Rule 4, based on petitioner's failure to exhaust state judicial remedies. See, e.g., Duchow v. State of Washington, Case No. 19-cv-687-RSL-MAT (W.D. Wash., June 14, 2019) (dismissal without prejudice for failure to exhaust state court remedies); Wamba v. State of Washington, Case No. 19-cv-661-TSZ-MAT (W.D. Wash., June 13, 2019) (dismissal without prejudice for failure to exhaust state court remedies); Domingo v. State of Washington, Case No. 19-cv-659-MJP-BAT (W.D. Wash., June 18, 2019) (dismissal for failure to exhaust state court remedies and because grounds raised in petition are without merit); Nguyen v. State of Washington, Case No. 19-cv-5388-JCC-BAT (W.D. Wash., July 9, 2019) (dismissal for failure to exhaust state court remedies and because grounds raised in petition are without merit); Urbina v. State of Washington, Case No. 19-cv-648-BJR-BAT (W.D. Wash., May 21, 2019) (dismissal for failure to exhaust state court remedies and because grounds raised in petition are without merit).
The Court also notes that it appears that petitioner's substantive constitutional claims also lacks merit as it has long been settled that there is no denial of Federal Constitutional rights involved in the substitution of the prosecuting attorney's criminal information for the grand jury's indictment. Hurtado v. People of State of California, 110 U.S. 516 (1884) (Rejecting claim that grand jury indictment is essential to due process and that it is a violation of the Fourteenth Amendment for a state to prosecute a defendant by criminal information). This rule has been specifically applied to Washington's state practice of prosecution by information. Gaines v. Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793 (1928); Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993); and see Domingo, Case No. 19-cv-659-MJP-BAT (W.D. Wash., June 18, 2019) (dismissal for failure to exhaust state court remedies and because grounds raised in petition are without merit); Nguyen, Case No. 19-cv-5388-JCC-BAT (W.D. Wash., July 9, 2019) (dismissal for failure to exhaust state court remedies and because grounds raised in petition are without merit); Urbina, Case No. 19-cv-648-BJR-BAT (W.D. Wash., May 21, 2019) (dismissal for failure to exhaust state court remedies and because grounds raised in petition are without merit). However, the Court need not reach the merits of petitioner's claims as it is clear from the face of the petition that he has failed to exhaust his state court remedies.
CONCLUSION AND DEADLINE FOR OBJECTIONS
For the foregoing reasons, this Court recommends that petitioner's federal habeas corpus petition (Dkt. 4), and this action, be dismissed without prejudice as unexhausted.
A petitioner seeking post-conviction relief under § 2254 may appeal a district court's dismissal of his federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. A certificate of appealability may issue only where a petitioner has made "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under the above standard, this Court should deny a certificate of appealability. A proposed order accompanies this Report and Recommendation.
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Federal Rule of Civil Procedure (FRCP) 72(b); see also FRCP 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the above time limit, the Clerk shall set this matter for consideration on November 6, 2020, as noted in the caption.
Dated this 19th day of October, 2020.
/s/_________
Theresa L. Fricke
United States Magistrate Judge