Opinion
CASE NO. C02-2003R
January 21, 2003
REPORT AND RECOMMENDATION
Petitioner Michael Harris is a state prisoner currently incarcerated at McNeil Island Correction Center at Steilacoom, Washington. He filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his February 25, 2000, conviction on drug trafficking charges. He has now moved for an Order holding his petition in abeyance, or in the alternative dismissing without prejudice, while he returns to the state courts to exhaust a claim of ineffective assistance of counsel. Dkt. # 9. Respondent has opposed the motion on the basis that petitioner is barred under state law from filing a second Personal Restraint Petition, citing RCW 10.73.090 and 10.73.140. However, it is not for this Court to determine whether an exception to the state's time-bar and successive petition rules might apply; that is a matter for the state courts to decide. RCW 10.73.100; 10.73.140.
Accordingly, petitioner's motion should be granted, but the petition should be dismissed without prejudice rather than held in abeyance. This will not result in prejudice to petitioner's ability to re-file a petition bearing his newly-exhausted claim, because the present petition is already untimely under 28 U.S.C. § 2244 (d); indeed respondent has moved to dismiss on that basis. Dkt. #10. Petitioner may present his argument for overcoming the one-year time bar at such time as he returns to file his new petition. Respondent's pending Motion to Dismiss should thus be stricken as moot. Proposed forms of Order and Judgment reflecting this recommendation are attached.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
CHAMBERS OF UNITED STATES COURTHOUSE RICARDO S. MARTINEZ 1010 FIFTH AVE. UNITED STATES MAGISTRATE JUDGE SEATTLE, WA 98104 (206) 553-1396
January 22, 2003
TO: Michael Harris, Petitioner Pro Se Alex A. Kostin, Counsel for Respondent
FROM: RICARDO S. MARTINEZ U.S. Magistrate Judge
RE: Harris v. Payne Case No. C02-2003R
Attached are copies of my Report and Recommendation, proposed Order and Judgment in the above-captioned case. The originals are being filed with the Clerk. This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters judgment in this case.
Objections to the recommendation should be filed and served within fifteen days of the date of this letter with copies to the Clerk for forwarding to the District Judge and to my office. Failure to file objections within the specified time waives the right to appeal any order by the District Court adopting this Report and Recommendation. In accordance with our local rules, you should note your objections for consideration on the Judge's motion calendar for the third Friday after they are filed. If no timely objections are filed, the matter will be ready for consideration by the District Judge on February 7, 2003.
Thank you for your cooperation.
Attachments RSM/csm
cc: Hon. Barbara J. Rothstein
ORDER DISMISSING § 2254 PETITION
The Court, having reviewed the petitioner's motion to hold his petition in abeyance or in the alternative dismiss his petition without prejudice, the Report and Recommendation of Judge Ricardo S. Martinez, United States Magistrate Judge, and the remaining record, does hereby find and Order:
(1) The Court adopts the Report and Recommendation.
(2) Petitioner's § 2254 petition is DISMISSED without prejudice.
(3) The Clerk is directed to send copies of this Order to petitioner, to counsel for respondent, and to Judge Martinez.
JUDGMENT IN A CIVIL ACTION
Decision by the Court. This action came under consideration before the Court. The issues have been considered and a decision has been rendered.IT IS ORDERED AND ADJUDGED the Report and Recommendation is adopted and approved and the Petition for Writ of Habeas Corpus is DISMISSED without prejudice.