Opinion
CASE NO. C19-5561 BHS
02-06-2020
DAVID Q. WEBB, Petitioner, v. GARY SIMPSON, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable David W. Christel, United States Magistrate Judge, Dkt. 31, and Petitioner's emergency motion pursuant to Perez v. Ledesma, 401 U.S. 82 (1971) and Moore v. Sims, 442 U.S. 415 (1974), Dkt. 32.
Petitioner David Q. Webb ("Petitioner"), a pre-trial detainee incarcerated in the Kitsap County Jail, filed this federal habeas action pursuant to 28 U.S.C. § 2241. Dkt. 1. When Petitioner initiated this action, his underlying criminal case was ongoing in state court. Id.; see also Dkt. 32 (indicating state case was active as of January 7, 2020).
On January 6, 2020, Judge Christel issued the R&R recommending that Petitioner's federal petition be dismissed without prejudice for failure to exhaust state remedies. Dkt. 31. In relevant part, Judge Christel concluded that "[t]he record fails to show Petitioner has availed himself of any state court remedies." Id. Judge Christel also noted that nothing prevents Petitioner from filing motions or appeals in the state court, and therefore he has not shown an absence of available state corrective process. Id.
On January 7, 2020, Petitioner filed an emergency motion pursuant to Perez v. Ledesma, 401 U.S. 82 (1971) and Moore v. Sims, 442 U.S. 415 (1974). Dkt. 32. Petitioner states that his "circumstances have become extremely untenable" and alleges that he is being prosecuted in bad faith causing extreme harassment and irreparable injury. Id. at 1. On January 14, 2020, the Government responded. Dkt. 33. On January 27, 2020, Petitioner filed an untimely reply. Dkt. 35.
In this case, the Court agrees that Petitioner has failed to exhaust state court remedies and failed to establish an absence of state corrective process. Therefore, the Court adopts the R&R in full.
Petitioner's emergency motion cites Supreme Court precedent presumably in favor of authorizing this Court's intervention in his state criminal matter. Dkt. 32. The Court, however, does not reach the merits of this issue because the record reveals that on February 3, 2020, after the date Petitioner filed his emergency motion and untimely reply, the Kitsap County District Court for the State of Washington entered an order dismissing all counts against him with prejudice on motion of the prosecuting attorney. See https://www.kitsapgov.com /dc/Pages/ecourt_ Search.aspx, populated with search terms for case no. 23428401, last visited February 4, 2020. The Court takes judicial notice of Petitioner's state court records. Shetty v. Wells Fargo Bank, NA, 696 F. App'x 828, 829 (9th Cir. 2017) (district court did not abuse discretion by taking judicial notice of state court proceedings). Because the record demonstrates that Petitioner's state case has been dismissed, there is no longer a live controversy warranting this Court's potential intervention.
Accordingly, the Court having considered the R&R, Petitioner's emergency motion, the docket of the Kitsap County District Court, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) Petitioner's federal habeas petition is DISMISSED without prejudice;
(3) A Certificate of Appealability is DENIED;
(4) Petitioner's in forma pauperis status is REVOKED for purposes of appeal;
(5) Petitioner's emergency motion, Dkt. 32, is DENIED as moot; and
(6) The Clerk shall enter JUDGMENT and close the case.
Dated this 6th day of February, 2020.
/s/_________
BENJAMIN H. SETTLE
United States District Judge