McKay v. The State of Washington

Filing 13

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241. The petition 1 is DENIED without prejudice. The court further certifies that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. 2253(c);Fed. R. App. P. 22(b). Signed by Chief Judge Stanley A Bastian. (CLP, Case Administrator)

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Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.143 Page 1 of 8 1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Jan 10, 2022 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 JESSE MCKAY, Petitioner, 11 12 2:21-CV-00256-SAB v. 13 THE STATE OF WASHINGTON, by and ORDER DENYING PETITION 14 through Director Michael Sparber, Director FOR WRIT OF HABEAS 15 of Detention Services, Spokane County CORPUS UNDER 28 U.S.C. § 16 and its Attorney General, Bob Ferguson, 2241 Respondent. 17 18 19 Before the Court is Petitioner’s Verified Petition for Writ of Habeas Corpus 20 Under 28 U.S.C. § 2241 and Motion for Discovery Under 28 U.S.C. § 2246, ECF 21 No. 1. Petitioner is represented by Nicolas V. Vieth and Justin P. Lonergan. The 22 State of Washington is represented by John Samson. Spokane County is 23 represented by Richard Sterett. 24 In his Petition, Petitioner asks the Court to order Respondents to return 25 Petitioner to federal authorities for the purpose of serving his previously adjudged 26 federal sentence. He asserts that the continued detention on the pending state 27 charges violate the Due Process and Equal Protection guarantees of the Fourteenth 28 Amendment. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 1 Case 2:21-cv-00256-SAB 1 ECF No. 13 filed 01/10/22 PageID.144 Page 2 of 8 Here, the Court finds that on the face of the Petition, Petitioner is not entitled 2 to the writ as a matter of law. Background Facts 3 4 In 2019, Petitioner was charged in the Eastern District of Washington with 5 Assault Resulting in Serious Bodily Injury in Indian Country. He was arrested on 6 September 17, 2019, and was ordered detained at Spokane County Jail, in 7 Spokane, Washington, under the jurisdiction of the U.S. Marshals Service. While 8 detained, and before his federal proceedings were completed, Petitioner was 9 accused of sexually assaulting his cellmate. The alleged assault took place in 10 January 2020. 11 On February 10, 2020, the State of Washington filed an information against 12 Petitioner charging him with second-degree rape. On February 26, 2020, the State 13 moved for a bench warrant on the grounds that Petitioner “violated the terms and 14 conditions of his release pending trial for the crimes of Second Degree Rape.”1 The 15 Spokane County Superior Court granted the State’s request for a bench warrant 16 and denied Petitioner bail. 17 In March 2020, the United States filed a superseding information charging 18 Petitioner with sexual abuse, based on the January 2020 allegations. In July 2020, 19 Petitioner entered into a plea agreement in which the United States agreed to 20 dismiss the sexual abuse charge. 21 The sentencing hearing took place in late October 2020. Judge Robert H. 22 Whaley sentenced Petitioner to 120 months confinement. The Judgment ordered 23 that Petitioner be “remanded to the custody of the United States Marshal” and 24 1 25 Petitioner asserts the reason for the warrant was because he did not show up for 26 the arraignment hearing, notwithstanding the fact that the jail authorities had 27 brought him to the court’s holding area to await his case being called, but then 28 never brought him into the courtroom. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 2 Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.145 Page 3 of 8 1 “hereby committed to the custody of the United States Bureau of Prisons.” 2 Petitioner was returned to Spokane County Jail pending his transfer to a Bureau of 3 Prisons facility. 4 Shortly thereafter, Spokane County reached out to Ms. Debbi Anderson, 5 who works for the U.S. Marshals Service, regarding its pending request that 6 Petitioner be returned to state court after the sentencing in federal court took place. 7 Ms. Anderson indicated the U.S. Marshals Service would honor the State’s writ of 8 ad prosequendum once a certified copy was provided. Mr. Richard Barker, the 9 Assistant United States Attorney who prosecuted Petitioner, was also notified of 10 the writ, and he indicated the United States would honor the state’s writ of habeas 11 corpus ad prosequendum. 12 On October 30, 2020, the State applied ex parte for a writ of habeas corpus 13 ad prosequendum from the Spokane County Superior Court. Neither Petitioner nor 14 his attorney received notice of the hearing. The Superior Court granted the State’s 15 ex parte Petition and directed the U.S. Marshals Service to produce Petitioner for 16 trial on the State charge. After the filing of the writ of habeas corpus ad 17 prosequendum, Petitioner was brought before the state court and detained. He was 18 arraigned on November 17, 2020. Trial was set but it has been continued several 19 times. 20 Petitioner states that the Bureau of Prisons has not completed the designation 21 process. He asserts that he has been on pretrial custody for over 700 days, during 22 which time he has received limited and sporadic medical and mental health care 23 from Spokane County, no access to programming, and no determination as to his 24 eventual release date. Legal Standards 25 26 A. 28 U.S.C. § 2241 27 Petitions that challenge the manner, location, or conditions of a sentence’s 28 execution must be brought pursuant to 28 U.S.C. § 2241 in the custodial court. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 3 Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.146 Page 4 of 8 1 Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Pursuant to section 2 2241, a district court is authorized to entertain the habeas petition of any individual 3 who is “in custody in violation of the Constitution or laws or treaties of the United 4 States.” 28 U.S.C. § 2241(c)(3). Thus, “the general grant of habeas authority in 5 [section 2241] is available for challenges by a state prisoner who is not in custody 6 pursuant to a state court judgment [such as] a defendant in pre-trial detention[.].” 7 Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004); Hoyle v. Ada Cty., 501 F.3d 8 1053, 1058 (9th Cir. 2007) (holding that section 2241 is an appropriate means by 9 which a pretrial detainee may challenge his or her detention). 10 Where a habeas petition challenges pretrial detention under section 2241, the 11 Court reviews the state court’s factual findings with a presumption of correctness 12 and reviews legal conclusions de novo. Hoyle, 501 F.3d at 1058–59. Unless the 13 petition reveals on its face that as a matter of law the petitioner is not entitled to the 14 writ, the writ or an order to show cause must issue. 28 U.S.C. § 2243; Wright v. 15 Dickson, 336 F.2d 878, 881 (9th Cir. 1964). 16 B. Writ 17 Washington courts have recognized that the issuance of a writ of habeas 18 corpus ad prosequendum is the common practice for obtaining a prisoner from 19 federal authorities. Matter of Harris, 38 Wash. App 684, 686 (1984); see also 20 Smith v Hooey, 393 U.S. 374, 381 n.13 (1969). “[I]t has been long that the United 21 States may consent to the exercise of state jurisdiction over a federal prisoner.” 22 Harris, 38 Wash. App. at 686 (citing Ponzi v. Fessenden, 258 U.S. 254 (1922)). As 23 such, “[t]he decision to allow the state authorities to try a federal prisoner belongs 24 to the federal government, and the defendant has no right to a hearing on the 25 transfer nor can he complain about it.” Id. (citations omitted). The transfer from 26 federal to state authorities is presumed to be authorized absent a showing to the 27 contrary. Id. (citation omitted). Federal and Washington state courts have held that 28 an illegal arrest or detention does not invalidate an otherwise valid conviction even ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 4 Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.147 Page 5 of 8 1 where the seizure of the defendant violates state or federal law. Id. at 687 2 (collecting cases). 3 The concept of primary jurisdiction was established by the U.S. Supreme 4 Court when it acknowledged the need for comity between state and federal 5 authorities with respect to managing defendants who are subject to both state and 6 federal criminal prosecutions and sentences. Johnson v. Gill, 883 F.3d 756, 761 7 (9th Cir. 2018). 8 As a general rule, the first sovereign to arrest a defendant has priority of 9 jurisdiction for trial, sentencing, and incarceration. Thomas v. Brewer, 923 F.2d 10 1361, 1364 (9th Cir. 1991). The sovereign with primary jurisdiction can consent to 11 the defendant’s transfer to another sovereign for trial or other proceedings. Ponzi, 12 258 U.S. at 261. Such a decision is vested “solely to the discretion of the 13 sovereignty making it,” acting through “its representatives with power to grant 14 it.” Id. at 260. In the federal system, for example, a “transfer of a federal prisoner 15 to a state court for such purposes” may be “exercised with the consent of the 16 Attorney General.” Id. at 261–62. 17 When an accused is transferred pursuant to a writ of habeas corpus ad 18 prosequendum, he is considered to be “on loan.” Id. Notably, in Thomas, the 19 defendant was first in state custody, then writted out to federal custody, and then 20 returned to state custody after sentencing. The Ninth Circuit explained: 21 22 23 24 25 26 27 28 When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be “on loan” to the federal authorities so that the sending state’s jurisdiction over the accused continues uninterruptedly. Failure to release a prisoner does not alter that “borrowed” status, transforming a state prisoner into a federal prisoner. Id. at 1367 (quotation omitted). C. Younger Abstention Doctrine Generally speaking, the Younger abstention doctrine forbids federal courts ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 5 Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.148 Page 6 of 8 1 from enjoining pending state criminal proceedings. Younger v. Harris, 401 U.S. 2 37, 53-54 (1971); see also Middlesex Cty. Ethics Comm’n v. Garden State Bar 3 Ass’n, 457 U.S. 423, 431 (1982) (stating that Younger “and its progeny espouse a 4 strong federal policy against federal-court interference with pending state judicial 5 proceedings absent extraordinary circumstances”). The Ninth Circuit has held that 6 abstention is appropriate when: (1) the state judicial proceedings are ongoing; (2) 7 the proceedings implicate important state interests; (3) the state proceedings 8 provide an adequate opportunity to raise constitutional challenges; and (4) the 9 relief requested “seek[s] to enjoin” or has “the practical effect of enjoining” the 10 ongoing state judicial proceedings. Arevalo v. Hennessy, 882 F.3d 763, 765 (9th 11 Cir. 2018). Where all elements are met, a district court must abstain from hearing 12 the case and dismiss the action. See Beltran v. State of Cal., 871 F.2d 777, 782 (9th 13 Cir. 1988) (stating that “[w]here Younger abstention is appropriate, a district court 14 cannot refuse to abstain, retain jurisdiction over the action, and render a decision 15 on the merits after the state proceedings have ended ... [because] Younger 16 abstention requires dismissal of the federal action”) However, even where Younger 17 abstention is appropriate, “federal courts do not invoke it if there is a ‘showing of 18 bad faith, harassment, or some other extraordinary circumstance that would make 19 abstention inappropriate.’” Arevalo, 882 F.3d at 765–66. 20 D. Exhaustion of Remedies 21 As a “prudential matter,” federal prisoners are generally required to exhaust 22 available administrative remedies before bringing a habeas petition pursuant to 28 23 U.S.C. § 2241. Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (citation 24 omitted). The exhaustion requirement as applied to § 2241 petitions is judicially 25 created, rather than a statutory requirement; thus, a failure to exhaust does not 26 deprive a court of jurisdiction over the controversy. Brown v. Rison, 895 F.2d 533, 27 535 (9th Cir.1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50, 54– 28 55 (1995). If a petitioner has not properly exhausted his or her claims, a district ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 6 Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.149 Page 7 of 8 1 court in its discretion may either excuse the faulty exhaustion and reach the merits 2 or require the petitioner to exhaust their administrative remedies before proceeding 3 in court. Brown, 895 F.2d at 535. Exhaustion may be excused if the administrative 4 remedies are inadequate or ineffective, or if attempting to exhaust would be futile 5 or would cause irreparable injury. Fraley v. United States Bureau of Prisons, 1 6 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of America v. Arizona Agr. 7 Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir. 1982). Factors weighing in favor of 8 requiring exhaustion include whether 1) agency expertise makes agency 9 consideration necessary to generate a proper record and reach a proper decision; 2) 10 relaxation of the requirement would encourage the deliberate bypass of the 11 administrative scheme; and 3) administrative review is likely to allow the agency 12 to correct its own mistakes and to preclude the need for judicial review. Noriega– 13 Lopez v. Ashcroft, 335 F.3d 874, 880–81 (9th Cir. 2003). 14 Because the failure to exhaust administrative remedies is properly treated as 15 a curable defect, it should generally result in a dismissal without prejudice. City of 16 Oakland, Cal. v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009). 17 E. Analysis 18 Petitioner has not shown he is entitled to habeas relief for three reasons. 19 First, Petitioner has not challenged the legality of the state’s writ of habeas 20 corpus ad prosequendum. As such, the Court presumes the transfer of Petitioner 21 from federal to state custody is valid. Consequently, Petitioner is properly on loan 22 to state authorities and this Court does not have authority to order the return of 23 Petitioner to federal custody. 24 Second, the Court abstains from exercising its jurisdiction over this manner 25 pursuant to the Younger doctrine. The state judicial proceedings are ongoing; the 26 proceedings implicate important state interests; the state proceedings provide an 27 adequate opportunity to raise constitutional challenges; and the relief requested 28 “seek[s] to enjoin” or has “the practical effect of enjoining” the ongoing state ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 7 Case 2:21-cv-00256-SAB ECF No. 13 filed 01/10/22 PageID.150 Page 8 of 8 1 judicial proceedings. Petitioner has not alleged bad faith, harassment, or some 2 other extraordinary circumstance that would make abstention inappropriate. 3 Finally, Petitioner has failed to exhaust his administrative remedies with the 4 state court and this Court declines to hear his Petition until he does so. 5 Accordingly, IT IS HEREBY ORDERED: 6 1. The Verified Petition for Writ of Habeas Corpus Under 28 U.S.C. § 7 2241 and Motion for Discovery Under 28 U.S.C. § 2246, ECF No. 1, is DENIED 8 without prejudice. 9 2. Pursuant to 28 U.S.C. § 2553(c), the Court denies a certificate of 10 appealability. Defendant has not made a substantial showing that he is entitled to 11 habeas relief. 12 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 13 and provide copies to counsel. 14 DATED this 10th day of January 2022. 15 16 17 18 19 20 21 Stanley A. Bastian Chief United States District Judge 22 23 24 25 26 27 28 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 ~ 8

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