Simms v. State of Washington

Filing 3

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus. Objections to R&R due by 7/28/2006. Noting Date 8/4/2006. Signed by Magistrate Judge Mary Alice Theiler. (Attachments: # 1 R&R Letter# 2 R&R Proposed Order# 3 R&R Judgment)(GB)

Simms v. State of Washington

Doc. 3

Case 2:06-cv-00942-RSM

Document 3

Filed 07/07/2006

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01 02 03 04 05 06 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) Petitioner, ) ) v. ) ) STATE OF WASHINGTON, ) ) Respondent. ) ____________________________________ ) CASE NO.: C06-0942-RSM

07 DANIEL J. SIMMS, aka TERRY WEEKS, 08 09 10 11 12 13

REPORT AND RECOMMENDATION

Petitioner Daniel Simms has filed a petition for writ of habeas corpus under 28 U.S.C. §

14 2254. Petitioner is currently incarcerated in the King County Department of Adult and Juvenile 15 Detention where he is awaiting sentencing on charges of first degree robbery, second degree 16 assault, and first degree unlawful possession of a firearm. (See Dkt. No. 1.) Petitioner indicates 17 in his petition that he was convicted on June 29, 2006, and that he is to be sentenced on July 25, 18 2006. (See id.) 19 Under 28 U.S.C. § 2254, the district court may entertain an application for a writ of habeas

20 corpus only from an individual in custody pursuant to the judgment of a state court. This Court 21 has no jurisdiction to intervene in ongoing state court proceedings. See Demos v. U.S. Dist. Court 22 for E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991), see also, 28 U.S.C. § 1651. Because REPORT AND RECOMMENDATION PAGE -1

Dockets.Justia.com

Case 2:06-cv-00942-RSM

Document 3

Filed 07/07/2006

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01 petitioner has not yet been sentenced for his crimes, no judgment has yet been entered against. 02 This Court therefore lacks jurisdiction to consider the instant petition.1 03 Accordingly, this Court recommends that petitioner's federal habeas petition be dismissed

04 without prejudice. A proposed order accompanies this Report and Recommendation. 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 Petitioner is advised that once he is sentenced, and a judgment is entered by the King 21 County Superior, his federal habeas claims will become eligible for review by this Court only after he has properly exhausted his state court remedies with respect those claims. See 28 U.S.C. 22 § 2254(b)(1). REPORT AND RECOMMENDATION PAGE -2
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DATED this 6th day of July, 2006.

A

Mary Alice Theiler United States Magistrate Judge