Franklin v. Snohomish County Superior Court

Filing 11

ORDER adopting Report and Recommendations, by Judge John C Coughenour. (Copy sent to Petitioner) (JS)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON
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AT SEATTLE

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SCOTT FRANKLIN,

CASE NO. C11–0586–JCC

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ORDER

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Petitioner,
v.
SNOHOMISH COUNTY SUPERIOR

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COURT,
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Respondent.

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This matter comes before the Court on the report and recommendation of Magistrate

21 Judge James P. Donohue. (Dkt. No. 10). Having thoroughly considered the report and
22 recommendation, the Court ADOPTS the report and recommendation, DENIES without
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prejudice the Petitioner’s petition for writ of habeas corpus, DENIES the issuance of a certificate
of appealability, and DENIES as moot Petitioner’s application to proceed in forma pauperis and

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motion to extend time.

ORDER, C11–0586–JCC
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I.

BACKGROUND
On May 13, 2011 the Snohomish County Superior Court entered a guilty judgment

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3 against Petitioner for felony harassment. Prior to this judgment, Petitioner filed a petition for writ
4 of habeas corpus, and applied to proceed in forma pauperis on April 7, 2011. (Dkt. 1–1; Dkt. 1).
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Petitioner moved to extend time on May 12, 2011. (Dkt. 6).

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Petitioner nowhere demonstrates he has exhausted all state-court remedies before filing

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his petition. He has appealed his judgment of conviction, but no court has heard his appeal yet.
(Dkt. 1–1). Petitioner also writes that he has not sought further review of his judgment by a

10 higher state court. (Dkt. 1–1).
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RELEVANT LAW

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A.

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Law of Habeas Corpus

Prior to petitioning for habeas corpus relief, a petitioner must exhaust all available state-

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court remedies, or show that no effective state-court remedy exists. 28 U.S.C. § 2254(b). A
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showing of exhaustion of state-court remedies requires the petitioner to fairly present his claim to

17 the highest state court with jurisdiction to consider it. Johnson v. Zenon, 88 F.3d 828, 829 (9th
18 Cir. 1996). To achieve exhaustion, “state prisoners must give the state courts one full opportunity
19 to resolve any constitutional issues by invoking one complete round of the State’s established
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appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If the federal
district court finds that the petitioner has failed to exhaust his state-court remedies then the court

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may dismiss the petition without prejudice to allow the petitioner to return to state court to
exhaust his state-court remedies. Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002). The

25 petitioner bears the burden of proving exhaustion. Baldwin v. Lewis, 442 F.2d 29, 35 (7th Cir.
26 1971).

ORDER, C11–0586–JCC
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B.

Law of Certificate of Appealability

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Following its issuance of a final order denying a habeas petition, a district court may

4 issue a certificate of appealability “only if the applicant has made a substantial showing of a
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denial of a constitutional right.” 28 U.S.C. § 2253(c). When a district court denies a habeas
petition on procedural grounds, a substantial showing of the denial of a constitutional right

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requires the prisoner to show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it

10 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
11 U.S. 473, 484 (2000). The substantial showing of a denial of a constitutional requirement is a
12 two-part threshold test, and the district court may deny the habeas petition for failing to meet the
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procedural threshold without addressing the application’s constitutional issues. Id. at 485.

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Where a district court correctly invokes a plain procedural bar to dispose of the petition
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for writ of habeas corpus, “a reasonable jurist could not conclude either that the district court

17 erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at
18 484. Such petitions with plain procedural bars do not warrant issuance of a certificate of
19 appealability. Id.
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III.

DISCUSSION
Because the Petitioner has failed to exhaust his state-court remedies prior to filing his

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petition for habeas corpus relief, his petition is denied without prejudice for lack of jurisdiction.
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Because reasonable jurists would not disagree with the Court’s conclusion that Petitioner has

25 failed to exhaust his state-court remedies prior to filing his petition for habeas corpus relief, the
26 certificate of appealability shall not issue. Because the Court denies Petitioner’s petition for relief

ORDER, C11–0586–JCC
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for lack of jurisdiction, the Court denies as moot Petitioner’s application to proceed in forma

2 pauperis and motion to extend time.
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A.

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The facts of Petitioner’s case show that he has failed to exhaust his state-court remedies

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Petitioner Has Failed to Exhaust His State-court Remedies

before filing his habeas petition. Because Petitioner has not yet completed the appeal of his
judgment, nor sought further review of his judgment by a higher state court, Petitioner has not

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presented his case to the highest state court with jurisdiction to consider it. See Johnson v. Zenon,
88 F.3d at 829. Petitioner, by not presenting his case to the highest state court, has deprived the

10 state courts of a full opportunity to resolve any constitutional issues through appellate review.
11 See O’Sullivan v. Boerckel, 526 U.S. at 845. Because Petitioner has not afforded the Washington
12 appellate courts one full opportunity to resolve his constitutional issues, he has failed to exhaust
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his state-court remedies prior to filing his petition for habeas corpus relief. See Id. The Court

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must dismiss the petition for habeas corpus relief without prejudice because Petitioner has failed
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to exhaust his state-court remedies. See Franklin v. Johnson, 290 F.3d at 1231.

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B.

Petitioner’s Plain Procedural Bar Does Not Warrant a Certificate of

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Appealability

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Because no reasonable jurist would conclude that this Court has erred in dismissing this

20 petition for lack of jurisdiction, the certificate of appealability shall not issue. Petitioner’s
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petition indisputably demonstrates that the state courts have not yet heard his appeal from

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judgment and that Petitioner has not yet sought further review by a higher state court. Based on
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this showing of unexhausted state-court remedies, the dismissal of the petition does not

25 constitute a denial of a constitutional right because no reasonable jurist would find the Court’s
26 procedural ruling debatable. 28 U.S.C. 2253(c); and see Slack v. McDaniel, 529 U.S. at 484.

ORDER, C11–0586–JCC
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Because Petitioner’s failure to exhaust state-court remedies is indisputable, this failure is a plain

2 procedural bar; therefore, the certificate of appealability shall not issue. See Slack v. McDaniel,
3 529 U.S. at 484. Due to the plain procedural bar, the merits of Petitioner’s claim of denial of
4 constitutional rights need not be addressed. See Id. at 485. Because of the indisputable nature of
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Petitioner’s procedural defect, the certificate of appealability shall not issue.

IV.

CONCLUSION

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For the aforementioned reasons, the Court ADOPTS the report and recommendation,
DENIES without prejudice the Petitioner’s petition for writ of habeas corpus, DENIES the

10 issuance of a certificate of appealability, and DENIES as moot Petitioner’s application to
11 proceed in forma pauperis and motion to extend time. The Clerk of Court shall send copies of
12 this order to Petitioner, Respondent, and Magistrate Judge James P. Donohue.
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SO ORDERED this 29th day of July, 2011.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER, C11–0586–JCC
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