Eggum v. Uttecht

Filing 113

ORDER granting Petitioner's 109 Motion for Leave to File Supplemental Brief. Petitioner shall file his supplemental brief within 14 daysof the date of this Order. The Court RESERVES RULING on petitioner's request to set a briefing schedule. Within 14 days of the date of this Order, the parties shall meet and confer and then file a joint status report proposing a briefing schedule. Signed by Hon. Mary Alice Theiler. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARLOW TODD EGGUM,
Petitioner,

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Case No. C14-1328-RAJ-MAT
ORDER ON PETITIONER’S MOTION
TO FILE SUPPLEMENTAL BRIEF
AND SET BRIEFING SCHEDULE

v.
JEFFREY A UTTECHT,
Respondent.

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This is a 28 U.S.C. § 2254 habeas action. Petitioner filed a pro se habeas petition in

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September 2014 that raised 26 grounds for relief, some of which included sub-claims. Dkt. 13.

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During briefing on the merits of the petition, it became apparent that petitioner had pending state

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court proceedings that were relevant to his federal habeas claims. See, e.g. Dkts. 37, 40.

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Accordingly, on July 30, 2015, the Court stayed the action. Dkt. 42. On February 22, 2016, the

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Court lifted the stay and ordered supplemental briefing. Dkt. 53. On April 26, 2016, the Court

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stayed the action again because petitioner still had pending state court proceedings. Dkt. 63. On

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January 18, 2017, petitioner filed a motion to appoint counsel, which the Court referred to the

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Office of the Federal Public Defender (“FPD”) for review. Dkts. 82-83. On May 12, 2017, the

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FPD filed a notice of intent to seek appointment, and the Court subsequently appointed the FPD
ORDER ON PETITIONER’S MOTION TO
FILE SUPPLEMENTAL BRIEF AND SET
BRIEFING SCHEDULE - 1

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to represent petitioner. Dkts. 91, 92. On July 31, 2017, petitioner, now proceeding through

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counsel, filed an amended habeas petition that raised the same number of claims as his original

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petition. Dkt. 100. On August 10, 2017, the Court stayed the action for a third time so that

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petitioner could return to the state courts, this time with the benefit of counsel, to attempt to exhaust

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some of his federal habeas claims. Dkt. 103. On January 2, 2019, the parties filed a joint motion

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to lift the stay, which the Court granted. Dkts. 108, 111.

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Currently before the Court is petitioner’s motion for leave to file a supplemental brief that

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provides additional argument regarding his First Amendment claims that were recently before the

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state courts. Dkt. 109; see also Dkt. 109-1 (proposed supplemental brief). He also asks the Court

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to expedite the briefing schedule because he is eligible for immediate release if he obtains habeas

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relief on his First Amendment claims. See id.

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Respondent does not object to petitioner’s request to file a supplemental brief, but he asks

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the Court to provide him sufficient time to review the extremely voluminous record in this case

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(the amended habeas petition contains 1595 pages of briefing and exhibits, and the proposed

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supplemental brief includes an additional 623 pages, although most of those are exhibits to the

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State’s briefing in the state courts). Dkt. 110.

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In reply, petitioner acknowledges that the case has a complicated procedural posture and

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voluminous records, but argues that “there is a relatively simple dispositive question that could be

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briefed and analyzed first, namely, whether the recent decision of the Washington Supreme Court

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finding Mr. Eggum’s intimidating a public servant convictions constitutional was contrary to or

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an unreasonable application of the United States Supreme Court’s First Amendment precedent.”

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Dkt. 112 at 2. Petitioner suggests that the Court stagger the briefing schedule so that this issue is

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ORDER ON PETITIONER’S MOTION TO
FILE SUPPLEMENTAL BRIEF AND SET
BRIEFING SCHEDULE - 2

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addressed first; then, only if necessary, would the Court direct the parties to brief petitioner’s

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remaining habeas claims. Id.

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Having considered the foregoing, the Court GRANTS petitioner’s motion to file his

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proposed supplemental brief, Dkt. 109. Petitioner shall file his supplemental brief within 14 days

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of the date of this Order. The Court RESERVES RULING on petitioner’s request to set a briefing

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schedule. The Court is open to petitioner’s suggestion of bifurcating the briefing, but respondent

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has not had an opportunity to weigh in on this proposal. Thus, within 14 days of the date of this

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Order, the parties shall meet and confer and then file a joint status report proposing a briefing

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schedule. If the parties do not agree, they may present their individual positions in their filing.

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After reviewing the parties’ joint status report, the Court will set a briefing schedule.
The Clerk is directed to send copies of this order to the parties and to the Honorable Richard
A. Jones.
Dated this 24th day of January, 2019.

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Mary Alice Theiler
United States Magistrate Judge

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ORDER ON PETITIONER’S MOTION TO
FILE SUPPLEMENTAL BRIEF AND SET
BRIEFING SCHEDULE - 3