Miller v. Ferguson

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND DISMISSING FEDERAL HABEAS CORPUS ACTION. The Report and Recommendation 13 is ADOPTED IN PART. The Petition for a Writ of Habeas Corpus 1 and this action are DISMISSED with prejudice. A certificate of appealability is DENIED. This matter is CLOSED. Signed by Judge Ricardo S. Martinez. (cc:JPD)(LW)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 KENNETH MILLER, 9 10 11 12 Petitioner, v. ROBERT FERGUSON, Washington State Attorney General, CASE NO. C18-530RSM ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND DISMISSING FEDERAL HABEAS CORPUS ACTION Respondent. 13 14 15 Petitioner, proceeding under 28 U.S.C. § 2254, seeks to challenge his state court 16 conviction on the basis of ineffective assistance of counsel. Dkts. #1 and #2. The Honorable 17 James P. Donohue, United States Magistrate Judge, thoroughly considered the Petition and 18 19 determined that this Court did not have subject matter jurisdiction and accordingly recommended that Petitioner’s action be dismissed. Dkt. #13. Petitioner has filed Objections to the Report and 20 21 22 Recommendation. Dkt. #15. Having reviewed the Objections and the rest of the record, the Court adopts the Report and Recommendation in part and dismisses the Petition. 23 Petitioner was previously convicted of a felony offense in a Washington State court and 24 under Washington State law. Petitioner believes that his trial counsel was ineffective and that he 25 was denied his Sixth Amendment right to counsel. Dkt. #1 at ¶ 5.1. Petitioner seeks relief on 26 that basis. However, at Petitioner’s request, the parties have not briefed the substantive issue and ORDER – 1 1 2 instead have addressed whether Petitioner is “in custody” such that the Court has jurisdiction under 28 U.S.C. § 2254. 3 By the time the Petition was filed, Petitioner had already served his jail sentence and his 4 term of community custody. Dkt. #1 at ¶ 9.1. Thus, Petitioner concedes that he is not in the 5 6 physical custody of the State. Id. However, as a consequence of Petitioner’s conviction, he may not lawfully own, possess, or have a firearm under his control. REV. CODE WASH. § 9.41.040(1). 7 8 9 Petitioner maintains that this restriction on his Constitutional right is a “serious disability which suffices to constitute ‘custody’ for habeas corpus purposes.” Dkt. #1 at ¶ 9.2. 10 As set forth in the Report and Recommendation, no legal authority establishes that a 11 restriction on the possession of firearms places a person “in custody” for the purpose of habeas 12 corpus petitions. Certain restraints upon the “liberty to do those things which in this country free 13 14 15 16 [people] are entitled to do,” can constitute custody for purposes of habeas relief. Jones v. Cunningham, 371 U.S. 236, 243 (1963). But within the Ninth Circuit, “[t]he precedents that have found a restraint on liberty [to constitute “custody”] rely heavily on the notion of a physical sense 17 of liberty—that is, whether the legal disability in question somehow limits the putative habeas 18 petitioner’s movement.” Dkt. #13 at 6 (quoting Williamson v. Gregoire, 151 F.3d 1180, 1183 19 (9th Cir. 1998)). 20 21 22 23 24 Petitioner’s Objections1 retrace many of the same arguments he has previously advanced, while adding little. On the whole, Petitioner’s arguments stretch the precedent upon which they rely beyond recognition. For instance, Petitioner argues that the Report and Recommendation adopts an overly rigid distinction between direct and collateral consequences of a conviction and 25 26 1 Petitioner’s Objections are over-length under Local Civil Rule 72. Accordingly, the Court need not consider pages filed in excess of the applicable limit. Even so, nothing therein would alter the Court’s decision. ORDER – 2 1 that such an approach has been rejected by the Supreme Court. Dkt. #15 at 4–5 (relying on 2 Padilla v. Kentucky, 559 U.S. 356 (2010)). But Padilla’s consideration of direct and collateral 3 consequences was in a markedly different context and is inapplicable. The Court does not 4 understand Petitioner’s argument to be that his counsel was ineffective by failing to inform 5 6 Petitioner of the effect a conviction would have on his right to bear arms. This presents but one instance of Petitioner’s arguments that, while convincingly made, lack an adequate legal basis. 7 8 9 10 In sum, Petitioner’s Objections do not establish any factual or legal errors in the Report and Recommendation. Under the prevailing law and for the reasons aptly articulated in the Report and Recommendation, Petitioner is not “in custody” and therefore cannot pursue this Petition. 11 The Court does diverge from the Report and Recommendation in one regard. The Court 12 does not believe that a certificate of appealability should issue. In a habeas proceeding under 28 13 14 15 16 U.S.C. § 2254, a certificate of appealability should issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). A substantial showing requires that “jurists of reason would find it debatable whether the petition states a valid 17 claim of the denial of a constitutional right.” Wilson v. Belleque, 554 F.3d 816, 826 (9th Cir. 18 2009). Where a petition is dismissed on procedural grounds, the petitioner must also show that 19 “jurists of reason would find it debatable whether the district court was correct in its procedural 20 ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As established in the Report and 21 22 23 24 Recommendation, Petitioner is clearly not in custody for purposes of § 2254 and the Court finds that reasonable jurists would not find such a procedural ruling debatable. Accordingly, the Court will not grant a certificate of appealability. 25 Having reviewed the Petition for a Writ of Habeas Corpus, Petitioner’s Brief in Support, 26 Respondent’s Answer, Petitioner’s Response, the Report and Recommendation, Petitioner’s ORDER – 3 1 2 Objections, Respondent’s Response to Objections, and the remainder of the record, the Court hereby finds and ORDERS: 3 1. The Report and Recommendation (Dkt. #13) is ADOPTED IN PART. 4 2. The Petition for a Writ of Habeas Corpus (Dkt. #1), and this action, are DISMISSED 5 6 with prejudice. 3. A certificate of appealability is DENIED. 7 8 9 10 11 4. The CLERK IS DIRECTED to send a copy of this Order to the parties and to Magistrate Judge James P. Donohue. 5. This matter is CLOSED. DATED this 17 day of December 2018. 12 A 13 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER – 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?