Rishor v. USA
Filing
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ORDER granting the Government's 17 MOTION to Recharacterize Petitioner Section 2255 Motion as a 28 U.S.C. § 2254 Motion and To Designate New Respondent. Petitioner's 1 Section 2255 Motion shall be deemed as having been filed p ursuant to 28 U.S.C. § 2254. The United States is terminated and the Washington State Attorney General is substituted as the proper respondent. Clerk is directed to electronically serve the Washington State Attorney General a copy of this of this Order, 2254 petition and exhibits in support thereof. Documents sent via email on 1/30/2019. Signed by Judge Marsha J. Pechman. (PM) cc: petitioner via first class mail
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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KRIS RISHOR,
Petitioner,
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CASE NO. C18-0708MJP
v.
UNITED STATES OF AMERICA,
ORDER GRANTING MOTION TO
RECHARACTERIZE
PETITIONER’S 28 U.S.C. § 2255
MOTION AS A 28 U.S.C. § 2254
MOTION
Respondent.
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THIS MATTER comes before the Court on the Government’s Motion to Recharacterize
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Petitioner’s Section 2255 Motion as a 28 U.S.C. § 2254 Motion and To Designate New
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Respondent. (Dkt. No. 17.) Having reviewed the Motion, the Response (Dkt. No. 21) and the
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related record, the Court GRANTS the Motion.
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Background
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In 2018, Petitioner Kirk Rishor filed this Motion to Vacate, Set Aside, or Correct
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Sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”). (Dkt. No. 1.) Mr. Rishor raises a
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ORDER GRANTING MOTION TO RECHARACTERIZE PETITIONER’S 28 U.S.C. § 2255 MOTION AS A 28
U.S.C. § 2254 MOTION - 1
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claim for ineffective assistance of counsel with respect to an appeal filed in a separate case he
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previously filed pursuant to 28 U.S.C. § 2254 (“Section 2254”). (Id.)
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The relevant procedural history is as follows:
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In 2010, Mr. Rishor pled guilty to federal charges relating to drug possession and
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distribution and was sentenced to 132 months incarceration. (See Case No. 10-0378MJP, Dkt.
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Nos. 151, 174 (the “2010 Federal Conviction”).) One of the sentencing factors considered by the
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court was the fact that Mr. Rishor was classified as a “career offender” under United States
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Sentencing Guideline § 4B1.1 due to his prior state convictions for assault and unlawful
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possession of a firearm (the “2004 State Conviction”). (Id., Dkt. Nos. 139, 164, 165.)
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In 2011, Mr. Rishor filed a petition challenging the 2004 State Conviction pursuant to
Section 2254. (See Case No. 11-1492MJP, Dkt. No. 1.)
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While his Section 2254 petition was pending with respect to the 2004 State Conviction,
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Mr. Rishor filed a separate petition challenging his 2010 Federal Conviction pursuant to Section
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2255. (See Case No. 12-2180MJP, Dkt. No. 1, Ex. 1.) In that petition, Mr. Rishor claimed that,
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because the 2004 State Conviction was invalid, he should not have been classified as a “career
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offender.” (Id. at 2.) Mr. Rishor claimed that, “due to the fact the Government held the Career
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Offender Guide Lines of Thirty Years to Life over his head if he didn’t take the plea,” his plea
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“was not given knowingly, or intelligently,” but was given “under duress, and coercion.” (Id. at
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3.)
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In 2014, the Court granted Mr. Rishor’s Section 2254 petition challenging his 2004 State
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Conviction. (Case No. 11-1492MJP, Dkt. Nos. 65, 66.) The State of Washington appealed that
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order. (Id., Dkt. No. 67.) In 2015, the Ninth Circuit reversed and remanded with instructions to
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reinstate the judgment denying habeas relief. (Id., Dkt. Nos. 69, 70.)
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ORDER GRANTING MOTION TO RECHARACTERIZE PETITIONER’S 28 U.S.C. § 2255 MOTION AS A 28
U.S.C. § 2254 MOTION - 2
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In 2018, Mr. Rishor filed the present action pursuant to Section 2255, claiming that the
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lawyer who represented him in the appeal of his Section 2254 petition provided ineffective
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assistance of counsel. (Case No. 18-0708, Dkt. No. 1.) In particular, Mr. Rishor claims that his
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lawyer “filed a brief on Petitioner’s behalf without being appointed to do so,” and “failed to
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argue, or put forth evidence on the record, that showed Petitioner’s Due Process was violated
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when the State failed to arraign him, and failed to give him notice of the charges against him.”
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(Id. at 4-6.)
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Discussion
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In its Motion to Recharacterize, the United States contends that, because it was not
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involved in the state prosecution or the appeal giving rise to the Section 2255 petition presently
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before the Court, the petition should be recharacterized as a Section 2254 petition, and the
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Washington State Attorney General should be substituted as the proper respondent. (Dkt. No.
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17.) Mr. Rishor responds that while “[t]he government is correct, this case stems from a
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conviction in the State of Washington, and a 28 U.S.C. § 2254,” he “feels he has filed the proper
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document.” (Dkt. No. 21.)
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Section 2255 provides that “[a] prisoner in custody under sentence of a court established
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by Act of Congress claiming the right to be released upon the ground that the sentence was
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imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject
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to collateral attack, may move the court which imposed the sentence to vacate, set aside or
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correct the sentence.” 28 U.S.C. § 2255(a) (emphasis added). Section 2254 provides that “a
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district court shall entertain an application for a writ of habeas corpus in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)
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ORDER GRANTING MOTION TO RECHARACTERIZE PETITIONER’S 28 U.S.C. § 2255 MOTION AS A 28
U.S.C. § 2254 MOTION - 3
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(emphasis added). In other words, Section 2255 provides a means to challenge a sentence
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imposed by a federal court, while Section 2254 provides a means to challenge a sentence
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imposed by a state court.
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In the present action, Mr. Rishor contends that he received ineffective assistance of
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counsel in the appeal of his Section 2254 petition relating to his 2004 State Conviction. That
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appeal, while taken in a federal appellate court and relating to a proceeding originating in a
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federal district court, ultimately challenged a conviction that was imposed “pursuant to the
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judgment of a State court.” As such, Mr. Rishor’s petition is properly understood as a challenge
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to his 2004 State Conviction, and not a direct collateral challenge to his 2010 Federal
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Conviction. The correct procedural mechanism is a petition under Section 2254, and the proper
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respondent is the State of Washington.
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Conclusion
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For the reasons set forth above, the Court GRANTS the Motion to Recharacterize
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Petitioner’s Section 2255 Motion and ORDERS as follows:
(1) Petitioner’s Section 2255 Motion shall be deemed as having been filed pursuant to 28
U.S.C. § 2254;
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(2) The United States shall be terminated as a respondent;
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(3) The Clerk of Court is directed to send to the Attorney General of the State of
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Washington, via e-mail, copies of Mr. Rishor’s petition (Dkt. No. 1), exhibits in
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support thereof (Dkt. No. 1-1) and this Order. The Clerk shall also direct a copy of
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this Order to Mr. Rishor;
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(4) Within forty-five (45) days after such service, respondent shall file and serve an
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answer in accordance with Rule 5 of the Rules Governing Section 2254 Cases in
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ORDER GRANTING MOTION TO RECHARACTERIZE PETITIONER’S 28 U.S.C. § 2255 MOTION AS A 28
U.S.C. § 2254 MOTION - 4
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United States District Courts. As part of its answer, respondent shall state its position
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as to whether petitioner has exhausted available state remedies and whether an
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evidentiary hearing is necessary. Respondent shall not file a dispositive motion in
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place of an answer without first showing cause as to why an answer is inadequate.
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Respondent shall file the answer with the Clerk of the Court and serve a copy of the
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answer on petitioner; and
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(5) The answer will be treated in accordance with LCR 7(d)(3). Accordingly, on the face
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of the answer, respondent shall note it for consideration on the fourth Friday after
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filing. Petitioner may file and serve a response not later than the Monday
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immediately preceding the Friday designated for consideration of the matter, and
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respondent may file and serve a reply not later than the Friday designated for
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consideration of the matter.
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Dated January 30, 2019.
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A
Marsha J. Pechman
United States District Judge
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ORDER GRANTING MOTION TO RECHARACTERIZE PETITIONER’S 28 U.S.C. § 2255 MOTION AS A 28
U.S.C. § 2254 MOTION - 5
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