Combs v. Clark County Prosecuting Attorney's Office

Filing 30

ORDER denying 28 Motion to Vacate signed by Magistrate Judge Karen L Strombom.(MET) cc: Petitioner

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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EDDIE J. COMBS,
No. C11-5884 RBL/KLS

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Petitioner,
v.
JEFFREY A. UTTECHT,
Respondent.

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ORDER DENYING MOTION TO
VACATE

Before the Court is Petitioner’s Motion to Vacate. ECF No. 28. Having reviewed the
motion, Respondent’s response (ECF No. 29), and balance of the record, the Court finds that the
motion should be denied.

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DISCUSSION
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Petitioner Eddie J. Combs filed a habeas corpus petition in October 2011. ECF No. 1.

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On March 5, 2012, Respondent filed a motion to dismiss for lack of subject matter jurisdiction

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and statement of cause for filing a dispositive motion in lieu of an answer. ECF Nos. 26 and 27.

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Under separate Report and Recommendation, the undersigned is recommending that the motion

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to dismiss be granted because this Court lacks subject matter jurisdiction over Mr. Combs’

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habeas petition.

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On March 7, 2012, Mr. Combs filed a “Motion to Vacate 09-104296-0/9A.44.10640.130

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‘Poisoned – Fruit’ of Civil Violation Rights”. ECF No. 28. While this motion is extremely

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confusing, the undersigned understands the motion to be a request that for a judgment in Mr.

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Combs’ favor because he believes that the Respondent has not responded to his habeas petition.

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Mr. Combs also states that he has a 2005 § 1983 civil rights action that is pending. See ECF No.
ORDER - 1

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28, at 1 and 3 (an action based on prosecuting attorney allegedly stacking charges and a “forced

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plea bargain” that was accomplished by “mis-use; abuse; and application of the state’s power in

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violation of Combs constitutional, Civil-State; Federal and 14th/5 Due Process and Equal

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Protections Rights:…”) See id. at 3. The motion to vacate also appears to allege a “poisoned

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fruit” as to Cause No. 09-104276-0. See id. at 3.
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In his motion to dismiss, the Respondent argued that Mr. Combs’ habeas petition should

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be dismissed with prejudice because his petition challenges the continuation of the requirement

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of sex offender registration. See ECF No. 26. Mr. Combs’ sole habeas claim, that the sex

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offender registration requirement in his case should have expired, is a collateral consequence of

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his 1990 conviction for indecent liberties. Therefore, he is not “in custody” for federal habeas

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corpus purposes. See Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1997). Therefore,

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this Court lacks subject matter jurisdiction over his habeas petition, based on 28 U.S.C. § 2254
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and the undersigned has recommended that Mr. Combs’ habeas petition be dismissed with

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prejudice. Accordingly, the undersigned also recommends Mr. Combs’ motion to vacate be

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denied.

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It is ORDERED:

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(1)

Petitioner’s Motion to Vacate (ECF No. 28) is DENIED.

(2)

The Clerk shall send a copy of this Order to Petitioner and counsel for

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Respondent.
DATED this 18th

day of April, 2012.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 2