Bale v. Holbrook

Filing 22

ORDER that Respondent is directed to file a supplemental answer on or before September 4, 2017 addressing the merits of petitioner's grounds 9, 13, 15, 17, and 21, in addition to his previous arguments addressing exhaustion, procedural de fault, and mootness. Petitioner may reply to this supplemental answer on or before October 4, 2017. The Clerk is instructed to re-note the petition for October 13, 2017. Signed by Magistrate Judge J Richard Creatura. **8 PAGE(S), PRINT ALL**(John Bale, Prisoner ID: 845543)(CMG)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

JOHN MICHAEL BALE,

11
12
13

Petitioner,

CASE NO. 3:17-CV-05188-RBL-JRC
ORDER TO FILE SUPPLEMENTAL
ANSWER

v.
DONALD HOLBROOK,

14

Respondent.

15

The District Court has referred this petition for a writ of habeas corpus to United
16
17
18

States Magistrate Judge, J. Richard Creatura. The authority for the referral is 28 U.S.C. §
636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner John

19

Michael Bale, proceeding pro se and in forma pauperis, filed this petition pursuant to 42

20

U.S.C. § 2254.

21

Petitioner claims 23 grounds for relief. However, he did not raise all of them at all

22

levels of state court review before presenting them in his habeas petition filed with this

23

court. Because petitioner appears to have exhausted the state remedies for some, but not

24

ORDER TO FILE SUPPLEMENTAL ANSWER - 1

1

all, of his claims, his federal habeas petition is a “mixed petition.” Further, his

2

unexhausted claims are also procedurally defaulted, so the remedies normally associated

3

with mixed petitions are inappropriate. This Court, therefore, declines to dismiss the

4
5

petition, as respondent requests, and instead will continue to the merits.
BACKGROUND

6

In an unpublished opinion, the Washington Court of Appeals summarized the facts
7

giving rise to this petition. Dkt. 17, Ex. 3. In 2012, two officers approached petitioner
8
9
10

while he was with two colleagues in a trailer park. Id. at 1-2. The officers requested his
identification, but petitioner said he was unable to find it. Id. at 2. Noticing petitioner’s

11

“nervous” demeanor, the officers attempted to put petitioner in handcuffs. Id. However,

12

as one officer grabbed petitioner’s wrist, petitioner broke free and ran. Id. The officers

13

pursued and tackled him, then noticed that petitioner was holding a gun. Id. The gun was

14

fully cocked. Id. As petitioner attempted to point the gun at one of the officers, the officer

15

wrestled it away. Id. Petitioner then escaped the officers’ grip and continued to flee. Id.

16

The officers again took chase and eventually subdued him using a stun gun. Id. at 2-3.

17
18

The State charged petitioner with two counts of first degree assault and one count of
possessing a stolen firearm. Id. at 3. A jury found him guilty on all counts. Id.

19

Petitioner appealed his judgment to the Division II Court of Appeals. Dkt. 17, Exs.
20

4, 5. The court of appeals upheld his first-degree assault convictions, but reversed his
21
22
23
24

stolen firearm conviction. Id., Ex. 3. He petitioned the Washington Supreme Court for
review, which denied his request for review. Id., Exs. 7, 8. He ultimately was sentenced
to a term of 490 months imprisonment. Dkt. 1.

ORDER TO FILE SUPPLEMENTAL ANSWER - 2

1

Petitioner then filed a personal restraint petition containing 17 grounds for relief.

2

Id., Ex. 10. The Washington Court of Appeals denied his petition. Id., Ex. 15. Petitioner

3

did not appeal this decision to the Washington Supreme Court, and the Court of Appeals

4
5

decision became final on April 20, 2017. Id., ex. 16.
Petitioner now asks this Court to grant him relief through a petition for habeas

6

corpus. Dkt. 4, 4-1.
7

DISCUSSION
8
9
10

I.

Exhaustion of State Remedies and Procedural Default

“[A] state prisoner must normally exhaust available state judicial remedies before

11

a federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S.

12

270, 275 (1971). A petitioner’s claims are only exhausted after “the state courts [have

13

been given] a meaningful opportunity to consider allegations of legal error without

14

interference from the federal judiciary.” Vasquez v. Hillery, 474 U.S. 254, 257 (1986).

15

“State prisoners must give the state courts one full opportunity to resolve any

16

constitutional issues by invoking one complete round of the State’s established appellate

17
18

review.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petition containing both
exhausted and unexhausted claims is a “mixed petition.” Rose v. Lundy, 455 U.S. 509,

19

522 (1982). Just as federal courts will not entertain an unexhausted claim, federal courts
20

will not hear a mixed petition.
21
22

A.

Exhausted Claims

Petitioner has properly exhausted the five claims that he brought on direct appeal,
23
24

which the Court will reference by their claim number as presented in the petition filed

ORDER TO FILE SUPPLEMENTAL ANSWER - 3

1

with this Court. Petitioner’s 9th ground asserts that the State failed to prove petitioner

2

intended to cause any bodily harm to the officers because he never aimed his gun at them.

3

Dkt. 4-1 at 28-29. Ground 13 asserts that the appellate court erred when it failed to

4
5

conclude that the jury was improperly prejudiced when it knew petitioner had a gun,
despite reversing petitioner’s firearms conviction. Id. at 33-35. Ground 15 claims that the

6

State failed to prove that petitioner actually physically assaulted the officers. Id. at 37-38.
7

Ground 17 asserts that petitioner’s appellate counsel was ineffective because she did not
8
9
10

file a Motion for Reconsideration with the court of appeals. Id. at 40-41. Like petitioner’s
9th ground, ground 21 also asserts that the State failed to prove that he intended to cause

11

the officers any bodily harm. Id. at 47-49. Petitioner brought all five of these claims at

12

each level of review. Dkt. 17, Exs. 3, 4, 5, 7. Though the state supreme court denied

13

review, it nonetheless had the opportunity to consider these allegations of legal error

14

without interference from the federal judiciary. Because of this, petitioner properly

15

exhausted grounds 9, 13, 15, 17, and 21, and this Court may review them on their merits.

16
17
18

In addition, the state court of appeals has already granted relief for one of
petitioner’s claims. Ground 16 alleges that petitioner’s trial counsel was ineffective for
failing to hold the State to its burden of proof on the possession of a stolen firearm

19

charge. Dkt. 4-1 at 39-40. The court of appeals dismissed the firearms charge for
20

insufficient evidence during direct appeal. Dkt. 17, ex. 3 at 7-8. Because this charge was
21
22
23

dismissed, the effectiveness of trial counsel with respect to this charge is moot. This
Court need not analyze ground 16 on its merits.

24

ORDER TO FILE SUPPLEMENTAL ANSWER - 4

1

B.

2

Petitioner has not properly exhausted his remaining claims. He asserts 23 grounds

3

for relief before this Court. Dkt. 4-1. After the Washington Supreme Court denied review

4

of his direct appeal, he filed a timely personal restraint petition containing 17 of these

5

grounds. Dkt. 17, Ex. 10. Petitioner had not presented five of these grounds on direct

6
7

Unexhausted Claims

appeal. The state court of appeals denied relief. Dkt. 17, Ex. 15. However, petitioner did
not file a petition for review with the Washington State Supreme Court and the state court

8

of appeals issued its mandate on April 20, 2017. Id., Ex. 16. As noted above, grounds 9,
9

13, 15, 17, and 21 were properly exhausted and petitioner was granted relief on ground
10
11
12

16 at the state court of appeals. However, petitioner did not allow the Washington
Supreme Court a full opportunity to review the remaining 17 claims. O’Sullivan, 526

13

U.S. at 845. These claims are unexhausted, and this Court will not review unexhausted

14

claims. Picard, 404 U.S. at 275.

15

In addition, petitioner’s unexhausted claims are procedurally defaulted. Procedural

16

default is distinct from exhaustion in the habeas context. Id. at 1230. The procedural

17

default rule bars consideration of a federal claim by a federal court when it is clear that the

18

state court has been presented with the federal claim but declined to reach the issue for

19
20

procedural reasons or it is clear that the state court would hold the claim procedurally
barred. Id. at 1230-31 (citations omitted). If a state procedural rule would now preclude

21

petitioner from raising his claim at the state level, the claim is considered “procedurally
22

defaulted” and the federal courts are barred from reviewing the claim on the merits.
23
24

Boerckel, 526 U.S. at 845; Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). This Court

ORDER TO FILE SUPPLEMENTAL ANSWER - 5

1

will only hear the merits of a procedurally defaulted claim if the petitioner can show “cause

2

for the default and prejudice from a violation of federal law.” Martinez v. Ryan, 566 U.S. 1,

3

10 (2012) (citing Coleman, 501 U.S. at 750). A petitioner can show cause by

4
5

demonstrating that “some objective factor external to the defense impeded [petitioner]’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488

6

(1986).
7

Here, though he filed a personal restraint petition with the court of appeals,
8
9
10

petitioner neglected to do so with the state supreme court. As noted above, this did not
give the state courts a full opportunity to review petitioner’s case for legal error.

11

Petitioner’s judgment and sentence became final in 2015. Petitioner neglected to appeal

12

the court of appeals’ decision within 30 days. Dkt. 17, Ex. 9[A1]; RAP 13.5, 13.5A. In

13

Washington, a petitioner can only file a personal restraint petition within one year of

14

sentence finalization. RCW 10.73.090. Because he did not exhaust his remedies with his

15

initial personal restraint petition and the one-year statute of limitations has expired for a

16

second petition, petitioner can no longer present his remaining claims to the Washington

17
18

Supreme Court. Petitioner’s remaining claims are procedurally barred under state law and
he is now unable to fully exhaust them. Petition has not demonstrated that some objective

19

factor impeded his efforts to comply with state procedure and appeal to the state supreme
20

court. Federal courts will not hear such procedurally barred claims on their merits absent
21
22
23

a showing of cause and prejudice stemming from a violation of federal law. Martinez,
566 U.S. at 10. Because of this, his remaining claims are procedurally barred.

24

ORDER TO FILE SUPPLEMENTAL ANSWER - 6

1

Because of this procedural bar, the remedies normally associated with a mixed

2

petition are inappropriate. The Court will normally dismiss a mixed petition containing

3

both exhausted and unexhausted claims without prejudice. Rose, 455 U.S. at, 522.

4
5

Alternately, the Court can stay the petition “while the petitioner returns to state court to
exhaust his previously unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 275-76

6

(2005). However, the Court only considers these remedies when a state court has not yet
7

had the opportunity to examine a petitioner’s claims. Franklin v. Johnson, 190 F.3d 1223,
8
9
10

1231 (9th Cir. 2002). When a petitioner’s claims are unexhausted, procedurally barred in
state court, and he cannot show cause and prejudice for failing to exhaust his remedies,

11

“the district court dismisses the petition because the petitioner has no further recourse in

12

state court.” Id.

13

Respondent requests that the Court dismiss the petition without prejudice.

14

However, dismissing the petition without prejudice is futile because petitioner no longer

15

has the option of exhausting his claims in state court before returning to federal court. See

16

id. For the same reason, staying the proceeding would serve no purpose. Accordingly, in

17
18

the interest of judicial economy, this Court declines to dismiss the petition or stay the
proceeding and instead recommends that those unexhausted claims be dismissed with

19

prejudice and that those exhausted claims move forward on the merits.
20

//
21
22
23
24

//
//
//

ORDER TO FILE SUPPLEMENTAL ANSWER - 7

1
2
3
4
5

II.

Instructions to Parties and the Clerk
Respondent is directed to file a supplemental answer on or before September 4,

2017 addressing the merits of petitioner’s grounds 9, 13, 15, 17, and 21, in addition to his
previous arguments addressing exhaustion, procedural default, and mootness.
Petitioner may reply to this supplemental answer on or before October 4, 2017.

6

The Clerk is instructed to re-note the petition for October 13, 2017.
7

Dated this 4th day of August, 2017.
8
9

A

10

J. Richard Creatura
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24

ORDER TO FILE SUPPLEMENTAL ANSWER - 8