Bale v. Holbrook

Filing 28

ORDER that petitioner's 24 objection, which the Court interprets as a motion for reconsideration is denied. Signed by Magistrate Judge J Richard Creatura.**4 PAGE(S), PRINT ALL**(John Bale, Prisoner ID: 845543)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOHN MICHAEL BALE,
Petitioner,

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v.
DONALD HOLBROOK,

CASE NO. 3:17-cv-05188-RBL-JRC
ORDER DENYING PETITIONER’S
MOTION TO RECONSIDER THE
COURT’S ORDER

Respondent.

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The District Court referred this petition for a writ of habeas corpus to United States

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Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local

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Magistrate Judge Rules MJR3 and MJR4.

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After this Court ordered respondent to file a supplemental answer and recommended that

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several of petitioner’s claims be dismissed for failure to exhaust, petitioner filed this objection to

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the order. Dkt. 24. He objects to the Court’s recommended dismissal and requests that the claims

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be considered on the merits even though the Court previously found them to be unexhausted.

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Though filed as an objection, the Court interprets this as a motion for reconsideration. However,

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ORDER DENYING PETITIONER’S MOTION TO
RECONSIDER THE COURT’S ORDER - 1

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because the Court does not find that it committed manifest error and there are no new facts or

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legal authority that were not already presented when the Court made its previous ruling, the

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Court denies the motion.

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DISCUSSION
Petitioner requests that the Court reconsider its previous ruling and analyze his

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ineffective assistance of counsel claim, as well as several other claims, on the merits. Though he

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styles it as an objection, in light of the request to reevaluate the Court’s previous decision, the

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Court treats this filing as a motion for reconsideration. Motions for reconsideration are

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disfavored under the Local Rules. See Local Rule 7(h). “The Court will ordinarily deny such

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motions in the absence of a showing of manifest error in the prior ruling or a showing of new

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facts or legal authority which could not have been brought to its attention earlier with reasonable

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diligence.” Id.

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Petitioner first asks that the Court consider on the merits his ineffective assistance of

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counsel claim related to his lack of access to the jail law library. Dkt. 24 at 1-2. It is unclear

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which ineffective assistance claim petitioner is referencing; he raised ineffective assistance of

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trial counsel in grounds 6, 16, and 20 of his habeas petition, and raised his lack of access to the

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law library in ground 2. Dkt. 4-1 at 2-5, 11-12, 17-25, 39-40, 45-46. However, the Court

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recommended dismissal of all of these claims as unexhausted and procedurally defaulted in its

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previous order. Dkt. 22, 5-7. Petitioner has not presented new facts or legal authority that could

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not have been brought to the Court’s attention earlier indicating this ruling was improper. Local

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Rule 7(h).

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Further, there is no indication that the Court committed manifest error. The Court found
that, though petitioner included the above noted grounds in his personal restraint petition, he

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ORDER DENYING PETITIONER’S MOTION TO
RECONSIDER THE COURT’S ORDER - 2

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neglected to present to them at all levels of the state courts. Dkt. 22 at 5. Because of this, the

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Court determined that it could not review them. Further, it found that the grounds were

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procedurally defaulted because they could no longer be reviewed by state courts, and therefore

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recommended dismissal. Id. at 5-7. Petitioner urges that his claims have merit and that the Court

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should consider them. However, regardless of merit, the Court cannot consider claims in a

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habeas petition unless they have already been exhausted in state court. Picard v. Connot, 404

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U.S. 270, 275 (1971). Because it appears the Court correctly found that petitioner’s above noted

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grounds were unexhausted, the Court denies petitioner’s motion for reconsideration on this

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ground.

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Petitioner also asks the Court to reconsider its recommended dismissal of the other claims

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the Court found to be unexhausted. Dkt. 24 at 3. He argues that the Court incorrectly found these

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unexhausted because he included them in his statement of additional grounds (“SAG”) in the

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Washington Court of Appeals, and the Washington Supreme Court are tasked with reviewing

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“the whole case as a whole not just in part.” Id. As the Court noted in its previous order, “a state

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prisoner must normally exhaust available state judicial remedies before a federal court will

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entertain his petition for habeas corpus.” Picard, 404 U.S. at 275. Further, “[t]o exhaust state

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remedies, petitioner must present each of his claims to the state’s highest court. In turn, the

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state’s highest court must have disposed of each claim on the merits.” James v. Borg, 24 F.3d 20,

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24 (9th Cir. 1994) (citing Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979)). Though

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petitioner claims he raised all his current habeas grounds in his SAG, he presented only four

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grounds to the Washington Supreme Court for Review. Dkt. 17, Ex. 7 at 1. As noted in the

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Court’s previous order, those grounds are reflected in five of the grounds presented in

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petitioner’s habeas petition. However, he did not present his remaining 17 grounds to the

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ORDER DENYING PETITIONER’S MOTION TO
RECONSIDER THE COURT’S ORDER - 3

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Washington Supreme Court. Because petitioner relies on arguments provided to the Court of

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Appeals, but not identified when he appealed its decision, it cannot be fairly said that he

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presented each of his claims to the state’s highest court. Borg, 24 F.3d at 24. Therefore, the Court

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did not commit manifest error when it found that petitioner had not exhausted those claims. The

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Court denies petitioner’s motion for reconsideration (Dkt. 24).

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CONCLUSION
Petitioner fails to show manifest error in the prior ruling or present new facts or legal

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authority for his position that could not have been brought to the Court’s attention earlier with

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reasonable diligence. Regardless of the merits of petitioner’s ineffective assistance of counsel

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claim, the Court did not commit manifest error when it determined it was exhausted. Similarly,

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because petitioner did not present his 17 identified claims to Washington’s highest court, this

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Court did not commit manifest error when it found them unexhausted. Therefore, petitioner’s

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objection, which the Court interprets as a motion for reconsideration (Dkt. 24), is denied.

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Dated this 11th day of October, 2017.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING PETITIONER’S MOTION TO
RECONSIDER THE COURT’S ORDER - 4