Smith v. Holbrook

Filing 6

ORDER TO SHOW CAUSE, signed by Magistrate Judge J Richard Creatura. Petitioner's Show Cause Response or Amended Petition due by 10/27/2017. (Attachments: # 1 Amended Habeas Petition (blank))**19 PAGE(S), PRINT ALL**(Jonathan Smith, Prisoner ID: 849151)(CMG)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 JONATHAN D. SMITH, Petitioner, 11 12 13 16 17 18 19 20 21 22 23 ORDER TO SHOW CAUSE v. DONALD HOLBROOK, Respondent. 14 15 CASE NO. 3:17-cv-05664-RJB-JRC The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner filed the petition pursuant to 28 U.S.C. § 2254. Petitioner Jonathan Smith challenges his convictions for second degree assault and possession of methamphetamine. He alleges that his trial counsel misinformed him about his guilty plea, that he pled guilty because he was mentally coerced into doing so, and that trial counsel was ineffective for failing to reduce petitioner’s bail. However, petitioner has not presented his arguments to any Washington courts before presenting them here. It appears that 24 ORDER TO SHOW CAUSE - 1 1 all of his claims remain unexhausted. Therefore, the Court orders petitioner to show cause why 2 his action should not be dismissed without prejudice to allow him to exhaust his state judicial 3 remedies. 4 5 BACKGROUND In 2016, petitioner pled guilty to one count of second degree assault and one count of 6 possession of methamphetamine. Dkt. 5 at 1. He explains that he believes he received ineffective 7 assistance of counsel, noting that he spent 353 days in jail and was visited by his attorney “less 8 than a dozen times.” Id. at 5. He notes that he has not raised either a direct appeal or a collateral 9 attack, but instead filed a motion to dismiss with the Pacific County Superior Court before his 10 conviction. Dkt. 5 at 3. He asks this Court to reverse his conviction and release him from custody 11 “with credit for time served.” Id. at 15. 12 13 DISCUSSION Plaintiff raises four grounds for habeas relief. However, he failed to raise these grounds 14 in the state courts before presenting them here. “[A] state prisoner must normally exhaust 15 available state judicial remedies before a federal court will entertain his petition for habeas 16 corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner’s claims are only exhausted 17 after “the state courts [have been given] a meaningful opportunity to consider allegations of legal 18 error without interference from the federal judiciary.” Vasquez v. Hillery, 474 U.S. 254, 257 19 (1986). “State prisoners must give the state courts one full opportunity to resolve any 20 constitutional issues by invoking one complete round of the State’s established appellate 21 review.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 22 23 Here, it appears that petitioner has not properly exhausted these claims. He has not given Washington state courts the opportunity to rule on any of his habeas claims because he has not 24 ORDER TO SHOW CAUSE - 2 1 presented them in either a direct appeal or a personal restraint petition. Therefore, petitioner has 2 not allowed the Washington state courts a full opportunity to review them. Vasquez 474 U.S. at 3 257. This Court will not review unexhausted claims. Picard, 404 U.S at 275. 4 CONCLUSION 5 Petitioner must file, on or before October 27, 2017, an amended petition under 28 6 U.S.C. § 2254 alleging facts, if any, showing that his grounds for relief have been properly 7 exhausted in state court and otherwise showing cause why this matter should not be dismissed 8 without prejudice. Alternatively, petitioner may show cause why this action should be stayed or 9 voluntarily dismissed without prejudice to allow him to present his argument before the 10 Washington courts. If the Washington courts decline to grant him relief and he properly exhausts 11 his state options, he may return to this Court and file a new habeas petition. 12 13 14 15 Failure to timely comply with this Order will result in a recommendation that this action be dismissed without prejudice. The Clerk shall send a copy of this order to petitioner and the Court’s habeas corpus form petition for 28 U.S.C. § 2254 petitions. 16 17 Dated this 25th day of September, 2017. A 18 19 J. Richard Creatura United States Magistrate Judge 20 21 22 23 24 ORDER TO SHOW CAUSE - 3

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