Petrozzi v. Thurston County Superior Court et al

Filing 24

ORDER denying 22 Motion to Consolidate. Petitioner may file an amended habeas petition on or before 3/16/2018. If petitioner fails to file a petition by the deadline, the Court may recommend that his petition be dismissed for failure to follow a Court order. Signed by Magistrate Judge J Richard Creatura. (Attachments: # 1 Petition for Writ of Habeas Corpus (blank), # 2 copy of the Court's original Order to Show Cause (ECF #8))(CMG)(cc mailed to Petitioner along with a blank Petition & copy of Order #8)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TIMOTHY ROBERT PETROZZI,
Petitioner,

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CASE NO. 3:17-cv-05677-RBL-JRC
ORDER TO SHOW CAUSE

v.
THURSTON COUNTY SUPERIOR
COURT and THURSTON COUNTY
CORRECTIONS,
Respondent.

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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 Timothy Petrozzi challenges his convictions for driving under the influence,
intimidation of a judicial officer, driving without a license, assault, and obstruction of justice. He
claims, among other allegations, that he was denied his First Amendment right when he was
denied a right to be heard in court, that he was improperly profiled and targeted by Lacey police

ORDER TO SHOW CAUSE - 1

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officers, that he received ineffective assistance of counsel, and that two of his defense attorneys

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committed prejudicial misconduct. However, it does not appear that petitioner has exhausted his

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state court remedies. Further, petitioner has included only the Thurston County Superior Court

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and Thurston County Corrections as defendants, rather than the state officer who has custody of

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him. Having reviewed the petition, the Court declines to serve the petition because it does not

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appear that petitioner has exhausted his state remedies and the petition does not comply with the

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Rules Governing Section 2254 Cases. The Court instructs petitioner to show cause by October

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27, 2017 why the Court should not recommend his habeas petition be dismissed. In the

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alternative, petitioner may voluntarily dismiss his habeas petition and refile the petition once he

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has completed his current appeals process and exhausted his state court remedies. Petitioner

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could also move the court to stay his petition until he exhausts his state remedies.

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BACKGROUND
Petitioner was convicted of driving under the influence, hit and run, intimidation of a

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judicial officer, driving without a license, assault in the third degree, and obstruction of justice in

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2017. Dkt. 7 at 1. He timely filed an appeal with the Washington Court of Appeals raising

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numerous grounds, including violations of the 1st, 4th, 5th, 6th, 7th, 8th, 9th, and 14th

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Amendments. Dkt. 7 at 2. His direct appeal is still pending in the Court of Appeals.

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DISCUSSION

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I.

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Petitioner has not yet exhausted his state court remedies. “[A] state prisoner must

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normally exhaust available state judicial remedies before a federal court will entertain his

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petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner’s claims

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are only exhausted after “the state courts [have been given] a meaningful opportunity to consider

Exhaustion

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ORDER TO SHOW CAUSE - 2

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allegations of legal error without interference from the federal judiciary.” Vasquez v. Hillery, 474

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U.S. 254, 257 (1986). “State prisoner must give the state courts one full opportunity to resolve

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

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review.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

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Here, petitioner notes that he has filed an appeal that is still pending with the Washington

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Court of Appeals. Dkt. 7 at 2. Though he is currently exhausting his state remedies, because the

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state courts have not yet had a full and fair opportunity to examine his claims without federal

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interference, this Court will not entertain his habeas petition at this time. Petitioner is therefore

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instructed to show cause why the Court should not recommend dismissal of his action. In the

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alternative, petitioner may voluntarily dismiss his claim. He can then complete his state appeals

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process and exhaust all state remedies before refiling his habeas petition with the Court.

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Petitioner could also move the Court to stay his action until his state remedies have been

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exhausted.

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II.

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Petitioner has also included the incorrect defendants on his habeas petition. Under Rule

Incorrect Defendants

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2(a) of the Rules Governing Section 2254 Cases, “the petition must name as respondent the state

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officer who has custody.” (emphasis added). Further,

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[t]he petition must: (1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground; (3) state the relief requested; (4) be
printed, typewritten, or legibly handwritten; and (5) be signed under penalty of
perjury by the petitioner or person authorized to sign it for the petitioner under 28
U.S.C. §2242.

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Id. at Rule 2(c). The petition must “substantially follow” a form prescribed by the local district

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court or the form attached to the Rules Governing Section 2254 Cases. Id. at Rule 2(d).

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ORDER TO SHOW CAUSE - 3

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Here, petitioner has named the Thurston County Superior Court and “Thurston County

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Corrections” as the sole respondents in violation of Rule 2(a). If petitioner intends to pursue this

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habeas action, he must file a petition naming the correct defendant in compliance with Rule 2(a)

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of the Rules Governing Section 2254 Cases on the form provided by the Court. The defendant

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should be the head of the jail where petitioner resides. Because petitioner currently resides at the

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Thurston County Jail, the appropriate defendant is Thurston County Sheriff John Snaza.

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CONCLUSION
If petitioner fails to adequately address the issues raised herein and show cause on or
before October 27, 2017 why the Court should not recommend dismissal, the undersigned will

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recommend dismissal of this action. In the alternative, petitioner may voluntarily dismiss the

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petition. Petitioner may then complete his state court appeals process and exhaust his state court

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remedies before refiling his habeas petition for consideration. Petitioner could also move the

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Court to stay the action until petitioner have exhausted his state remedies.

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The Clerk is directed to provide copies of this Order to petitioner.

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Dated this 4th day of October, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE - 4