Vess v. State of Washington

Filing 4

ORDER TO SHOW CAUSE or AMEND, signed by Magistrate Judge J Richard Creatura. Show Cause Response or Amended Petition due by 10/27/2017. (Attachments: # 1 Amd Petition (blank))**19 PAGE(S), PRINT ALL**(Jack Vess, Prisoner ID: 327264)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JACK DANIEL VESS II,
Petitioner,

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CASE NO. 3:17-cv-05700-RBL-JRC
ORDER TO SHOW CAUSE OR
AMEND

v.
STATE OF WASHINGTON,
Respondent.

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

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Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §

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636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner filed the

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petition pursuant to 28 U.S.C. § 2254.

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Petitioner Jack Daniel Vess II challenges his convictions for rape in the second degree

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and incest in the first degree. He claims that his sentence violated the Fourth Amendment and

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that the State produced insufficient and contradictory evidence that cannot sustain his conviction.

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However, petitioner has only included the State of Washington as the defendant, rather than the

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ORDER TO SHOW CAUSE OR AMEND - 1

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state officer who has custody of him. Having reviewed the petition, the Court declines to serve

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the petition because the petition does not comply with the Rules Governing Section 2254 Cases.

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The Court, however, provides petitioner leave to file an amended petition by October 27, 2017 to

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cure the deficiencies identified herein.

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BACKGROUND
Petitioner was convicted of second degree rape and first degree incest in 2009. Dkt. 3 at

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2. He filed a direct appeal with the Court of Appeals claiming that the State improperly

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introduced testimony, the trial court abused its discretion, the State mischaracterized its burden

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of proof, and the trial court violated his due process rights when he was sentenced as a persistent

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offender. Id. at 2-3. The Court of Appeals denied him relief. Id. He brought identical claims

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before the Washington Supreme Court, who similarly denied him relief. Id. at 3. It appears

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prisoner has not filed a state personal restraint petition before filing the current habeas action.

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DISCUSSION

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Petitioner has included the incorrect defendant on his habeas petition. Under Rule 2(a) of

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the Rules Governing Section 2254 Cases, “the petition must name as respondent the state officer

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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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Here, petitioner has named the State of Washington as the sole respondent in violation of
Rule 2(a). If petitioner intends to pursue this habeas action, he must file an amended petition

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ORDER TO SHOW CAUSE OR AMEND - 2

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naming the correct defendant in compliance with Rule 2(a) of the Rules Governing Section 2254

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Cases on the form provided by the Court. The amended petition must also be legibly rewritten or

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retyped in its entirety, it should be an original and not a copy, it should contain the same case

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number, and it may not incorporate any part of the original petition by reference. The amended

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petition will act as a complete substitute for the original petition, and not as a supplement.

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Included as the defendant should be the superintendent of the prison where petitioner’s resides.

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Because petitioner currently resides at the Washington State Penitentiary, the appropriate

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defendant is Superintendent Donald Holbrook.

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CONCLUSION

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If petitioner fails to adequately address the issues raised herein and file an amended

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petition on or before October 27, 2017, the undersigned will recommend dismissal of this

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action.

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The Clerk is directed to provide petitioner with the forms for filing a petition for habeas

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corpus relief pursuant to 28 U.S.C. § 2254. The Clerk is further directed to provide copies of this

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Order to petitioner.

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Dated this 25th day of September, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND - 3