Willis v. Kiser

Filing 14

ORDER ADOPTING the 12 REPORT AND RECOMMENDATION. The Court GRANTS respondent's motions and dismisses petitioner's habeas petition without leave to amend. A certificate of appealability should not be issued. Signed by Judge Robert J. Bryan. **2 PAGE(S), PRINT ALL**(Darrel Willis, Prisoner ID: 854804)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DARREL PATRICK WILLIS,
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Petitioner,

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CASE NO. 3:17-CV-05772-RJB
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
NICK KISER,

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Respondent.

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This matter comes before the court on the Report and Recommendation of Magistrate
Judge J. Richard Creatura (Dkt. 12) and on the petitioner’s Objections to the Report and
Recommendation (Dkt. 13). The court is familiar with the records and files herein. For the
reasons stated below, the Report and Recommendation should be adopted and the matter should
be dismissed.
This matter is confusing because it was brought under a “Petition Under 28 U.S.C. 2254
for Writ of Habeas Corpus by a Person in State Custody” Dkt. 4. Section 2254 only applies to
prisoners currently in state custody, on a current conviction. The issues raised by the defendant
do not reach the reasons that he may be in state custody now, but address prior proceedings.
Petitioner’s request made in the § 2254 petition reads as follows: “Therefore, petitioner
asks that the court grant the following relief: An (sic) finding that the violations were unlawful

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ORDER ADOPTING REPORT AND
RECOMMENDATION - 1

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and any time served as a result of hose violations be credited to this current D.O.C. time I am

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serving and allow the § 1983 action to move forward or any other relief to which petitioner may

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be entitled.”

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The relief requested is not available under a § 2254 petition.

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The Report and Recommendation of the Magistrate Judge should be ADOPTED. The

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respondent here, Mr. Kiser, does not have Mr. Willis in custody. The § 2254 claim is moot.

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The § 2254 claim should be DENIED without leave to amend. Because petitioner does not make

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a substantial showing of a denial of a constitutional right, a certificate of Appealability should

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not issue.

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Mr. Willis may be intending to sue Mr. Kiser for the events surrounding his earlier state

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conviction and sentence. Such a claim may be brought as a civil rights claim against an

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individual but cannot be raised in s §2254 petition. The court makes no finding regarding the

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merits of any claim that petitioner may have under § 1983 or any other law.

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For the foregoing reasons it is now ORDERED that:

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(1)

The Court adopts the Report and Recommendation.

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(2)

The Court GRANTS respondent’s motions and dismisses petitioner’s habeas

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petition without leave to amend.

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(3)

A certificate of appealablity should not be issued.

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DATED this 26th day of February, 2018.

A

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ROBERT J. BRYAN
United States District Judge

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ORDER ADOPTING REPORT AND
RECOMMENDATION - 2