Plush v. WA State

Filing 44

ORDER ADOPTING 41 REPORT AND RECOMMENDATION by Judge Benjamin H. Settle. Plush's Petition, Dkts. 1 , 32 , is DISMISSED without prejudice. All other motions, Dkts. 38 , 39 , are DENIED as moot. Certificate of Appealability is DENIED. **5 PAGE(S), PRINT ALL**(Cyrus Plush, Prisoner ID: 720626) (AMD)

Case 3:20-cv-05258-BHS Document 44 Filed 09/17/21 Page 1 of 5

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C20-5258 BHS

CYRUS N. PLUSH,
Petitioner,

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v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

WASHINGTON STATE, et al.

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Respondents.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable David W. Christel, United States Magistrate Judge, Dkt. 41, and

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Petitioner Cyrus Plush’s objections to the R&R, Dkt. 43.

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Plush is in custody under a 2018 state court judgment and sentence imposed for

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his 2016 conviction for failure to register as a sex offender. Dkt. 41 at 2. Before he

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initiated his direct appeal from the judgment and sentence, Plush first sought pro se

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discretionary review pursuant to Washington Rule of Appellate Procedure 2.3(b). Id. at 4.

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Plush raised five issues: (1) motion of judge bias; (2) motion to dismiss for having only

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10 days to prepare for trial; (3) motion to dismiss for lack of cause to arrest; (4) motion to

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dismiss for violation of right to speedy trial; and (5) motion to dismiss for ineffective

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ORDER - 1

Case 3:20-cv-05258-BHS Document 44 Filed 09/17/21 Page 2 of 5

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assistance of counsel. Id. The Washington Court of Appeals denied review, and Plush did

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not seek review by the Washington Supreme Court. Id.

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Plush then filed a direct appeal from the judgment and sentence, asserting four

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issues: (1) the superior court erred by allowing the prosecution to amend the information

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to change the dates of the crime; (2) the amendment prejudiced the defense by placing the

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defendant in the position of having to choose between the right to a speedy trial and the

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right to prepare for trial (“Hobson’s choice”); (3) the prosecution committed misconduct

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during closing argument; and (4) the judge erred by relying on unproven criminal history

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in sentencing Plush. Id. at 5. The Washington Court of Appeals affirmed the conviction

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but remanded for resentencing due to an error in the criminal history calculation. Id.
Plush then filed a pro se brief, which state courts construe as a petition for review

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before the Washington Supreme Court. Id. Plush’s pro se brief raised eleven issues: (1)

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Hobson’s choice; (2) denial of right to call witnesses; (3) denied right to present

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evidence; (4) illegally withholding evidence; (5) new or different element of amended

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charge required dismissal; (6) illegal jury instructions; (7) whether petitioner knowingly

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failed to register; (8) false arrest warrant; (9) entrapment; (10) speedy trial violation; and

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(11) vindictive, selective, and malicious prosecution. Id. The Washington Supreme Court

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denied review. Id.

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In 2018, the state superior court resentenced Plush on remand. Id. Plush appealed

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the new judgment and sentence. Id. On February 2, 2021, the Washington Supreme Court

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declined to consider his claims challenging the underlying conviction but remanded the

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Case 3:20-cv-05258-BHS Document 44 Filed 09/17/21 Page 3 of 5

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sentence for the trial judge to strike a provision concerning accrual of interest and to

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address whether Plush should pay a DNA collection fee and supervision fee. Id. at 5–6.

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On March 16, 2020, Plush initiated this case. Dkts. 1, 11. The Court ordered Plush

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to file an amended petition, Dkt. 25, and Plush filed his amended petition on May 3,

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2021, Dkt. 32. Plush’s petition challenges the constitutionality of the state statute which

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required him to register as a sex offender and raises twelve distinct issues: (1) Hobson’s

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choice of choosing one right over another; (2) denial of right to call witnesses; (3) denial

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of right to present evidence; (4) illegally withholding evidence; (5) unlawful amendment

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of the charges; (6) illegal jury instructions; (7) that he did not “knowingly” fail to

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register; (8) knowingly filing a false arrest warrant; (9) entrapment; (10) speedy trial

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violation; (11) vindictive and selective prosecution; and (12) that the failure to register

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statute is unconstitutional. Dkt. 32 at 8–10, 26–47.

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On July 20, 2021, Judge Christel issued the instant R&R, recommending that the

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Court dismiss Plush’s petition without prejudice for failure to exhaust. Dkt. 41 at 8–10.

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The R&R concluded that Plush failed to present the exact federal law issues raised in his

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current habeas petition before the Washington Court of Appeals. Id. The R&R also

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concluded that Plush has an available state remedy as there is a one-year statute of

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limitations on the filing of a personal restraint petition or other post-conviction challenge.

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Id. at 10–11. The Washington Court of Appeals issued an opinion on Plush’s challenge to

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his resentencing on February 21, 2021, and the R&R concluded that the time to file a

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collateral attack has not yet run. Id. Finally, the R&R recommended that the Court deny

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Case 3:20-cv-05258-BHS Document 44 Filed 09/17/21 Page 4 of 5

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Plush’s remaining pending motions (a motion to receive electronic copies, Dkt. 38, and a

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motion to schedule hearing dates, Dkt. 39) as moot. Dkt. 41 at 12–13.
On August 3, 2021, Plush objected to the R&R’s conclusion that he has failed to

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exhaust his state court remedies. Dkt. 43.
The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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Plush argues that he has exhausted his remedies and that his apparent failure to

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raise his federal claims was due to a lack of access to legal literature while in prison. Dkt.

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43 at 2. But this objection does not alter the Court’s analysis on exhaustion. A failure to

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raise the twelve issues present in Plush’s habeas petition at each distinct level of direct

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review in state court precludes the Court here from considering his petition. See Ortberg

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v. Moody, 961 F.2d 135, 138 (9th Cir. 1992); Casey v. Moore, 386 F.3d 896, 915–916

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(9th Cir. 2004) (“As a general rule, a petitioner satisfies the exhaustion requirement by

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fairly presenting the federal claim to the appropriate state courts (plural) in the manner

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required by the state courts, thereby ‘afford[ing] the state courts a meaningful opportunity

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to consider allegations of legal error.’” (quoting Vasquez v. Hillery, 474 U.S. 254, 257

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(1999)). The Court thus agrees with the R&R that Plush has failed to exhaust his state

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remedies and that his petition should be dismissed without prejudice.

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Case 3:20-cv-05258-BHS Document 44 Filed 09/17/21 Page 5 of 5

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The Court having considered the R&R, Petitioner’s objections, and the remaining
record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Plush’s Petition, Dkts. 1, 32, is DISMISSED without prejudice. All other

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motions, Dkts. 38, 39, are DENIED as moot;

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(3)

Certificate of Appealability is DENIED; and

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(4)

The Clerk shall enter a JUDGMENT and close the case.

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Dated this 17th day of September, 2021.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 5