DeLeon v. Uttecht ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOSHUA N. DELEON, CASE NO. 19-5424 RJB-JRC 11 Petitioner, ORDER ON REPORT AND 12 v. RECOMMENDATION 13 JEFFREY A. UTTECHT, 14 Respondent. 15 16 THIS MATTER comes before the Court on the Report and Recommendation of U.S. 17 Magistrate Judge J. Richard Creatura. Dkt. 14. The Court has considered the Report and 18 Recommendation, objections, and the remaining file. 19 In this 28 U.S.C. § 2254 habeas corpus petition, the Petitioner challenges a state court 20 conviction, by guilty plea, of rape of a child in the first degree, child molestation in the first 21 degree and second degree, and the resulting May 11, 2018 sentence. Dkt. 1. His direct appeal is 22 pending in the Washington Court of Appeals Div. II. Washington v. DeLeon, Washington Court 23 of Appeals Div. II case number 51934-8-II. On September 12, 2019, the Report and 24 1 Recommendation was filed, recommending that this petition be denied without prejudice for 2 failing to exhaust state court remedies on any of the claims. Dkt. 14. 3 “State prisoners seeking a writ of habeas corpus from a federal court must first exhaust 4 their remedies in state court. A petitioner has exhausted his federal claims when he has fully and 5 fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 6 2014)(citing 28 U.S.C. § 2254(b)(1)(A) and O'Sullivan v. Boerckel, 526 U.S. 838, 844–45, 119 7 S.Ct. 1728 (1999)). 8 The Report and Recommendation (Dkt. 14) should be adopted. The Petitioner has not 9 fully presented any of his claims to the state courts. His first direct appeal is pending. The 10 Petitioner has failed to exhaust his state court remedies as required by 28 U.S.C. § 11 2254(b)(1)(A). This federal habeas action is premature. 12 Under Rhines v. Weber, 544 U.S. 269, 276 (2005), a district court has discretion to stay a 13 petition with both exhausted and unexhausted claims to allow the petitioner time to present his 14 unexhausted claims to state courts. In the Ninth Circuit, a “district court has the discretion to 15 stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in 16 Rhines.” Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). A stay and abeyance under Rhines is 17 available when: (1) “the petitioner had good cause for his failure to exhaust,” (2) the petitioner’s 18 “unexhausted claims are potentially meritorious,” and (3) “there is no indication that the 19 petitioner engaged in intentionally dilatory litigation tactics.” Rhines, at 278. 20 Petitioner does not request a stay here. In his objections, the Petitioner maintains that the 21 state courts do not have jurisdiction to decide his claims. Dkt. 15. The Petitioner fails to cite any 22 authority that supports his position. His remaining assertions are without merit and do not 23 provide a basis to reject the Report and Recommendation. Further, there is no showing that a 24 1 stay, rather than dismissal, is appropriate. There is no showing that the petitioner had good cause 2 for his failure to exhaust. Rhines, at 278. This case was filed on May 13, 2019 - a year after the 3 Petitioner was sentenced. Further, it is unclear whether the “unexhausted claims are potentially 4 meritorious.” Rhines, at 278. While “there is no indication that the petitioner engaged in 5 intentionally dilatory litigation tactics” Rhines, at 278, there are no other grounds to stay the case 6 and hold it in abeyance rather than dismissing it without prejudice. 7 Further, a certificate of appealability should not issue. As stated in the Report and 8 Recommendation, reasonable jurists could not debate whether, or agree that, the petition should 9 have been resolved in a different manner; the issues raised are not adequate to deserve 10 encouragement to proceed further; and jurists of reason would not find it debatable whether the 11 court was correct in its rulings. Slack v. McDaniel, 529 U.S. 473, 484 (2000). A Certificate of 12 Appealability should be denied. 13 It is ORDERED that: 14 • The Report and Recommendation (Dkt. 14) IS ADOPTED; 15 • This case IS DISMISSED WITHOUT PREJUDICE; and 16 • The certificate of appealability IS DENIED. 17 The Clerk is directed to send uncertified copies of this Order to Judge Creatura, all 18 counsel of record, and to any party appearing pro se at said party’s last known address. 19 Dated this 21st day of October, 2019. A 20 21 ROBERT J. BRYAN 22 United States District Judge 23 24