Perez v. State of Washington

[4] 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [6] 7 STEPHEN C. PEREZ, NO: 4:19-CV-5260-TOR 8 Petitioner, ORDER SUMMARILY DISMISSING 9 v. HABEAS PETITION 10 STATE OF WASHINGTON, 11 Respondent. [12] 13 Petitioner, a prisoner at the Coyote Ridge Corrections Center, brings this pro 14 se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 15 U.S.C. § 2254 . The $5.00 filing fee has been paid. 16 PROPER RESPONDENT 17 An initial defect with the Petition is that it fails to name a proper party as a 18 respondent. The proper respondent in a federal petition seeking habeas corpus relief 19 is the person having custody of the petitioner. Rumsfeld v. Padilla, 542 U.S. 426 20 (2004); Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). If the 1 petitioner is incarcerated, the proper respondent is generally the warden of the 2 institution where the petitioner is incarcerated. See Ortiz-Sandoval v. Gomez, 81 F.3d 3 891 (9th Cir. 1996). Failure to name a proper respondent deprives federal courts of 4 personal jurisdiction. See Stanley, 21 F.3d at 360 . 5 EXHAUSTION REQUIREMENT 6 Petitioner challenges his 2019 Benton County jury conviction for attempted 7 rape second degree and communication with a minor. He was sentenced to 84 8 months incarceration. Petitioner indicates that his direct appeal to the Washington 9 State Court of Appeals, Division III, is still pending. ECF No. 1 at 2. 10 In his grounds for relief, Petitioner argues that the State of Washington has no 11 jurisdiction to decide federal constitutional matters. ECF No. 1 at 5-12. It has long 12 been settled that state courts are competent to decide questions arising under the U.S. 13 Constitution. See Baker v. Grice, 169 U.S. 284, 291 (1898) (“It is the duty of the 14 state court, as much as it is that of the federal courts, when the question of the validity 15 of a state statute is necessarily involved, as being in alleged violation of any 16 provision of the federal constitution, to decide that question, and to hold the law void 17 if it violate that instrument.”); see also Worldwide Church of God v. McNair, 805 18 F.2d 888, 891 (9th Cir. 1986) (holding that state courts are as competent as federal 19 courts to decide federal constitutional matters). Therefore, Petitioner’s arguments 20 to the contrary lack merit. 1 Additionally, before a federal court may grant habeas relief to a state prisoner, 2 the prisoner must exhaust the state court remedies available to him. 28 U.S.C. 3 § 2254(b); Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion generally requires that 4 a prisoner give the state courts an opportunity to act on his claims before he presents 5 those claims to a federal court. O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A 6 petitioner has not exhausted a claim for relief so long as the petitioner has a right 7 under state law to raise the claim by available procedure. See Id.; 28 U.S.C. 8 § 2254(c). 9 To meet the exhaustion requirement, the petitioner must have “fairly 10 present[ed] his claim in each appropriate state court (including a state supreme court 11 with powers of discretionary review), thereby alerting that court to the federal nature 12 of the claim.” Baldwin, 541 U.S. at 29 ; see also Duncan v. Henry, 513 U.S. 364 , 13 365–66 (1995). A petitioner fairly presents a claim to the state court by describing 14 the factual or legal bases for that claim and by alerting the state court “to the fact 15 that the ... [petitioner is] asserting claims under the United States Constitution.” 16 Duncan, 513 U.S. at 365–366; see also Tamalini v. Stewart, 249 F.3d 895, 898 (9th 17 Cir. 2001) (same). Mere similarity between a claim raised in state court and a claim 18 in a federal habeas petition is insufficient. Duncan, 513 U.S. at 365–366. 19 Furthermore, to fairly present a claim, the petitioner “must give the state 20 courts one full opportunity to resolve any constitutional issues by invoking one 1 complete round of the State’s established appellate review process.” O’Sullivan, [2] 526 U.S. at 845 . Once a federal claim has been fairly presented to the state courts, 3 the exhaustion requirement is satisfied. See Picard v. Connor, 404 U.S. 270 , 275 4 (1971). It does not appear from the face of the Petition or the attached documents 5 that Petitioner has exhausted his state court remedies as to each of his grounds for 6 relief. Indeed, Petitioner affirmatively represents that he did not exhaust his state 7 court remedies. 8 GROUNDS FOR FEDERAL HABEAS RELIEF 9 Petitioner asserts that the Washington state constitution contradicts the federal 10 constitution regarding the Fifth Amendment right to “presentment or indictment of 11 a Grand Jury.” He claims “no bill of indictment” was brought against him rendering 12 his arrest, conviction and imprisonment illegal. 13 Petitioner seems to argue that because the state courts have defied “federally 14 established procedures and processes for the adjudication of crimes” only “a court 15 of federal jurisdiction” has jurisdictional authority over his claims. His bald 16 assertion that “due process of the law was ignored” is unsupported by his factual 17 allegations. 18 The United States Supreme Court stated long ago: “Prosecution by 19 information instead of by indictment is provided for by the laws of Washington. 20 This is not a violation of the Federal Constitution.” See Gaines v. State of Washington, 277 U.S. 81, 86 (1928). There is no federal constitutional violation 2 || when a prosecuting attorney’s criminal information is substituted for the grand jury’s 3|| indictment. See Hurtado v. California, 110 U.S. 516 (1884) (rejecting the claim that 4|| an indictment is essential to due process of law and that a state violates the 5|| Fourteenth Amendment by prosecuting a defendant with a criminal information). 6|| Consequently, Petitioner’s assertions to the contrary presented in his four grounds for federal habeas relief are legally frivolous. 8 Because it plainly appears from the petition and the attached exhibits that Petitioner is not entitled to relief in this Court, IT IS ORDERED the petition, ECF No. 1, is DISMISSED pursuant to Rule 4, Rules Governing Section 2254 Cases in 11 |] the United States District Courts. 12 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, provide copies to Petitioner, and close the file. The Court certifies that pursuant to 28 U.S.C. § 1915 (a)(3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253 (c); Fed. R. App. P. 22(b). A certificate of 17|| appealability is therefore DENIED. 18 DATED December 10, 2019. 19 CO OK; 20 a Ts U5 feiniay RICE > Chief United States District Judge