Swarers v. State of Washington

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jan 12, 2021 — 3 — — 4 — SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON — 7 — — 8 — 9 THOMAS SWARERS, 4:20-CV-05247-SAB 10 Petitioner, 11 v. ORDER SUMMARILY 12 DISMISSING HABEAS 13 STATE OF WASHINGTON, PETITION 14 Respondent. — 15 — 16 Petitioner, a prisoner at the Coyote Ridge Corrections Center, brings this pro 17 se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 18 U.S.C. § 2254 . The $5.00 filing fee has been paid. 19 PROPER RESPONDENT 20 An initial defect with the Petition is that it fails to name a proper party as a 21 respondent. The proper respondent in a federal petition seeking habeas corpus 22 relief is the person having custody of the petitioner. Rumsfeld v. Padilla, 542 U.S. 23 426 (2004); Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). If the 24 petitioner is incarcerated, the proper respondent is generally the warden of the 25 institution where the petitioner is incarcerated. See Ortiz-Sandoval v. Gomez, 81 26 F.3d 891 (9th Cir. 1996). Failure to name a proper respondent deprives federal 27 courts of personal jurisdiction. See Stanley, 21 F.3d at 360 . While Petitioner could 28 conceivably remedy this issue, the Court finds the additional deficiencies discussed 1 below would make amendment futile. 2 EXHAUSTION REQUIREMENT 3 Petitioner challenges a 2018 Benton County jury conviction for an 4 unspecified charge. ECF No. 1 at 1-2. He does not provide the length of his 5 sentence and invites the Court to “see case file” that he fails to provide. Id.at 1. 6 Petitioner indicates he appealed his conviction and sentence to the Benton County 7 Superior Court on an unspecified date asserting ineffective assistance of counsel, 8 and his appeal was denied. Id. at 2. He also indicates the Washington State 9 Supreme Court denied review on April 29, 2020. Id. 10 Throughout the petition, Petitioner invites the Court to “see” his numbered 11 attachments, A-1 to A-25, Id. at 5-13. In his grounds for federal habeas relief, 12 Petitioner argues the State of Washington has no jurisdiction to decide federal 13 constitutional matters. Id. at 17-19. It has long been settled that state courts are 14 competent to decide questions arising under the U.S. Constitution. See Baker v. 15 Grice, 169 U.S. 284, 291 (1898) (“It is the duty of the state court, as much as it is 16 that of the federal courts, when the question of the validity of a state statute is 17 necessarily involved, as being in alleged violation of any provision of the federal 18 constitution, to decide that question, and to hold the law void if it violate that 19 instrument.”); see also Worldwide Church of God v. McNair, 805 F.2d 888 , 891 20 (9th Cir. 1986) (holding that state courts are as competent as federal courts to 21 decide federal constitutional matters). Therefore, Petitioner’s arguments to the 22 contrary lack merit. 23 Additionally, before a federal court may grant habeas relief to a state 24 prisoner, the prisoner must exhaust the state court remedies available to him. 28 25 U.S.C. § 2254 (b); Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion generally 26 requires that a prisoner give the state courts an opportunity to act on his claims 27 before he presents those claims to a federal court. O’Sullivan v. Boerckel, 526 U.S. 28 838 (1999). A petitioner has not exhausted a claim for relief so long as the 1 petitioner has a right under state law to raise the claim by available procedure. See 2 Id.; 28 U.S.C. § 2254 (c). 3 To meet the exhaustion requirement, the petitioner must have “fairly 4 present[ed] his claim in each appropriate state court (including a state supreme 5 court with powers of discretionary review), thereby alerting that court to the 6 federal nature of the claim.” Baldwin, 541 U.S. at 29 ; see also Duncan v. Henry, — 7 — 513 U.S. 364 , 365–66 (1995). A petitioner fairly presents a claim to the state court 8 by describing the factual or legal bases for that claim and by alerting the state court 9 “to the fact that the ... [petitioner is] asserting claims under the United States 10 Constitution.” Duncan, 513 U.S. at 365–366; see also Tamalini v. Stewart, 249 11 F.3d 895, 898 (9th Cir. 2001) (same). Mere similarity between a claim raised in 12 state court and a claim in a federal habeas petition is insufficient. Duncan, 513 13 U.S. at 365–366. 14 Furthermore, to fairly present a claim, the petitioner “must give the state 15 courts one full opportunity to resolve any constitutional issues by invoking one 16 complete round of the State's established appellate review process.” O’Sullivan, 17 526 U.S. at 845. Once a federal claim has been fairly presented to the state courts, 18 the exhaustion requirement is satisfied. See Picard v. Connor, 404 U.S. 270 , 275 19 (1971). It appears from the face of the Petition and supporting documents that 20 Petitioner has not exhausted his state court remedies as to each of his grounds for 21 relief. 22 GROUNDS FOR FEDERAL HABEAS RELIEF 23 Petitioner asserts that the Washington state constitution contradicts the 24 federal constitution regarding the Fifth Amendment right to “presentment or 25 indictment of a Grand Jury.” ECF No. 1 at 17. He claims “no bill of indictment” 26 was brought against him rendering his arrest, conviction and imprisonment illegal. — 27 — Id. 28 The United States Supreme Court stated long ago: “Prosecution by information instead of by indictment is provided for by the laws of Washington. This is not a violation of the Federal Constitution.” See Gaines v. Washington, 277 U.S. 81, 86 (1928). Consequently, Petitioner’s assertions to the contrary presented in his four grounds for federal habeas relief are legally frivolous. Because it plainly appears from the petition and accompanying documents that Petitioner is not entitled to relief in this Court, IT IS ORDERED the petition, ECF No. 1, is DISMISSED pursuant to Rule4, Rules Governing Section 2254 Cases in the United States District Courts. IT IS FURTHER ORDERED that all pending Motions are DENIED as moot. 1 IT ISSO ORDERED. The Clerk of Court is directed to enter this Order, 1 |) 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 13)| 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 appealability is therefore DENIED. l DATED this 12th day of January 2021. — 1 — — 1 — | — 2 — hl ctor Stanley A. Bastian United States District Judge — 23 — — 2 — — 2 — — 2 — — 2 — — 2 — ARNE CTINIAT ADE URICRATOCCINIT ITADTACDETIMTInn CO,