Adams v. Jackson

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA — 6 — ROBERT LEE ADAMS, Case No. 2:22-cv-831-RAJ-TLF 7 Petitioner, v. ORDER TO SHOW CAUSE — 8 — ROBERT JACKSON, — 9 — Respondent. — 10 — 11 This case has been referred to Magistrate Judge Theresa L. Fricke pursuant to — 12 — 28 U.S.C. § 636 (b)(1) and Local Rule MJR 3 and 4. This matter comes before the Court 13 on petitioner’s filing of an application to proceed in forma pauperis. Dkt. 1, 4, 7. 14 Petitioner is proceeding pro se, and the petition has not been served on respondent. 15 Under Rule 4 of the rules governing § 2254 cases, the Court must promptly 16 examine a habeas corpus petition when it is filed, and if it plainly appears from the 17 petition and its attachments the petitioner is not entitled to relief, the Court must dismiss 18 the petition. It appears that the petition – on its face – is subject to dismissal. The Court 19 will provide petitioner the opportunity, by September 9, 2022, to show cause why the 20 Court should not deny petitioner’s motion to proceed in forma pauperis. 21 FACTUAL BACKGROUND 22 The petition contends that petitioner is a convicted prisoner challenging the 23 duration of his incarceration. Dkt. 1-1. Petitioner contends he pled guilty in the — 24 — 1 underlying criminal trial pursuant to a plea agreement. Dkt. 1-1 at 1-2. Petitioner 2 indicates that he did not appeal this action to the Washington Supreme Court and has 3 not filed a petition for certiorari in the United States Supreme Court. Dkt. 1-1 at 2-3. 4 Instead, petitioner states that he sent a letter to a Judge Pro Tempore for the King 5 County Superior Court alleging that he was being held beyond the completion of his 6 sentence. Dkt. 1-1 at 3-7. 7 DISCUSSION 8 A prisoner may only use habeas corpus “when they seek to invalidate the 9 duration of their confinement – either directly through an injunction compelling speedier 10 release or indirectly through a judicial determination that necessarily implies the 11 unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) 12 (emphasis in original). Additionally, when a prisoner seeks to challenge the very fact or 13 duration of their physical imprisonment, and seeks immediate or speedier release, their 14 sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 , 500 15 (1973). 16 A. IFP Status 17 The district court may permit indigent litigants to proceed in forma pauperis upon 18 completion of a proper affidavit of indigency. 28 U.S.C. § 1915 (a). Yet IFP status is a 19 privilege not a right, and the district court has discretion to deny such status. O’Loughlin 20 v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th 21 Cir. 1984). The privilege of proceeding with a cause of action IFP should be permitted 22 “only in exceptional circumstances.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th — 23 — — 24 — 1 Cir. 1986). The Court has broad discretion in denying an application to proceed in forma 2 pauperis. Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963). 3 By requesting the court to proceed in forma pauperis, petitioner is asking the 4 government to incur the filing fee because he allegedly is unable to afford the costs 5 necessary to proceed with his cause of action. Petitioner’s IFP application indicates that 6 he works at the facility in which he is housed and makes $40 per month. Dkt. 7. 7 Petitioner’s prison trust account statement shows a current balance of $513.46 and an 8 average spendable balance of $162.62. Dkt. 6, 7. Given that the filing fee for a habeas 9 corpus petition is $5.00, petitioner has sufficient funds in his prison trust account to pay 10 that fee. 11 B. Failure to Exhaust State Court Remedies 12 A state prisoner is required to exhaust all state court remedies, by fairly presenting 13 claims of violation of federal rights before the state courts, before seeking a writ of federal 14 habeas corpus. 28 U.S.C. § 2254 (b)(1). The exhaustion requirement is a matter of comity, 15 intended to afford the state courts the “initial opportunity to pass upon and correct alleged 16 violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) 17 (emphasis added). This is appropriate, because “state courts, like federal courts, are 18 obliged to enforce federal law.” O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). To 19 properly exhaust federal claims, a would-be federal habeas corpus petitioner must finish 20 “one complete round of the State’s established appellate review process,” up to the 21 highest state court with powers of discretionary review. Id., at 845 . 22 A federal court must dismiss a federal habeas corpus petition if its claims are 23 unexhausted. Coleman v. Thompson, 501 U.S. 722, 731 (1991). This Court has the sua — 24 — 1 sponte authority to examine the question of exhaustion at this stage of review. Campbell 2 v. Crist, 647 F.2d 956, 957 (9th Cir. 1981) (“This court may consider whether state 3 remedies have been exhausted even if the state does not raise the issue”). 4 The petition in this action indicates that petitioner has not appealed the conviction 5 and sentence that he is attempting to challenge. Petitioner states that instead he has 6 sent a letter to the presiding judge and prosecuting office raising concerns regarding his 7 sentence. Petitioner must raise to the Washington Court of Appeals and Washington 8 Supreme Court the same federal constitutional grounds for relief that he seeks to raise 9 in his federal habeas corpus petition in order for the petition to be eligible for review in 10 federal court. 11 CONCLUSION 12 Based on the foregoing, it appears that petitioner has failed to exhaust state 13 remedies, and that he is able to afford the $5.00 filing fee. Petitioner is directed to show 14 cause in writing why petitioner’s motion to proceed in forma pauperis should not be 15 denied, and why his petition should not be dismissed for failure to exhaust state 16 remedies. 17 Or, with respect to exhaustion of state remedies, petitioner may (assuming he 18 pays the filing fee, or shows cause why he should not be required to pay it) file an 19 amended habeas corpus petition correcting – if possible – the deficiency in exhaustion 20 of state remedies. — 21 — — 22 — — 23 — — 24 — 1 Petitioner must file an amended petition or show cause by September 9, 2022. 2 Dated this 17th day of August, 2022. — 3 — — 4 — a — 5 — Theresa L. Fricke 6 United States Magistrate Judge — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —