McDaniel v. Bennett

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 DENNIS MCDANIEL, CASE NO. 3:22-CV-5753-BHS-DWC 11 Petitioner, ORDER FOR SUPPLEMENTAL 12 v. BRIEFING 13 JASON BENNETT, 14 Respondent. [15] 16 The District Court has referred this action to Chief United States Magistrate Judge David 17 W. Christel. On October 6, 2022, Petitioner Dennis McDaniel filed his federal habeas Petition 18 (“Petition”), pursuant to 28 U.S.C. § 2254 , seeking relief from his state court conviction. See 19 Dkts. 1, 5. In his Petition, Petitioner raises three grounds for relief. Id. Respondent filed an 20 Answer arguing that all three grounds in the Petition are unexhausted and procedurally barred. 21 Dkt. 10. 22 The Court has reviewed the relevant record and finds the record indicates Petitioner may 23 still have had available state remedies at the time he filed his federal habeas petition. “The 24 appropriate time to assess whether a prisoner has exhausted his state remedies is when the 1 federal habeas petition is filed, not when it comes on for a hearing in the district court or court of 2 appeals.” Brown v. Maass, 11 F.3d 914, 915 (9th Cir. 1993). If there is a state remedy available, 3 Petitioner will need to return to the state level to exhaust his claims. See Johnson v. Lewis, 929 4 F.2d 460 , 464 (9th Cir. 1991). 5 Here, it appears Petitioner had available state remedies when he filed his federal Petition. 6 See Dkt. 1; Dkt. 5. Washington State imposes a one-year statute of limitations on the filing of a 7 personal restraint petition or other post-conviction challenge. RCW § 10.73.090. In this case, 8 Petitioner was resentenced on October 18, 2021, pursuant to State v. Blake, 481 P.3d 521 (Wa. 2021). See Dkt. 11-1, Ex. 2. Petitioner did not file a direct appeal, thus, his judgment became [9] final for purposes of state law on October 18, 2021, the date it was filed with the clerk of the trial [10] court. Dkt. 11-2. Ex, 2; RCW § 10.73.090(3)(a); see also Matter of Amos, 406 P.3d 707 , 713 [11] (Wash. App. Ct. 2017). Petitioner filed his federal Petition on October 6, 2022. Dkt. 1, 5. Thus, [12] on the date the Petition was filed, Petitioner had twelve days until the statute of limitations ran on [13] his state remedies. See RCW § 10.73.090(1), (2), (3)(a) (Petitioner has one year from the date the [14] judgment became final to file a petition or motion for post-conviction relief in state court.). [15] Therefore, it appears state remedies remained available for Petitioner at the time he filed his [16] Petition. [17] The parties did not address this issue in their briefing on the federal Petition. To ensure [18] the parties are provided with an adequate opportunity to brief the issue of whether Petitioner had [19] available state remedies at the time he filed his federal Petition, the Court orders the following: [20] - Respondent is directed to file, on or before April 12, 2023, a supplemental answer [21] addressing whether Petitioner had state remedies available to him at the time he filed [22] his federal habeas petition on October 6, 2022. The answer shall include information [23] on when Petitioner’s October 18, 2021 judgment and sentence became final for [24] 1 purposes of state law, and how Brown v. Maass should impact the Court’s analysis of 2 whether Petitioner had state remedies available to him when he filed his federal 3 Petition. 4 - Petitioner may file a supplemental response brief addressing the same on or before 5 May 3, 2023. 6 - The supplemental briefs are limited to ten pages and requests for over-length briefs 7 will not be considered by the Court. 8 The Clerk of Court is directed to re-note the Response to the Petition (Dkt. 10) for 9 consideration on May 3, 2023. 10 Dated this 24th day of March, 2023. [11] A [12] David W. Christel 13 Chief United States Magistrate Judge