Collier v. Andrewjeski

— 1 — — 2 — — 3 — — 4 — — 5 — UNITED STATES DISTRICT COURT — 6 — WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 7 — 8 MICHAEL JOSEPH COLLIER, JR., 9 Petitioner, Case No. C23-568-JNW-MLP 10 v. ORDER 11 MELISSA ANDREWJESKI, 12 Respondent. — 13 — 14 This is a federal habeas action brought under 28 U.S.C. § 2254 . Petitioner Michael 15 Joseph Collier, Jr., proceeding pro se, is currently incarcerated at the Coyote Ridge Corrections 16 Center in Connell, Washington. The Court directed service of Petitioner’s federal habeas 17 petition, and Respondent recently filed an answer together with relevant portions of the state 18 court record. (Dkt. ## 20-21, 28-29.) Respondent’s answer is noted on the Court’s calendar for 19 consideration on July 14, 2023. (See dkt. # 28.) 20 Currently before the Court are Petitioner’s: (1) Motion “for Early Release” (dkt. # 24); 21 and (2) Motion “for Expansion of the Record” (dkt. # 25). Petitioner’s Motions seek early release 22 from custody and leave to supplement the pending habeas petition with an additional exhibit. 23 (Dkt. # 24 at 1; Dkt. # 25 at 1.) The additional exhibit is comprised of a May 31, 2023, Order of 1 the Washington Court of Appeals dismissing a recently filed personal restraint petition, and 2 Petitioner’s request for the Washington Supreme Court’s review of that Order. (Dkt. # 25 at 1.) 3 Respondent filed a response to Petitioner’s Motion for Early Release, but did not respond to 4 Petitioner’s Motion for Expansion of the Record. (Dkt. # 27.) Petitioner did not file a reply to 5 either of his motions. 6 Petitioner’s Motion for Early Release argues that the Washington State Indeterminate 7 Sentence Review Board (“ISRB”) has found him to be conditionally releasable as a low-risk 8 offender, and therefore, he should be immediately released from custody. (See dkt. # 24.) 9 Respondent argues that Petitioner fails to establish “special circumstances” or a “high probability 10 of success” on the merits of his federal habeas petition for his requested relief. (Dkt. # 27 at 2 11 (citing United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016).) Primarily, Respondent 12 notes Petitioner’s grounds for relief raised in his habeas petition are barred by the statute of 13 limitations pursuant to 28 U.S.C. § 2244 (d), and that Petitioner is otherwise attempting to 14 improperly raise a new claim not addressed in his habeas petition against the ISRB. (Id.; see also 15 dkt. # 28.) 16 The Ninth Circuit “ha[s] not yet decided whether district courts have the authority to 17 grant bail pending resolution of a habeas petition.” McCandless, 841 F.3d at 822 (citation and 18 internal quotations omitted). “If district courts have that authority, [the Ninth Circuit] ha[s] 19 indicated that it is reserved for ‘extraordinary cases involving special circumstances or a high 20 probability of success.’” Id. (quoting Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989)); see also 21 Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 2954719 , at *21 (W.D. Wash. Mar. 14, 2017), 22 report and recommendation adopted, 2017 WL 1101370 (W.D. Wash. Mar. 24, 2017). — 23 — 1 Here, the Court agrees that Petitioner fails to establish any “special circumstances” or a 2 “high probability of success” on the merits of his federal habeas petition justifying his immediate 3 release. As noted by Respondent, there remain outstanding issues with regard to the timeliness of 4 the claims raised in Petitioner’s habeas petition that will be addressed once Petitioner’s petition 5 becomes ripe for this Court’s consideration. Furthermore, Petitioner’s claim that the ISRB has 6 previously found him to be conditionally releasable is independent of the constitutional and 7 jurisdictional challenges raised in his habeas petition regarding the indeterminate sentence 8 imposed for his 2013 guilty plea to two counts of Child Molestation in the First Degree, RCW 9 9A.44.083. (See dkt. # 20.) Accordingly, Petitioner’s Motion for Early Release (dkt. # 24) is 10 DENIED. 11 As to Petitioner’s Motion for Expansion of the Record, based on Petitioner’s request and 12 Respondent’s lack of opposition, Petitioner’s Motion for Expansion of the Record (dkt. # 25) is 13 GRANTED. Petitioner’s supplemental exhibit will be considered with those previously 14 submitted with his habeas petition. 15 The Clerk is directed to send a copy of this Order to the parties and to the Honorable 16 Jamal N. Whitehead. 17 Dated this 29th day of June, 2023. — 18 — A 19 MICHELLE L. PETERSON United States Magistrate Judge — 20 — — 21 — — 22 — — 23 —