Cecil L. Morton v. Karin Arnold

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 CECIL L. MORTON, Case No. 3:25-cv-05818-BHS-TLF 7 Petitioner, v. REPORT AND 8 RECOMMENDATION KARIN ARNOLD, 9 Noted for October 29, 2025 Respondent. — 10 — 11 Petitioner Cecil L. Morton is a state prisoner who is confined at the Stafford 12 Creek Corrections Center in Aberdeen, Washington. Dkt. 1-2. Petitioner has filed a 13 motion to proceed in forma pauperis (“IFP”) (Dkt. 1) along with a proposed petition for 14 writ of habeas corpus under 28 U.S.C. § 2241 (Dkt. 1-2), request for certificate of 15 appealability (Dkt. 1-5), proposed motion seeking leave to argue for certificate (Dkts. 3) 16 and motion requesting judicial notice (Dkts. 1-4). In his proposed § 2241 habeas corpus 17 petition, petitioner contends (1) his Fourteenth Amendment rights were violated 18 because the Pierce County Superior Court imposed a judgment and sentence without 19 subject matter jurisdiction; and (2) the Pierce County Superior Court violated his First 20 Amendment right to access the court by refusing to file his CrR 7.4 motion to arrest 21 judgment in 2025. Dkt. 1-2. 22 Petitioner has filed other federal habeas petitions relating to the same judgment. 23 Under Rule 4 and Rule 1(b) of the Rules Governing § 2254 and § 2241 cases, 24 the Court must review a habeas petition and should dismiss the petition if it “plainly 1 appears from the petition and any attached exhibits that the petitioner is not entitled to 2 relief in the district court[.]” 3 After reviewing the petition filed in this matter and petitioner’s prior petitions, the 4 undersigned recommends that the Court dismiss the petition without prejudice for lack 5 of jurisdiction. A certificate of appealability should be denied. The motion to proceed IFP 6 (Dkt. 1), request for certificate of appealability (Dkt. 1-5), proposed motion seeking leave 7 to argue for certificate (Dkts. 3) and motion requesting judicial notice (Dkts. 1-4) should 8 be denied as moot. 9 DISCUSSION 10 This federal habeas petition was filed on September 12, 2025. Dkt. 1-2, proposed 11 habeas corpus petition. The petition relates to the judgment and sentence entered 12 under Pierce County Superior Court case number 94-1-00829-5. Id. at 1. In that case, 13 petitioner was convicted, after a jury trial, of first-degree robbery, first-degree burglary, 14 and three counts of first-degree rape with a deadly weapon. Dkt. 1-2; State of 15 Washington v. Morton, et al., Superior Court of Pierce County Cause No: 94–1–00829– 16 5 (judgment entered September 21, 1994); State v. Morton, 89 Wash. App. 1054 (1998) 17 (denial of direct appeal on same conviction). 18 In the federal habeas corpus petition, petitioner alleges in Ground One that his 19 Fourteenth Amendment rights were violated because the Pierce County Superior Court 20 imposed a judgment and sentence without subject matter jurisdiction. Dkt. 1-2. He 21 appears to argue that no probable cause determination was made within 48 hours after 22 his arrest and no complaint was filed, and that therefore the Pierce County Superior 23 Court lacked subject matter jurisdiction to impose a judgment and sentence in his case. — 24 — 1 Dkts. 1-3. In Ground Two, petitioner alleges the Pierce County Superior Court violated 2 his First Amendment right to access the court by refusing to file his CrR 7.4 motion to 3 arrest judgment in 2025. Dkts. 1-2, 1-4. 4 The habeas corpus statute “28 U.S.C. § 2254 is the exclusive vehicle for a 5 habeas petition by a state prisoner in custody pursuant to a state court judgment.” White 6 v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004), overruled on other grounds by 7 Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). Therefore, this petition is 8 properly construed as brought pursuant to § 2254. 9 A review of this Court’s records reveals that petitioner filed a prior habeas petition 10 in 2017 related to this same judgment and sentence which was dismissed as time 11 barred. Morton v. Gilbert, No. 3-17-cv-05536-RJB-DWC, 2017 WL 5899551 , at *1 (W.D. 12 Wash. Oct. 26, 2017), report and recommendation adopted, 2017 WL 5756883 (W.D. 13 Wash. Nov. 28, 2017). Petitioner’s appeals to the Ninth Circuit and United States 14 Supreme Court were denied. Morton v. Gilbert, No. 18-35027, 2018 WL 1779051 , at *1 15 (9th Cir. Mar. 12, 2018) (denying certificate of appealability); Morton v. Haynes, 139 S. 16 Ct. 432 (2018) (denying petition for writ of certiorari). Petitioner filed another § 2254 17 petition challenging the same judgment and sentence in 2024; the Court held this was a 18 successive petition under 28 U.S.C. § 2244 and the case was dismissed for lack of 19 jurisdiction. See Morton v. Bennett, No. 24-cv-5150-TMC-DWC, 2024 WL 1941089 , at 20 *1 (W.D. Wash. Mar. 1, 2024), report and recommendation adopted, 2024 WL 1931808 21 (W.D. Wash. May 2, 2024). — 22 — 28 U.S.C. § 2244 provides, in relevant part: 23 (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person — 24 — 1 pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the 2 United States on a prior application for a writ of habeas corpus, except as provided in section 2255. — 3 — (b)(1) A claim presented in a second or successive habeas corpus 4 application under section 2254 that was presented in a prior application shall be dismissed. 5 (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior 6 application shall be dismissed unless-- (A) the applicant shows that the claim relies on a new rule of constitutional 7 law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 8 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 9 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and 10 convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 11 (3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate 12 court of appeals for an order authorizing the district court to consider the application. 13 (B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined 14 by a three-judge panel of the court of appeals. (C) The court of appeals may authorize the filing of a second or 15 successive application only if it determines that the application makes prima facie showing that the application satisfies the requirements of this 16 subsection. — 17 — 28 U.S.C. § 2244 (emphasis added). 18 Here, petitioner filed a prior § 2254 federal habeas petition challenging the same 19 judgment at issue here which was dismissed with prejudice. See Morton v. Gilbert, No. 20 3-17-cv-05536-RJB-DWC, 2017 WL 5899551 , at *1 (W.D. Wash. Oct. 26, 2017), report 21 and recommendation adopted, 2017 WL 5756883 (W.D. Wash. Nov. 28, 2017); 28 22 U.S.C. § 2244 (a). — 23 — — 24 — 1 “A disposition is ‘on the merits’ if the district court either considers and rejects the 2 claims or determines that the underlying claim will not be considered by a federal court.” 3 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). “The dismissal of a habeas 4 petition as untimely constitutes a disposition on the merits and … a further petition 5 challenging the same conviction would be ‘second or successive; for purposes of 28 6 U.S.C. § 2244 (b).” Id. “‘Generally, a new petition is ‘second or successive’ if it raises 7 claims that were or could have been adjudicated on their merits in an earlier petition.’” 8 Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (quoting Cooper v. Calderon, 274 9 F.3d 1270, 1273 (9th Cir. 2001)). For instance, “second-in-time habeas petitions 10 challenging new or intervening judgments are not second or successive.” Clayton v. 11 Biter, 868 F.3d 840, 843 (9th Cir. 2017). 12 With respect to Ground One, the claim petitioner raises in the instant petition 13 could have been adjudicated on the merits in his first habeas petition. Furthermore, 14 Ground Two -- alleging the Pierce County Superior Court violated petitioner’s First 15 Amendment right to access the court by refusing to file his CrR 7.4 motion to arrest 16 judgment in 2025 – is outside the scope of federal habeas review. The only claims 17 reviewable in a habeas petition are those “attacking the validity of the fact or length of [a 18 petitioner’s] confinement.” Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). Petitioner’s 19 First Amendment claim does not attack the fact or duration of his confinement, and 20 therefore it is not a proper claim for habeas relief.1 Thus, nothing in Ground Two alters — 21 — 22 1 If petitioner intends to pursue a claim for damages or other forms of relief based on the alleged violation of his First Amendment rights, he must do so in a separate action filed pursuant to 42 23 U.S.C. § 1983 . The Court also notes that generally “a petition alleging errors in the state postconviction review process is not addressable through habeas corpus proceedings.” Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). — 24 — 1 the status of the habeas petition as second or successive. The Court should therefore 2 find the petition is a second or successive petition under 28 U.S.C. § 2244 (b). See 28 3 U.S.C. § 2244 (a). 4 This Court has no jurisdiction to consider a successive petition unless the Ninth 5 Circuit has authorized its filing. See 28 U.S.C. § 2244 (b)(3)(A); see Burton v. Stewart, — 6 — 549 U.S. 147, 157 (2007) (finding that the district court lacked jurisdiction to consider 7 the merits of a second or successive petition absent prior authorization from the circuit 8 court). Petitioner provides no evidence that the Ninth Circuit has authorized the filing of 9 the instant petition. Accordingly, the Court should DISMISS the petition without 10 prejudice for lack of jurisdiction. 11 Petitioner’s motion to proceed in forma pauperis (Dkt. 1), proposed motions 12 seeking leave for certificate (Dkts. 1-4, 3), and requests for judicial notice (Dkt. 1-5, 5) 13 should be DENIED as moot. 14 CERTIFICATION OF APPEALABILITY 15 A petitioner seeking post-conviction relief under § 2254 may appeal a district 16 court’s dismissal of his federal habeas petition only after obtaining a certificate of 17 appealability from a district or circuit judge. A certificate of appealability may issue only 18 where a petitioner has made “a substantial showing of the denial of a constitutional 19 right.” See 28 U.S.C. § 2253 (c)(2). A petitioner may satisfy this standard “by 20 demonstrating that jurists of reason could disagree with the district court’s resolution of 21 his constitutional claims or that jurists could conclude the issues presented are 22 adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 23 — 24 — 1 322, 327 (2003). Under this standard, the Court should find that petitioner is not entitled 2 to a certificate of appealability here, as jurists of reason could not disagree, and the 3 issues are not adequate to deserve this Court’s encouragement. 4 CONCLUSION 5 For those reasons, the undersigned recommends that the Court DISMISS the 6 petition for writ of habeas corpus without prejudice for lack of jurisdiction. Petitioner’s 7 motion to proceed in forma pauperis (“IFP”) (Dkt. 1), request for certificate of 8 appealability (Dkt. 1-5), proposed motion seeking leave to argue for certificate (Dkts. 3) 9 and motion requesting judicial notice (Dkts. 1-4) should be denied as moot. A proposed 10 order and proposed judgment are attached. 11 Pursuant to 28 U.S.C. § 636 (b)(1) and Fed. R. Civ. P. 72(b), the parties shall 12 have 14 days from service of this report to file written objections. See also Fed. R. Civ. 13 P. 6 . Failure to file objections will result in a waiver of those objections for purposes of 14 de novo review by the district judge, see 28 U.S.C. § 636 (b)(1)(C), and can result in a 15 waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 , 16 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). 17 Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is directed to 18 set the matter for consideration on October 29, 2025, as noted in the caption. — 19 — Dated this 14th day of October, 2025. — 20 — — 21 — 22 A 23 Theresa L. Fricke United States Magistrate Judge — 24 —