Mlady v. Smack

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA Adam Vincent Mlady, 9 CASE NO. 3:19-cv-05549-BHS-DWC Petitioner, 10 ORDER FOR SUPPLEMENTAL v. BRIEFING Al Smack, Respondent.

The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge David W. Christel. On June 11, 2019, Petitioner initiated this action challenging his state court convictions and sentence. See Dkt. 1. Respondent filed his Answer on July 26, 2019. Dkt. 11. The Court has reviewed the Petition, Respondent’s Answer, and the state court record. See Dkt. 6, 11, 12.

In the Answer, Respondent argues a state remedy remains available and the Petitioner should be dismissed without prejudice because Petitioner is not presently time-barred from seeking collateral review in the state courts. Dkt. 11. However, the time to file a petition or motion for post-conviction relief has passed since the filing of the Answer and expired on September 6, 2019. See RCW § 10.73.090 (no petition or motion for collateral attack may be filed more than one year after the judgment becomes final). Based on the record before the Court, it is not clear if Petitioner sought collateral review in state court, or if he has procedurally defaulted on all his claims. See Casey v. Moore, 386 F.3d 896, 920 (9th Cir. 2004); Eisermann v. Penarosa, 33 F.Supp.2d 1269, 1274 (D. Haw. 1999) (“[I]f a petitioner has never raised his federal claim to the highest state court available and is now barred from doing so by a state procedural rule, exhaustion is satisfied because no state remedy remains available, but the petitioner has procedurally defaulted on his claim.”).

7 Accordingly, the Court needs additional information to make a determination on the Petition. The Court orders Respondent to supplement his Answer and inform the Court whether a state remedy remains available to Petitioner. Respondent’s supplemental answer must be filed on or before September 30, 2019. Petitioner’s supplemental response, if any, is due October 7, 2019.

11 The Clerk is ordered to re-note the Petition for consideration on October 7, 2019.

12 Dated this 18th day of September, 2019.

A David W. Christel 15 United States Magistrate Judge