Ennis v. Uttecht

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA SHAWN ENNIS, CASE NO. 3:19-CV-5786-BHS-DWC 11 Petitioner, ORDER 12 v. JEFFREY UTTECHT, 14 Respondent.

16 The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge David W. Christel. On August 26, 2019, Petitioner initiated this action challenging his state court convictions and sentence. See Dkts. 1, 10. Respondent filed his Answer on February 11, 2020. Dkt. 14. The Court has reviewed the Petition, Respondent’s Answer, and the state court record. See Dkts. 10, 14, 15.

21 In the Answer filed on February 11, 2020, Respondent argues the Petition should be dismissed as unexhausted without prejudice because state remedies remain available. Dkt. 14.

23 Respondent argues Petitioner has not yet filed a petition for collateral relief, and Petitioner had until March 25, 2020 to do so. Dkt. 14 at 2.

1 Since the filing of the Answer and as of the date of this order, the time to file a petition or motion for post-conviction relief has passed. 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 before March 25, 2020, or if he has now 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.”).

10 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 Petitioner’s claims are now procedurally defaulted. Respondent’s supplemental answer must be filed on or before May 1, 2020. Petitioner’s supplemental response, if any, is due May 8, 2020.

14 The Clerk is ordered to re-note the Petition for consideration on May 8, 2020.

15 Dated this 9th day of April, 2020.

A David W. Christel 18 United States Magistrate Judge