Liebich v. Uttecht

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 JEREMY D. LIEBICH, CASE NO. 3:20-cv-05053-BHS-JRC 11 Petitioner, ORDER 12 v. 13 JEFFREY A. UTTECHT, 14 Respondent.

16 The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge J. Richard Creatura. On January 19, 2020, petitioner initiated this action challenging his state court convictions and sentence. See Dkts. 1, 3. Respondent filed his answer on March 3, 2020. Dkts. 8, 9. The Court has reviewed the petition, respondent’s answer, and the state court record. See Dkts. 3, 8, 9.

21 Since respondent filed the answer, petitioner’s time to file petition for collateral attack in state court passed. See Dkts. 8, 9. See RCW § 10.73.090 (no petition or motion for collateral attack may be filed more than one year after the judgment becomes final). If petitioner did not file any form of collateral relief in state court on or before April 1, 2020, he would be procedurally barred from doing so, and the petition should be dismissed with prejudice. See id. Based on the record before the Court, it is not clear if petitioner sought collateral review in state court, between March 3, 2020, the date respondent filed his answer, or if he has procedurally defaulted on all his claims as of April 1, 2020. 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 procedurally defaulted. Respondent’s supplemental answer must be filed on or before May 22, 2020. Petitioner’s supplemental response, if any, is due June 5, 2020. The Clerk is ordered to re-note the petition for consideration on June 5, 2020 16 Dated this 29th day of April, 2020.

A J. Richard Creatura United States Magistrate Judge