Lee v. Bennett

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA LARRY J. LEE, CASE NO. 3:24-cv-05523-JNW-SKV Petitioner, ORDER RESOLVING R&R AND 9 ORDER TO SHOW CAUSE v. JASON BENNETT, Respondent.

1. INTRODUCTION The Report and Recommendation (R&R) by U.S. Magistrate Judge S. Kate Vaughan, Dkt. No. 10, is before the Court, as are the Petitioner’s timely objections, Dkt. No. 12. The R&R recommends dismissing this case without prejudice sua sponte for obvious defects in the petition. Dkt. No. 10. Specifically, Petitioner Larry J. Lee filed his habeas petition under 28 U.S.C. § 2241, rather than 28 U.S.C. § 2254, even though he challenges a state-court conviction. See Dkt. No. 1-1. Based on its de novo review of the R&R, the objections, and the remainder of the record, the Court OVERRULES Lee’s objections, Dkt. No. 12, and ADOPTS the R&R IN PART, as discussed below.

1 2. DISCUSSION 2.1 Petitioner’s objections are overruled.

First, the Court considers Petitioner’s objections to the R&R, ruling as follows: OBJECTION RULING Objection No. 1: “The magistrate Overruled. The Court did not violates 28 U.S.C. § 636(b) and erroneously recharacterize Habeas Rule 4 and 8(b) by Petitioner’s habeas petition. Binding recharacterizing Petitioner’s Habeas precedent requires Petitioner to Corpus [petition] as a 28 U.S.C. pursue his claim under 28 U.S.C. § 9 §2254.” 2254.

Objection No. 2: Petitioner objects Overruled as vague. Objections 11 to the entire Magistrate’s Report and must be specific to an issue in the Recommendation. R&R. 13 Objection No. 3: “The Report and Overruled. The Court did not fail to Recommendation failed to address address Petitioner’s affidavit.

14 Petitioner’s affidavit in support of 28 U.S.C. § 2241.”

Objection No. 4: “The Report and Overruled. The issues addressed in Recommendation failed to apply the the R&R have nothing to do with retroactivity analysis pursuant to retroactivity or Teague.

Teague v. Lane[.]”

Objection No. 5: “The Report and Overruled. The R&R was not 19 Recommendation failed to address, required to address this issue. and the Magistrate failed/ refused to Further, Lee’s request to produce 20 Order the respondent, to produce any the record is not ripe, as Defendants record pursuant to Rule 5 of the have not been served.

21 Rules Governing Section 2254 for the District Court.”

OBJECTION RULING Objection No. 6: “The Report and Overruled. Petitioner’s Motion for 3 Recommendation failed to take Judicial Notice was not ripe at the Judicial Notice pursuant to the time of the R&R. Further, the issues 4 mandatory provision of section (d), presented in that motion have no nor was petitioner allowed to be bearing on the R&R. 5 heard pursuant to section (e).”

Objection No. 7: “The Report and Overruled. The R&R did not Recommendation failed to address, address this issue, and any request and the Magistrate failed to order the to produce the record would not have respondent to produce a certified been ripe, as Defendants have not copy of [various records and been served. documents].”

10 Objection No. 8: “The Magistrate Overruled. See discussion below. violated the Magistrate’s Act by 11 making a procedural defense lacking a record.”

13 Objection No. 9: “The Report and Overruled. Petitioner does not Recommendation fails to address explain how this objection relates to 14 petition[er’s] Motion for Stand-By the R&R, nor does he cite support Counsel.” for the proposition that the 15 Magistrate Judge was required to consider his Motion for Stand-By 16 Counsel.

18 2.2 On de novo review, the Court adopts the R&R in part.

19 Before a district court directs service of a habeas petition, “[it] may, sua sponte, raise the issue of procedural default when the default is obvious from the face of the petition and when recognizing the default would ‘further the interests of comity, federalism, and judicial efficiency.’” Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003) (quoting Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998)). But “[a] district court’s use of this summary dismissal power is not without limits.”

2 Boyd, 147 F.3d at 1128. “A habeas court must give a petitioner notice of the procedural default and an opportunity to respond to the argument for dismissal.”

4 Id. 5 Lee’s petition is deficient on its face. Lee challenges a Washington-state conviction. See Dkt. 1-1. Thus, Ninth Circuit precedent requires him to file his habeas petition under 28 U.S.C. § 2254. Dkt. No. 6 at 1 (quoting White v. Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (holding “28 U.S.C. § 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment[.]”)). Nevertheless, Lee filed his habeas petition under 28 12 U.S.C. § 2241 and refused to amend it when Judge Vaughan gave him the opportunity.

14 The Court finds that directing the U.S. Marshals to serve Defendants with the operative, defective petition would be a waste of judicial resources. See Vang, 329 F.3d at 1073. Further, allowing this defective petition to proceed would not aid in the resolution of Lee’s actual habeas claims.

18 3. CONCLUSION 19 Accordingly, the Court ORDERS: 20 • The R&R, Dkt. No. 10, is ADOPTED IN PART consistent with this 21 Order.

22 • Lee’s objections, stated in Dkt. No. 12, are OVERRULED.

1 • Lee must SHOW CAUSE no later than Friday, November 8, 2024, 2 explaining why his petition should not be dismissed without prejudice.

3 Specifically, he is to SHOW CAUSE as to why his habeas petition 4 should proceed under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.

5 Alternatively, the Court affords Lee another opportunity to amend his 6 Petition by November 8, 2024, see Dkt. No. 6-1 (amended petition 7 form).

8 • Failure to show cause or amend by the deadline will result in the 9 dismissal of this case without prejudice.

10 Dated this 11th day of October, 2024.

11 a 12 Jamal N. Whitehead United States District Judge