Lee v. Bennett

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE LARRY J. LEE, 9 Petitioner, Case No. C24-5523-JNW-SKV 10 v. REPORT AND RECOMMENDATION JASON BENNETT, 12 Respondent.

14 I. INTRODUCTION 15 Petitioner Larry J. Lee is a Washington state prisoner who is currently confined at the Stafford Creek Corrections Center in Aberdeen, Washington. Dkt. 5 at 2. His confinement is pursuant to a judgment and sentence entered in Pierce County Superior Court case number 15-1- 02250-6. Id. at 2. Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in which he contends that the trial court violated his Fourteenth Amendment right to due process by failing to apply a retroactive sentencing statute, RCW 9.94A.760 (2023), to his sentence. Id. at 3-7.

22 // // 1 II. DISCUSSION 2 The Ninth Circuit has held that “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.” White v. Lambert, 370 4 F.3d 1002, 1009-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 5 F.3d 546 (9th Cir. 2010) (en banc). Because Petitioner submitted his petition pursuant to § 2241, and not § 2254, the Court entered an Order on July 30, 2024, in which it declined to serve the petition or to direct that an answer be filed. Dkt. 6. The Court granted Petitioner leave to correct this deficiency by submitting an amended petition pursuant to § 2254 within 30 days of the date the Order was entered. Id. The Court noted in the Order that if no amended petition was timely filed, or if Plaintiff filed an amended petition that was not pursuant to § 2254, the Court would recommend this matter be dismissed.

12 On August 8, 2024, a notice of appeal to the Ninth Circuit was entered on the docket in this matter. Dkt. 7. On August 30, 2024, an Order from the Ninth Circuit was entered, dismissing the appeal. Dkt. 9. To date, Plaintiff has not submitted an amended petition or otherwise responded to the Court’s Order.

16 III. CERTIFICATE OF APPEALABILITY 17 A petitioner seeking post-conviction relief from a state court judgment may appeal a district court’s dismissal of his federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(2). A certificate of appealability may issue only where a petitioner has made “a substantial showing of the denial of a constitutional right.” Id. A petitioner may satisfy this standard “by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under this standard, the Court should find that Petitioner is not entitled to a certificate of appealability in this matter.

3 IV. CONCLUSION 4 Because Plaintiff failed to respond to the Court’s Order directing him to submit an amended petition and because habeas relief is not available to Petitioner under § 2241, the Court recommends the proposed petition, Dkt. 5, be DISMISSED without prejudice. A certificate of appealability should be DENIED. A proposed Order accompanies this Report and Recommendation.

9 V. OBJECTIONS 10 Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit not later than fourteen (14) days from the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge’s motions calendar fourteen (14) days from the date they are filed. Responses to objections may be filed by the day before the noting date. If no timely objections are filed, the matter will be ready for consideration by the District Judge on October 7, 2024.

17 Dated this 16th day of September, 2024.

A 19 S. KATE VAUGHAN United States Magistrate Judge