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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RICHARD A. KIRKHAM,

Petitioner,

v.

REED HOLTGEERTS,

Respondent.

Case No. C05-1551-JCC-MJB

ORDER DISMISSING

PETITION FOR WRIT OF

HABEAS CORPUS 

This matter comes before the court on petitioner’s petition for writ of habeas corpus. Dkt. 6. The

court has considered the relevant documents and the remainder of the file herein.

This motion was assigned by the Chief Judge to the undersigned Judge to assist Magistrate Judge

Benton, who is on temporary sick leave. 

Petitioner filed this habeas corpus petition on September 19, 2005, raising the following grounds

for relief:

1. Prosecutorial Misconduct. 

2. Judge Michael J. Trickey has deprived me of my right to have a fair opportunity to retain

counsel and denied me due process of law to do it, the end result being the complete denial

of counsel for my defense. 

3. On 6-17-2005 Judge Middaugh heard both issues outlined herein in grounds 1 and 2. Judge

Middaugh did on that day condone and excuse the criminal acts of the prosecutions blatant

witness tampering, allowing further proceedings in this cause though the acts of the

prosecution have prejudiced my right to a fair trial, and further proceedings are useless and

unconstitutional. 

4. Several violations of due process. 

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ORDER

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5. Due to the violations of due process described in grounds two and four of this petition I

have been unjustly confined to solitary confinement with “no contact” with my 3 children,

friends or family for one hundred and twelve days (112) to date. This has caused physical,

mental, emotional pain, impaired my ability to prepare a defense and to this day has be

under severe stress and duress, so much that I am considering a plea of guilty just to get out

of solitary confinement and be able to call my children and family. 

This habeas petition was filed before petitioner was sentenced on March 16, 2006, following

conviction on February 13, 2006 of two counts of Assault in the Third Degree, one count of Assault in the

Second Degree-Domestic Violence, one count of Rape in the Third Degree-Domestic Violence, one count

of Malicious Mischief in the Second Degree, and one count of Tampering with a Witness-Domestic

Violence. Petitioner filed a direct appeal of his conviction; that appeal is pending in the Washington Court

of Appeals. While his criminal proceedings were ongoing, petitioner filed two personal restraint petitions

with the Washington courts; these petitions were denied.

Respondent contends that this court should dismiss this habeas corpus petition because (1) the

habeas claims assert violation of rights which allegedly occurred prior to petitioner’s conviction; (2) the

claims are unexhausted and would be procedurally barred; and (3) the claims could be pursued in

petitioner’s pending direct appeal.

The court concurs that the claims petitioner raises relate to alleged violations of his constitutional

rights that occurred before his judgment and sentence was entered. Accordingly, this court can grant no

effective relief on those claims. The claims should be dismissed as moot.

Alternatively, petitioner failed to exhaust these claims in state court by presenting them properly in

state court proceedings as violation of his constitutional rights. Before claims may be raised in a federal

habeas corpus petition, state remedies must be exhausted; or an applicant must show there is either an

absence of available state corrective process or that circumstances exist that render such process ineffective

to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1). Petitioner’s direct appeal is pending, and

as respondent notes, he may be able to pursue the claims in conjunction with that appeal. This habeas

petition should be dismissed on the basis that the claims are moot, and in the alternative, on the basis that

the claims are unexhausted.

Therefore, it is hereby

ORDERED that the petition for writ of habeas corpus is DISMISSED.

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ORDER

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any

party appearing pro se at said party’s last known address. 

DATED this 15th day of December, 2006.

AROBERT J. BRYAN

United States District Judge 

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