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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD A. KIRKHAM,

Petitioner,

v.

REED HOLTGEERTS,

Respondent.

CASE NO. C05-1551C

ORDER

This matter comes before the Court on the Report and Recommendation (“R&R”) by United

States Magistrate Judge Monica J. Benton recommending that the Court deny Petitioner’s request for a

temporary restraining order (Dkt. No. 9-1). The Court has carefully considered Petitioner’s objections to

the R&R (Dkt. No. 13) and the complete record in this case, and determined that neither oral argument

nor the submission of additional evidence is necessary. For the reasons that follow, the Court DENIES

Petitioner’s objections, ADOPTS the R&R, and DENIES Petitioner’s motion for a temporary restraining

order. 

I. Background and Procedural History

This matter arises, originally, out of Petitioner’s arrest and pending trial in King County Superior

Court on a variety of domestic-violence related charges. (See Dkt. No. 6, at 3.) Alleging that he is being

“systematically methodically and maliciously prosecuted and denied effective avenues of relief,” Petitioner

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1

 Because the habeas petition had not yet been served and Respondent had not yet appeared,

Magistrate Judge Benton deemed only the motion for TRO ripe for resolution. (Dkt. No. 9, at 1–2.) The

Court concurs in this decision. However, after issuing the R&R on the TRO motion, Magistrate Judge

Benton issued an order to show cause why the petition should not be dismissed for failure to exhaust

state remedies. (Dkt. No. 12.) Petitioner has responded to that order (Dkt. No. 14), but the Court will

not address that issue here. 

ORDER – 2

filed his habeas corpus petition under 28 U.S.C. § 2254 on September 19, 2005. (See id. 2; Dkt. No. 1.) 

Specifically, Petitioner alleges that the King County Deputy Prosecutor assigned to his case improperly

authorized a search of his cell and, after that search revealed Petitioner’s romantic letters to a female

inmate, the prosecutor used the content of those letters to turn the alleged victim (with whom Petitioner

was also romantically involved) against him. (Dkt. No. 6, at 10–11.) Petitioner also alleges that jailhouse

restrictions on telephone and mail access denied him sufficient opportunity to retain private counsel rather

than his “incompetent” assigned counsel (id. 13) and has shown bias by denying Petitioner’s motions for

relief (id. 23). He further alleges that he has been unfairly placed in solitary confinement (id. 24) and

denied access to legal research materials (id. 28). He surmises that the cumulative effect of these actions

has been to deny him his Sixth Amendment right to counsel and Fifth Amendment right to due process. 

(Id. 36–37.) Petitioner further notes that his personal restraint petition to the Washington State Court of

Appeals was denied on August 4, 2005. (Id. 5.) 

Magistrate Judge Benton granted Petitioner’s request to proceed in forma pauperis on October 4,

2005. (Dkt. No. 5.) That same day, Petitioner re-filed his § 2254 petition with a motion for a temporary

restraining order (“TRO”) under Civil Rule 65. (Dkt. No. 7.) Complaining that the superior court

refuses to stay the trial, Petitioner argues that he will suffer irreparable harm if his TRO is denied and he

is forced to go to trial. (Id. 2–3.) 

On October 19, 2005, Magistrate Judge Benton issued the R&R recommending that Petitioner’s

motion for TRO be denied.1

 (Dkt. No. 9-1.) Because Petitioner was a party to a pending state action

when he filed his motion, the R&R found that Younger v. Harris, 401 U.S. 37 (1971), required the court

to abstain and barred an injunction. (Id. 2–3.) Petitioner filed his objections to the R&R on November 4,

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26 ORDER – 3

2005, arguing (on narrower grounds than in his habeas petition) that he has not had sufficient opportunity

to retain counsel, and that the alleged victim—whom he once believed would be an exculpatory

witness—has now turned against him due to the prosecutor’s actions. (Dkt. No. 13, at 2–7.) He insists

that federal intervention is warranted because the superior court refuses to dismiss or stay the state action

despite what Petitioner alleges are gross constitutional violations. (Id. 6.) Consistent with the letter from

Magistrate Judge Benton accompanying the R&R, Petitioner’s objections were noted as ripe for

consideration by this Court on November 25, 2005. (Dkt. No. 9-2.) 

II. Legal Analysis

A. Standard of Review

Civil Rule 72 requires that, following a United States Magistrate Judge’s report and

recommendation in a prisoner-petition case, there must be sufficient opportunity for petitioner to object,

and for the respondent to respond to any such objections. FED. R. CIV. P. 72(b); see also 28 U.S.C.

§ 636(b)(1). Following that process, the district court must “make a de novo determination upon the

record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific

written objection has been made.” Id.

B. Anti-Injunction Act and Younger Abstention 

However, before adjudicating Petitioner’s motion under Civil Rule 65(b), the Court must first

inquire as to whether it has any basis to grant injunctive relief and stay a pending state-court action. This

analysis begins with the Anti-Injunction Act, which sets forth the presumption that federal courts “may

not grant an injunction to stay proceedings in a State court” unless another statute expressly authorizes

such action. 28 U.S.C. § 2283. To overcome this presumption, Petitioner must show that he is entitled

to equitable relief under the Younger abstention doctrine. The general rule, as enunciated by the Younger

Court and amplified by its progeny, is that federal courts “should not act to restrain a criminal

prosecution when the moving party has an adequate remedy at law and will not suffer irreparable injury if

denied equitable relief.” Younger, 401 U.S. at 43–44. In this Circuit, the rule has been expressed as

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requiring abstention “if (1) there are ongoing state judicial proceedings, (2) the proceedings implicate

important state interests, and (3) there is an adequate opportunity in the state proceedings to raise federal

[constitutional] questions.” Dubinka v. Judges of Superior Court, 23 F.3d 218, 223 (9th Cir. 1994)

(internal quotations omitted). Petitioner does not dispute that there is an ongoing state prosecution or

that the state has a strong interest in enforcing its criminal laws. And although the state courts have

rebuffed his constitutional concerns thus far, he has not lacked opportunities to raise those issues;

“ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for

vindication of federal constitutional rights.” Kugler v. Helfant, 421 U.S. 117, 124 (1975). 

C. The “Bad-Faith” Exception to Younger Abstention

Instead, Petitioner argues that because “the state is now knowingly pursuing a conviction in bad

faith, and cannot in any way obtain a legally valid conviction,” his circumstances present the rare

exception justifying injunctive relief. (Dkt. No. 13, at 9.) In doing so, he raises the well-established “bad

faith” exception to Younger: “Only in cases of proven harassment or prosecutions undertaken by state

officials in bad faith without hope of obtaining a valid conviction . . . is federal injunctive relief against

pending state prosecutions appropriate.” Perez v. Ledesma, 401 U.S. 82, 85 (1971). 

Here, Petitioner has failed to show the requisite harassment or bad faith by state officials. 

Petitioner’s complaints about his inability to retain counsel are not detailed in his TRO motion, but in his

habeas petition he alleges that the superior court placed restrictions on his mail and telephone access in

jail. These restrictions, argues Petitioner, resulted in delays in his receipt of mail and “forced” him to

choose between “incompetent” assigned counsel and proceeding pro se. (Dkt. No. 6, at 15–19.) 

Petitioner’s second ground for injunctive relief is the prosecutor’s alleged interference with what

Petitioner anticipated would be exculpatory testimony by the alleged victim. Because the alleged victim

ceased communicating with him after his love letters to the female inmate were discovered, Petitioner

surmises that the alleged victim’s testimony is now irreconcilably tainted. (Obj. 7.) 

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The Court finds nothing in this record to suggest that state judicial and prosecutorial officials have

engaged in conduct related to Petitioner’s prosecution for reasons “other than a good faith attempt to

enforce the State’s criminal laws.” Perez, 401 U.S. at 85. His complaints of constitutional deprivations

may sound in habeas corpus after he has established that violations actually occurred in the course of his

criminal case and he has challenged those violations through post-trial appeals in the state’s judicial

system. However, the present record reflects little more than Petitioner’s personal displeasure with the

conduct of the prosecutor, judge, the alleged victim, and his stand-by counsel. See New Orleans Pub.

Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 365 (1989) (“[I]t is clear that the mere

assertion of a substantial constitutional challenge to state action will not alone compel the exercise of

federal jurisdiction.”) (internal quotations omitted). This is insufficient to overcome the state’s strong

interest in “carrying out the important and necessary task of enforcing its criminal laws” without

unwarranted federal interference before the conclusion of the prosecution. Id.; see also Drury v. Cox,

457 F.2d 764, 764–65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a defendant entitled

to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment

has been appealed from, and the case concluded in state courts.”). 

III. Conclusion

In sum, the Court finds that Petitioner’s objections to the R&R are without merit. The Court

DENIES those objections and ADOPTS the recommendations of Magistrate Judge Benton. 

Accordingly, the Court will not exercise its discretion to stay Petitioner’s criminal case in state court, and

DENIES his motion for a temporary restraining order. 

SO ORDERED this 1st day of December, 2005.

A

UNITED STATES DISTRICT JUDGE

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