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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KENNETH JENSEN,

Petitioner,

v.

RICHARD MORGAN,

Respondent.

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Case No. C05-0807-TSZ

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner has filed a 28 U.S.C. § 2241 petition for writ of habeas corpus. Respondent

has filed a response opposing the petition. Following a careful review of the parties’ pleadings

and the record, the Court recommends that the petition be denied.

FACTS AND PROCEDURAL HISTORY

On April 17, 2002, petitioner was convicted by a jury in Snohomish County Superior

Court on one count of second-degree murder with a deadly weapon (firearm). Dkt. No. 14,

Ex. 2. Petitioner shot his neighbor following a long history of animosity. Dkt. No. 14, Ex. 6. 

Petitioner was sentenced to 195 months of confinement and is presently incarcerated at the

Washington State Penitentiary in Walla Walla. Dkt. No. 14, Ex. 2; Dkt. No. 4. 

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1

In In re: Andress, the Washington Supreme Court held that an assault cannot serve as

the predicate felony for a second-degree felony-murder conviction. 147 Wash. 2d 602 (2002).

2

The Court of Appeals addressed petitioner’s other two arguments as well, but only to

provide guidance if the trial court allowed the State to bring new charges. It found that the

trial court had erred when it attempted to clarify for the jury the definition of “ordinary

battery,” but did not determine whether the error was harmless because it vacated the

conviction on Andress grounds. In addition, the court rejected petitioner’s argument that the

trial court erred by permitting the prosecutor to argue he had a duty to warn. Dkt. No. 14,

Ex. 6. The Court of Appeals denied petitioner’s motion to reconsider. Dkt. No. 14, Exs. 7,

8. 

REPORT AND RECOMMENDATION

PAGE -2

A. Direct Review Proceedings

Petitioner appealed his conviction to the Washington Court of Appeals. Dkt. No. 14,

Ex. 4. He argued that his conviction should be vacated under In re: Andress, 147 Wash. 2d

602 (2002),1 that the court had misstated the requirements of self defense in the jury

instructions, and that the trial court erred by allowing the prosecutor to argue petitioner had a

duty to warn his victim prior to shooting him. Dkt. No. 14, Ex. 4. On March 14, 2005, in an

unpublished per curiam decision, the Washington Court of Appeals agreed with petitioner’s

first argument and reversed his conviction. Dkt. No. 14, Ex. 6. The court, however,

remanded the case to the trial court to determine whether the State should be allowed to bring

different charges in a manner consistent with the State’s mandatory joinder rule.2 Id. The

court issued its mandate on June 10, 2005. Dkt. No. 18.

B. State Collateral Review

While petitioner’s direct appeal was pending, he filed a filed variety of documents with

the Snohomish County Superior Court designed to vacate his sentence. Dkt. No. 14, Ex. 9. 

On April 17, 2003, the court transferred those documents to the Court of Appeals, which

construed them as a personal restraint petition (“PRP”). Id. On June 2, 2003, the Court of

Appeals stayed consideration of the PRP pending the Washington Supreme Court’s decision in

In re: Hinton. 152 Wash. 2d 853 (2004) (en banc) (granting personal restraint petitions based

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REPORT AND RECOMMENDATION

PAGE -3

on Andress); Dkt. No. 14, Ex. 10. Petitioner has subsequently filed several addenda to his

petition, but to date, the stay has not been lifted and no decision has yet been rendered on his

PRP. Dkt. No. 14, Ex. Nos. 11-16. 

CLAIMS FOR RELIEF

Petitioner argues that remanding his case for further proceedings, including a potential

trial under different but related charges, violates his right to avoid double jeopardy. Dkt. No.

4. He argues that, following the Court of Appeals decision to vacate his sentence, all charges

should have been dismissed with prejudice. Id. Respondent argues that petitioner has not

properly exhausted his state remedies and that this Court should abstain from considering the

matter until the Washington courts have had a sufficient opportunity to hear petitioner’s

claims. Dkt. No. 12. Respondent also argues that petitioner’s claims lack merit. Id. 

DISCUSSION

A. Petitioner’s Claims Are Properly Raised Under 28 U.S.C. § 2241.

While 28 U.S.C. § 2254 provides jurisdiction for district courts to issue writs of habeas

corpus on behalf of persons “in custody pursuant to the judgment of a state court[,]” that

statute does not apply where, as here, the state-court judgment has been vacated. Stow v.

Murashige, 389 F.3d 880, 885 (9th Cir. 2004). For prisoners whose judgments have been

vacated and who remain in custody, petitions for a writ of habeas corpus are properly brought

pursuant to 28 U.S.C. § 2241. Id. Section 2241 authorizes a general grant of habeas

authority that should be applied when, for instance, a defendant raises a double-jeopardy claim

and is being held pending retrial. Id. at 886. 

In this case, petitioner has filed this petition for habeas corpus pursuant to 28 U.S.C.

§ 2241. Because he is being held at the state penitentiary in Walla Walla following the Court

of Appeals’ decision to vacate his state-court sentence, § 2241 is the proper vehicle for his

petition. The deferential standards of the Antiterrorism and Effective Death Penalty Act of

1996 therefore do not apply. Murashige, 389 F.3d at 888. 

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3

The need to exhaust state court remedies is clearly established in the context of 28

U.S.C. § 2254 petitions. Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). A

petitioner can satisfy the exhaustion requirement by either fairly and fully presenting each of his

federal claims to the state’s highest court, or demonstrating that no state remedies are available

to him. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A petitioner fairly and fully

presents a claim if he submits it “(1) to the proper forum, (2) through the proper vehicle, and

by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403

F.3d 657, 668 (9th Cir. 2005) (emphasis added) (internal citations omitted); see also Gray v.

Netherland, 518 U.S. 152, 162-63 (1996) (indicating that exhaustion requires petitioners to

make “reference to a specific federal constitutional guarantee, as well as a statement of the

facts that entitle the petitioner to relief.”).

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Petitioner has not yet presented his claims to the Washington Supreme Court in any

direct or collateral-review proceedings.

REPORT AND RECOMMENDATION

PAGE -4

B. Petitioner Has Not Demonstrated That He Has Properly Exhausted His

Claims.

Section 2241 does not explicitly require petitioners to exhaust their state court

remedies before pursuing a writ of habeas corpus in federal court.3 Nevertheless, federal

courts require, as a matter of prudence and comity, that petitioners “exhaust available judicial

and administrative remedies before seeking relief under § 2241.” Castro-Cortez v.

Immigration and Naturalization Service, 239 F.3d 1037, 1047 (9th Cir. 2001). This requires a

petitioner to exhaust “all available state court [remedies]” before filing. Braden v. 30th

Judicial Circuit Court of Kentucky, 410 U.S. 484, 491 (1973). This judicially created rule

preserves the role of state courts and ensures their ability to administer justice without

unnecessary intrusion by federal habeas proceedings. Id. at 490-91. 

Here, petitioner has not exhausted his state-court remedies. According to the record

before the Court, petitioner has filed a PRP with the Washington Court of Appeals that

essentially raises the same issues, including his double-jeopardy claim, and that seeks the same

relief as his current petition.4 Dkt. No 14, Ex. 14. The Washington Court of Appeals,

however, has not yet issued a decision on petitioner’s PRP. Dkt. No. 14, Ex. 18. As a result,

Washington State courts have not yet had an opportunity to consider fairly the merits of

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petitioner’s claims. Petitioner has not demonstrated why, in light of ongoing state-court

proceedings, a federal court should intervene at this time. 

CONCLUSION

Because petitioner’s claims have not yet been fully adjudicated by state courts, the

Court recommends that petitioner’s 28 U.S.C. § 2241 motion be dismissed without prejudice. 

A proposed order accompanies this Report and Recommendation.

DATED this 6th day of September, 2005.

AJAMES P. DONOHUE

United States Magistrate Judge 

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