01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES A. BATTLE, Jr.,

Petitioner,

v.

KENNETH QUINN, Superintendent, et al.,

Respondents.

____________________________________

)

)

)

)

)

)

)

)

)

)

CASE NO. C05-1541-JLR-MAT

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner James A. Battle, Jr., proceeding pro se in this 28 U.S.C. § 2254 action,

challenges his 2002 conviction by guilty plea to criminal solicitation. (Dkt. 8.) Respondent

submitted an answer, arguing that petitioner’s § 2254 motion should be dismissed with prejudice.

(Dkt. 17.) Petitioner did not submit a reply to respondent’s answer. Having reviewed the record

in its entirety, including the state court record, the Court recommends that the petition be

dismissed without prejudice.

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To

exhaust state remedies, a petitioner must present each of his claims to the state’s highest court.

Case 2:05-cv-01541-JLR Document 21 Filed 04/25/06 Page 1 of 3
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -2

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); James v. Borg, 24 F.3d 20, 24 (9th Cir. 1993).

A petitioner must “alert the state courts to the fact that he was asserting a claim under the United

States Constitution.” Hiivala v. Wood , 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan v.

Henry, 513 U.S. 364, 365-66 (1995)). “The mere similarity between a claim of state and federal

error is insufficient to establish exhaustion.” Id. (citing Duncan, 513 U.S. at 366). “Moreover,

general appeals to broad constitutional principles, such as due process, equal protection, and the

right to a fair trial, are insufficient to establish exhaustion.” Id. (citing Gray v. Netherland, 518

U.S. 152, 162-63 (1996)).

Pursuant to RCW 10.73.090, no petition or motion for collateral attack on a judgment and

sentence in a criminal case may be filed more than a year after the judgment becomes final.

Additionally, if the state court expressly declined to consider the merits of a claim based on an

independent and adequate state procedural rule, or if an unexhausted claim would now be barred

from consideration by the state court based on such a rule, a petitioner must demonstrate a

fundamental miscarriage of justice, or cause, i.e. some external objective factor that prevented

compliance with the procedural rule, and prejudice, i.e. that the claim has merit. See Coleman v.

Thompson, 501 U.S. 722, 735 n.1, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989).

In this case, petitioner filed a personal restraint petition in the Washington Court of

Appeals in 2005. (Dkt. 19, Ex. 3.) He raised the same claims in that petition as he does in this

Court, challenging: (1) his eligibility for a good time sentence reduction; and (2) the calculation

of his offender score. (Id. and Dkt. 8.) The Department of Corrections responded in state court

by asserting that petitioner was ineligible for the good time off reduction and that RCW 10.73.090

barred his offender score challenge. (Dkt. 19, Ex. 4.) In August 2005, the Washington Court of

Case 2:05-cv-01541-JLR Document 21 Filed 04/25/06 Page 2 of 3
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -3

Appeals stayed petitioner’s petition pending resolution of another case in which that court was

considering a similar early release credit claim. (Id., Ex. 5.) The court made no mention of

petitioner’s offender score claim.

Respondent notes that petitioner’s personal restraint petition remains stayed in the

Washington Court of Appeals. Respondent argues that this habeas petition should nonetheless

be denied with prejudice given that petitioner’s first claim is a Washington State statutory claim

and does not present a federal constitutional issue, and because his second claim is procedurally

barred by RCW 10.73.090.

However, at this point, there is no state court ruling on either of petitioner’s claims.

Accordingly, the Court finds both petitioner’s petition and respondent’s arguments premature. For

this reason, petitioner’s habeas petition should be denied and this action dismissed without

prejudice. A proposed Order of Dismissal Without Prejudice accompanies this Report and

Recommendation.

DATED this 24th day of April, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

Case 2:05-cv-01541-JLR Document 21 Filed 04/25/06 Page 3 of 3