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 Because petitioner is in custody pursuant to the judgment of a state court, the Court

construes his federal habeas petition as one brought under 28 U.S.C. § 2254. See White v.

Lambert, 370 F.3d 1002 (9th Cir. 2004).

REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

FRANKLIN R. DASHIELL, JR.,

Petitioner,

v.

MAGGIE MILLER-STOUT,

Respondent.

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CASE NO.: C06-0372-JLR

REPORT AND RECOMMENDATION

Petitioner is a state prisoner who is currently incarcerated at the Airway Heights

Corrections Center in Airway Heights, Washington. Petitioner has filed a petition for writ of

habeas corpus in which he asserts that he is being denied a custody level promotion within the

Washington Department of Corrections because of outstanding felony warrants in two prior

criminal cases.1

 Petitioner further asserts that he has attempted to have the warrants quashed, but

that the King County Superior Court Clerk has refused to place his motions to quash on the

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REPORT AND RECOMMENDATION

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court’s calendar. Petitioner contends that this denial of access to the King County Superior Court

is causing him to be unlawfully detained at a medium custody facility. Plaintiff requests that his

outstanding felony warrants be quashed or, in the alternative, that the King County Superior Court

Clerk be compelled to place petitioner’s motions on the court calendar.

The United States Supreme Court has made clear that state remedies must first be

exhausted on all issues raised in a federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982);

28 U.S.C. §2254(b), (c). Exhaustion must be shown either by providing the highest state court

with the opportunity to rule on the merits of the claim or by showing that no state remedy remains

available. Johnson v. Zenon , 88 F.3d 828, 829 (9th Cir. 1996)(citations omitted). The

exhaustion requirement is a matter of comity, intended to afford the state courts "the first

opportunity to remedy a constitutional violation." Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir.

1981).

A federal habeas petitioner must provide the state courts with a fair opportunity to apply

controlling legal principles to the facts bearing on his constitutional claim. Picard v. Connor, 404

U.S. 270 (1971); Anderson v. Harless, 459 U.S. 4 (1982). It is not enough that all the facts

necessary to support the federal claim were before the state courts or that a somewhat similar state

law claim was made. Harless, 459 U.S. at 6. The habeas petitioner must have fairly presented

to the state courts the substance of his federal habeas corpus claims. Id.

Petitioner gives no indication in his petition that he has thus far made any attempt to

present his claim that he is being unlawfully detained to the state appellate courts for review. In

addition, it appears unlikely that petitioner has yet had time to properly exhaust his federal habeas

claim in the state courts given that the actions of the King County Superior Court which he

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REPORT AND RECOMMENDATION

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complains of occurred in January and February of this year. As it appears that petitioner has not

properly exhausted the claim presented in his federal habeas petition, this Court recommends that

petitioner’s federal habeas petition be dismissed, without prejudice, for failure to exhaust available

state court remedies. A proposed order accompanies this Report and Recommendation.

DATED this 13th day of April , 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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