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REPORT AND RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JEROME TALLEY, )

)

Petitioner, ) CASE NO. C05-2030MJP-JPD

)

v. )

)

REED HOLTGEERTS, ) REPORT AND RECOMMENDATION

)

Respondent. )

____________________________________)

INTRODUCTION AND SUMMARY CONCLUSION

This is a federal habeas action which is proceedings under 28 U.S.C. § 2241. Currently

before the Court for consideration is petitioner’s amended habeas petition, submitted to the Court on

May 9, 2006. In his amended petition, petitioner appears to allege violations of his Sixth

Amendment right to a speedy trial and his Fourth Amendment right to be free from unreasonable

searches arising from his arrest and prosecution on state criminal charges. Also before the Court for

consideration is petitioner’s motion for an evidentiary hearing, filed on July 10, 2006, as well as a

separate habeas petition, submitted to the Court on July 17, 2006, in which petitioner alleges that he

is currently being held in state custody for contempt, and that such custody violates the Constitution,

laws, or treaties of the United States. Respondent has responded to both petitions, but not to

petitioner’s motion for an evidentiary hearing.

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REPORT AND RECOMMENDATION

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This Court having reviewed petitioner’s petitions, respondent’s responses thereto, and the

balance of the record, concludes that petitioner’s federal habeas petition should be dismissed, without

prejudice, for failure to exhaust his state court remedies. This Court further concludes that

petitioner’s motion for an evidentiary hearing should be denied.

BACKGROUND

State Court Proceedings

The record reflects that in 2005, petitioner was charged with the crimes of possession of

stolen property in the second degree, possession of stolen property in the first degree, and vehicle

prowling in the second degree, in two separate King County Superior Court cases. (See Dkt. No. 9 at

7; Dkt. No. 10 at 8.) The trial court conducted a competency hearing and, in August 2005, found

petitioner competent to stand trial. (See Dkt. No. 9 at 7; Dkt. No. 10 at 9.) In July 2005, while he

was awaiting trial, petitioner filed personal restraint petitions in the Washington Court of Appeals,

Division One, and in the Washington Supreme Court. (Dkt. No. 9 at 7.) In his petition to the Court

of Appeals, petitioner apparently challenged the adequacy of the charging documents. (See id.) The

Acting Chief Judge of the Court of Appeals dismissed that petition as premature. (Id.) 

In his petition to the Supreme Court, petitioner apparently argued that he was arrested on

charges without probable cause. (See id.) The Supreme Court Commissioner, upon considering both

a motion for discretionary review with respect to the petition filed first in the Court of Appeals, and

the petition filed first in the Supreme Court, concluded that the personal restraint petitions were

premature as the matters raised therein were ones that could be raised in the trial court or on direct

appeal. (Id. at 7-8.) The Supreme Court Commissioner issued his rulings in October 2005 (see Dkt.

No. 9 at 7-10), and petitioner’s motions to modify the Commissioners rulings were denied in

November 2005 (see Dkt. No. 1 at 8-9). 

In March 2006, one of the criminal actions filed against petitioner was dismissed with

prejudice after the victim refused to testify on behalf of the state (see Dkt. No. 20, Attachment A),

and petitioner was convicted in the other action on a charge of possession of stolen property in the

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REPORT AND RECOMMENDATION

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second degree (Dkt. No. 20, Attachment B). Petitioner appeared for sentencing on June 2, 2006. 

(Id., Attachment C.) The minutes of that hearing indicate, among other things, that the court ordered

petitioner to be fingerprinted and that petitioner’s sentencing was continued to June 30, 2006. (Id.)

On June 29, 2006, the state moved to compel petitioner to give his fingerprints. (Dkt. No. 30,

Appendix B.) Petitioner refused to willingly give his fingerprints and the court ordered that

petitioner be held in civil contempt of court. (See id., Appendices A and B.) Petitioner was advised

that he would be held in the King County Jail until such time as he provided his fingerprints, that any

time served pursuant to the contempt order would run consecutive to any sentence imposed, and that

he would receive no credit towards his sentence while in custody for contempt. (See id.)

Petitioner appeared again before the court on September 29, 2006. (Id., Appendix C.) At

that time, the court ordered that new counsel be appointed to represent petitioner based on

petitioner’s assertion that he was not competent. (Id., Appendix E.) The court also continued

petitioner’s sentencing hearing to October 26, 2006. (Id., Appendix D.) On October 24, 2006,

petitioner appeared before the Court with his appointed counsel. (Id., Appendix G.) At that hearing,

the court advised the parties that it found petitioner competent enough to understand that he needed

to provide his fingerprints in order to be released from custody. (Id.) Defense counsel advised the

court that he had conferred with petitioner and advised him that it was in his best interests to provide

fingerprints for the judgment and sentence. (Id.) Petitioner informed the court that he intended to

plead the Fifth Amendment and he refused to answer any further questions. (Id.) The court, in turn,

advised petitioner that he would remain in civil contempt until he provided his fingerprints. (Id.) It

does not appear from the record that petitioner has yet been sentenced in his underlying criminal case

or that there is any sentencing date currently set.

Federal Court Proceedings

In December 2005, petitioner filed his original federal habeas petition under 28 U.S.C. §

2254. Petitioner asserted in that petition that he was being held without process or a warrant. After

reviewing the petition, as well as supplemental submissions by petitioner indicating that he had

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1

 Petitioner filed yet another habeas petition under § 2241 in September 2006. Petitioner

alleged in that petition that he was being held in custody in violation of the Constitution, laws, or

treaties of the United States, but he identified no specific claims for relief nor any facts to support his

allegation. 

2

 Respondent’s motion for an extension of time to file his supplemental response (Dkt. No.

29) is GRANTED. The supplemental response has been made a part of the record.

REPORT AND RECOMMENDATION

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recently been discharged from the Western State Hospital where he had undergone a mental health

evaluation to determine if he was competent to proceed with respect to his state court criminal

charges, the undersigned concluded that this Court lacked jurisdiction to intervene in petitioner’s

ongoing state court proceedings and therefore issued a Report and Recommendation recommending

that the action be dismissed without prejudice. Petitioner filed objections to this Court’s Report and

Recommendation and, in March 2006, the matter was remanded back to this Court for consideration

of the petition in light of 28 U.S.C. § 2241. 

In May 2006, this Court issued an Order directing petitioner to file an amended habeas

petition because petitioner had failed to name a proper respondent in his original petition. (Dkt. No.

13.) Petitioner subsequently filed his amended petition and the petition was ordered served on

respondent. (Dkt. Nos. 15 and 17.) Respondent filed a timely answer to the petition in June 2006. 

(Dkt. No. 20.)

In July 2006, petitioner filed another petition for writ of habeas corpus, which was posted in

this action, in which he alleged that he was being held in state custody for contempt and that he had

never been afforded a hearing or trial.1

 (Dkt. No. 25.) In September 2006, this Court issued an

Order directing that respondent file a response to petitioner’s contention that his current custody,

pursuant to an order of contempt, violates his constitutional rights. (Dkt. No. 26.) The Court

received respondent’s supplemental response in November 2006.2 (Dkt. No. 30.) The briefing is

now complete and this matter is ripe for review.

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3

 This is in contrast to 28 U.S.C. § 2254 which does expressly require a federal habeas

petitioner to exhaust state court remedies before pursuing a petition for writ of habeas corpus in

federal court. 

REPORT AND RECOMMENDATION

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. DISCUSSION

Petitioner asserts in his amended habeas petition, filed on May 9, 2006, that his Sixth

Amendment right to a speedy trial was violated when law enforcement officials failed to complete

their investigation of the crime within the statute of limitations. (Dkt. No. 17 at 3.) He further

asserts that he was subjected to an unreasonable search by law enforcement officials, and that officers

failed to act pursuant to the warrant requirement of the Fourth Amendment. (Id.) Respondent, in his

response to the May 9 petition, argues that petitioner is required to exhaust his state court remedies,

and that he has not done so. (Dkt. No. 20 at 2.) Respondent further argues that petitioner has not

presented any comprehensible grounds for relief. (Id.) 

Petitioner asserts in his July 17, 2006, petition, that he is no longer being held for a crime, but

that he is instead being held for contempt and that he had never been afforded a hearing or a trial. 

(Dkt. No. 25.) Petitioner contends that his current custody violates the Constitution, laws, or treaties

of the United States. (Dkt. No. 25.) Respondent, in his response to petitioner’s July 17 petition,

argues that the Superior Court’s contempt order was lawful. (Dkt. No. 30.) Respondent further

argues that because petitioner had the right to appeal the contempt order, and failed to do so, he has

failed to exhaust his state court remedies. (Id.)

Section 2241does not expressly require a petitioner to exhaust state court remedies before

pursuing a writ of habeas corpus in federal court.3 However, principles of comity and federalism

require that federal courts not entertain habeas challenges to ongoing state court proceedings unless

the petitioner can show that he has exhausted available state avenues for raising his federal claims,

and that “special circumstances” warrant federal intervention. Carden v. Montana, 626 F.2d 82, 83-

84 (9th Cir. 1980).

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REPORT AND RECOMMENDATION

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Petitioner makes no showing that he has exhausted his state court remedies with respect to his

federal habeas claims. With respect to the claims asserted in petitioner’s May 9 petition, the record

reflects that petitioner did file personal restraint petitions in the state courts early in his criminal

proceedings in which he may have raised some similar claims. However, petitioner’s claims, as

presented in his May 9 petition, are not sufficiently clear, nor is the record sufficiently complete, for

this Court to determine whether petitioner presented precisely the same claims to the state courts as

he presents here. 

And, even assuming petitioner did present the same claims to the state courts as he presents

here, the state courts expressly declined to consider the merits of those claims because they

concluded that presentation of those claims by way of a personal restraint petition was premature. 

Because petitioner did not present his claims to the state courts in a procedural context in which the

merits could be considered, his claims cannot be considered fairly presented for exhaustion purposes. 

Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351

(1989)). Once petitioner is sentenced, and a judgment is entered, he will have the opportunity to

present any constitutional claims challenging the lawfulness of his criminal proceedings to the state

courts on appeal. Petitioner identifies no special circumstances which would warrant this Court’s

consideration of any such claims prior to the conclusion of his ongoing state court criminal

proceedings. 

Petitioner also fails to demonstrate that his challenge to his contempt order is eligible for

federal habeas review. As respondent correctly points out, the statutory provisions governing civil

contempt proceedings in Washington State provide that contempt proceedings are subject to appellate

review. See RCW 7.21.070. Nothing in the record suggests that petitioner has yet sought to appeal

the contempt order pursuant to which he is currently confined. In addition, nothing in the record

suggests that there are any special circumstances which would warrant this Court’s intervention into

the contempt proceedings. 

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REPORT AND RECOMMENDATION

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As petitioner makes no showing that he has either exhausted state court remedies with respect

to his federal habeas claims or that “special circumstances” warrant this Court’s intervention in state

court proceedings which are currently on going, this Court recommends that petitioner’s federal

habeas petitions be denied, and that this action be dismissed without prejudice. This Court further

recommends that petitioner’s motion for an evidentiary hearing be denied. A proposed order

accompanies this Report and Recommendation.

DATED this 13th day of December, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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