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

RE: MOTION FOR STAY

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD L. CARMICHAEL,

Petitioner,

v.

E. K. MCDANIEL,

Respondent.

____________________________________

)

)

)

)

)

)

)

)

)

)

CASE NO. C05-2076-RSM-MAT

REPORT AND RECOMMENDATION

RE: MOTION FOR STAY

INTRODUCTION

Petitioner is currently serving a Washington state sentence in a Nevada prison, pursuant

to the Interstate Corrections Compact. He has filed a petition for a writ of habeas corpus under

28 U.S.C. § 2241, which the court has construed as a petition under § 2254. Petitioner filed a

motion for a stay, or, in the alternative, for dismissal of the petition without prejudice. For the

reasons set forth below, the court recommends denying the motion for a stay and granting the

alternative request to dismiss the petition without prejudice.

BACKGROUND

Petitioner is currently serving a 222-month sentence for kidnapping and escape convictions

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 1 of 7
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

1

 Petitioner has also been tried and convicted in Nevada on two counts of murder, and

faces consecutive life sentences when he finishes his Washington sentence. Id. at 894.

REPORT AND RECOMMENDATION

RE: MOTION FOR STAY

PAGE -2

which he obtained in Snohomish County in 1987. See State v. Carmichael, 53 Wash. App. 894

(1989). Petitioner was transferred to Nevada in 2000, pursuant to the Interstate Corrections

Compact (“ICC”), where is now serving the remainder of his Washington state sentence.1

Petitioner originally filed the instant petition under 28 U.S.C. § 2241, challenging the use

of the ICC to incarcerate him in Nevada for his Washington state conviction. (Doc. #1 at 2).

Because petitioner was in custody pursuant to a state court judgment, the court construed the

petition as a § 2254 petition, and granted petitioner leave to amend the petition to name a proper

respondent. (Doc. #5). Petitioner amended the petition on March 1, 2006, although, in so doing,

he noted his objection to the treatment of his petition as one filed under § 2254, instead of § 2241.

(Doc. #7).

Shortly after he filed the instant petition, petitioner also filed another § 2241 petition,

raising a similar challenge (hereinafter “second petition”). See Carmichael v. Washington, Case

No. C06-160-JLR-MAT. The court construed the second petition also as a § 2254 petition and

dismissed the petition, noting that to permit petitioner to simultaneously pursue two petitions

“would be inefficient and would violate the limit of one habeas petition per conviction imposed

by Congress.” (Doc. #5 in Case No. C06-160). The court advised petitioner that if he wished to

pursue the claim raised in the second petition, he could simply amend the instant petition to add

the claim. (Id.)

Instead of amending the instant petition, as the court suggested, petitioner filed a motion

to stay these proceedings or, in the alternative, to dismiss the petition without prejudice. (Doc.

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 2 of 7
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

RE: MOTION FOR STAY

PAGE -3

#9). Because respondents have yet to enter an appearance, no response to petitioner’s motion has

been filed. The matter is now ready for review.

DISCUSSION

1. Construction of Petition as § 2254 Petition

The court first addresses petitioner’s concern that the court is improperly construing his

petition as a challenge under § 2254. In the Order construing the petition, the court cited as

authority White v. Lambert, 370 F.3d 1002 (9th Cir. 2004). The following quote from that

opinion may shed more light on why the court continues to believe that the instant petition is

properly considered under § 2254:

[Petitioner] Joel White challenges the State of Washington’s authority to

continue to confine him after his transfer in November 1999 from a Washington state

prison to a privately-run prison in Colorado. Unlike most habeas petitioners, White

is not challenging the validity of his state court conviction, but rather the

administrative decision to transfer him from one prison to another. White alleges

that the transfer, initiated by the Washington Department of Corrections, was in

violation of both the United States and Washington constitutions. After exhausting

his state court remedies, White filed a petition for a writ of habeas corpus in the

federal district court for the Eastern District of Washington, invoking jurisdiction

pursuant to 28 U.S.C. § 2241.

The district court, after rejecting the State of Washington's argument that

jurisdiction was proper only under 28 U.S.C. § 2254, allowed White to proceed under

28 U.S.C. § 2241, but denied his petition on the merits. The district court also denied

White's motion for a certificate of appealability ("COA") as moot, reasoning that a

COA was not necessary when a petitioner seeks habeas relief under 28 U.S.C. § 2241.

White's appeal raises several issues that we have not previously addressed

concerning the proper jurisdictional statute and procedural requirements for a state

prisoner attacking the legality of his detention resulting from an administrative

decision by state prison authorities. The circuits that have addressed these issues are

divided on whether jurisdiction is proper under 28 U.S.C. § 2241 or under § 2254,

and on whether a COA is required. We hold that the district court erred in

concluding that White could seek habeas relief under 28 U.S.C. § 2241 , which is

properly understood as a general grant of habeas authority that provides federal court

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 3 of 7
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

RE: MOTION FOR STAY

PAGE -4

jurisdiction to a state prisoner when that prisoner is not in custody pursuant to a “state

court judgment.” Because White was “in custody pursuant to a state court

judgment” at the time he filed his federal habeas petition, 28 U.S.C. § 2254 is the

proper jurisdictional basis for his habeas petition.

370 F.3d at 1004 (emphasis added).

The facts here are similar to the facts in White v. Lambert. Like the petitioner in White,

petitioner here contends that he is not challenging his 1987 conviction but rather the fact that he

is imprisoned out-of-state. In addition, like the petitioner in White, petitioner here is in custody

pursuant to a state court judgment. Accordingly, like the petition in White, the petition here

should be considered a § 2254 petition.

2. Petitioner’s Motion for Stay or to Dismiss Petition without Prejudice

 Because the petition is properly construed as a § 2254 petition, petitioner must exhaust

state remedies before presenting his claims in federal court. See 28 U.S.C. § 2254(b). In

recognition of this exhaustion requirement, petitioner has filed the instant motion to stay these

proceedings, or, in the alternative, to dismiss the petition without prejudice. Petitioner concedes

that the claim presented in the second petition may not be completely exhausted, and seeks to

return to state court to fully exhaust the claim. (Doc. #9 at 3). If he does not obtain relief in state

court, petitioner wishes to preserve the option of returning here to present his newly-exhausted

claims.

The law governing whether it is appropriate to grant a stay in habeas proceedings is

evolving. The option of staying a petition in order to permit a petitioner to return to state court

to exhaust an unexhausted claim was originally approved by the Ninth Circuit in Calderon v.

United States Dist. Ct. (Taylor), 134 F.3d 981, 988 (9th Cir. 1998). See James v. Plier, 269 F.3d

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 4 of 7
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

2

 Technically, the standard announced by the Supreme Court in Rhines does not apply to

the “stay-and-abeyance” procedure outlined in Taylor, and either standard could apply here.

However, the Ninth Circuit noted recently that the Taylor procedure was likely to be replaced by

the newer, less cumbersome procedure governed by the new standard. See Jackson v. Roe, 425

F.3d 654, 661 n.10 (9th Cir. 2005). Petitioner has not proposed any standard for the court to

apply, and consequently, the court will apply the new standard announced in Rhines to petitioner’s

request for a stay.

REPORT AND RECOMMENDATION

RE: MOTION FOR STAY

PAGE -5

1124 (9th Cir. 2001). While the Ninth Circuit approved the “stay-and-abeyance” procedure in

Taylor, the court did not articulate a standard that should apply, other than to state that it was a

matter within the discretion of the district court. 134 F.3d at 988 n.11. The Taylor procedure was

later reviewed by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). In Kelly, the

court commented that a stay is “particularly appropriate when an outright dismissal will render it

unlikely or impossible for the petitioner to return to federal court within the one-year limitation

period imposed by [the Anti-Terrorism and Effective Death Penalty Act of 1996 or AEDPA].”

Most recently, the Supreme Court considered “whether a federal district court has

discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to

the state court in the first instance, and then to return to federal court for review of his perfected

petition.” Rhines v. Weber, __ U.S.__, 125 S. Ct. 1528, 1531 (2005). The Court held that a

district court does in fact have such discretion, under the “limited circumstances” in which there

was “good cause for the petitioner's failure to exhaust his claims first in state court.” Id. at 1535.

Applying these principles to the motion at bar,2

 the court finds that a stay is not warranted.

First, it does not appear that petitioner’s petition falls into the category described in Kelly, in

which an outright dismissal would render it unlikely or impossible for petitioner to return to

federal court within the one-year limitation period imposed by AEDPA. Although the timeliness

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 5 of 7
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

RE: MOTION FOR STAY

PAGE -6

of the petition does appear to be an issue, as the conviction pursuant to which petitioner is in

custody dates back to 1987, further delay at this point does not appear to matter. Second, it does

not appear that petitioner has shown “good cause” under Rhines to excuse his failure to raise the

unexhausted claim in state court. Indeed, petitioner was aware of the claim before he filed the

instant federal petition, as he concedes that he has already attempted to raise it in some fashion in

state court. (Doc. #5 at 3). Consequently, the record does not show that “good cause” exists

under Rhines and therefore a stay is not warranted. Petitioner’s motion for a stay should

accordingly be denied.

In the alternative, petitioner requests that the court dismiss the petition without prejudice,

with an “express order” that once petitioner has exhausted his unexhausted claim in state court,

he will be able to return to federal court to present all of his claims. (Doc. #9 at 3). The court

should not issue such an express order because it could be misconstrued as a “guarantee” of

federal review and, as mentioned, there is a timeliness issue underlying the petition which may

preclude such review. However, dismissal without prejudice would permit petitioner to at least

avoid having a subsequent petition considered to be successive. Therefore, the court recommends

that petitioner’s request for dismissal without prejudice be granted.

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 6 of 7
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

RE: MOTION FOR STAY

PAGE -7

CONCLUSION

For the foregoing reasons, the court recommends that petitioner’s motion for a stay be

denied and that his request to dismiss his habeas petition without prejudice be granted. A

proposed Order reflecting this recommendation is attached. 

DATED this 17th day of March , 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

Case 2:05-cv-02076-RSM Document 10 Filed 03/17/06 Page 7 of 7