United States District Court, D. Oregon
J. BROWN, UNITED STATES DISTRICT JUDGE
brings this proceeding pursuant to 28 U.S.C. § 2254 and
42 U.S.C. § 1983, challenging the legality of his state
conviction for Criminal Nonsupport. Pet. (ECF No. 1) at
3.Petitioner's 149-page Petition
chronicles the dispute over his child-support obligations
beginning in 2000, and culminating in his criminal conviction
for nonsupport in 2014. Id. at 14-94. Petitioner
names as Respondents Klamath County Probation Officer Jenice
Zopan, the Oregon Department of Justice, and Natalie Jean
Zitik. Id. at 1.
seeks (1) a writ of habeas corpus on the ground that his
conviction was obtained in violation of the Constitution of
the United States; (2) a declaratory judgment that the 2008
Deschutes County Circuit Court civil Order underlying his
criminal conviction is void; and (3) a preliminary injunction
"to temporarily preclude the State of Oregon from
initiating any new civil or criminal action[s] that attempt
to enforce the civil court order until its validity has been
determined on its merits in the federal courts."
Id. at 2.
forth below, this Court dismisses the Petition on the basis
that (1) to the extent Petitioner seeks habeas relief, he has
not named the proper Respondents and has failed to exhaust
his available state remedies; (2) his civil rights claims are
a de facto state appeal inextricably intertwined
with the state court judgment; (3) his civil rights claims
implicate the legality of his conviction; and (4) his request
for preliminary injunctive relief is moot.
alleges that the Deschutes County Circuit Court entered a
Judgment in 1995 "as part of [his] divorce proceeding
where [he] was ordered to pay $180 per month in child
support." Id. at 13. In 2008, an administrative
law judge entered an Order increasing Petitioner's
existing child-support obligation to $580 per month.
Id. at 32-35. The Order was filed in the Deschutes
County Circuit Court for approval. Id. at 33.
2014, Petitioner was convicted of two counts of Criminal
Nonsupport in Klamath County Circuit Court. Id. at
3; see Oregon v. Meek, No. A1589H (state court
docket). Petitioner filed a direct appeal raising state law
issues only. See Oregon v. Meek, No. A158911, 2015
WL 12662110 (Or. App. Oct 26, 2015) (Appellant's Opening
Brief). The Oregon Court of Appeals affirmed Petitioner's
conviction, without opinion. Oregon v. Meek, 385
P.3d 96 (Or. App. 2016). Petitioner filed a Petition for
Review that is pending before the Oregon Supreme Court.
See Oregon v. Meek, No. A158911 (state court
docket); Pet. at 114.
Habeas Corpus Relief (28 U.S.C. § 2254)
sets forth fourteen grounds for relief challenging his
conviction for Criminal Nonsupport. Pet. at 118-32. In his
prayer for relief, Petitioner alleges that he is actually
innocent and moves the Court to reverse his conviction.
Id. at 132.
has failed to name the proper state officials as Respondents.
See Rule 2(a), Rules Governing Section 2254 Cases in
the United States District Courts. Based on Petitioner's
assertion that he was serving a term of probation which
expired the day he filed his Petition, the proper Respondents
are Petitioner's probation officer, the Chairperson of
the Oregon Board of Parole and Post-Prison Supervision
Michael Wu, and Oregon Attorney General Ellen Rosenblum.
See Advisory Committee Notes to Rule 2 of the Rules
Governing Section 2254 Cases in the United States District
Courts. Petitioner's failure to name the proper
Respondents deprives this Court of jurisdiction. Smith v.
Idaho, 392 F.3d 350, 354-56 (9th Cir. 2004).
shall not be given leave to amend his Petition to name the
proper Respondents because it appears from the face of the
Petition that Petitioner has not exhausted his available
state court remedies. See 28 U.S.C. §
2254(b)(1) (requiring state prisoner to exhaust available
state remedies). To the extent Petitioner raised any of his
current claims on direct appeal, those claims are not
exhausted because his appeal remains pending. Further,
because state post-conviction relief is available to
Petitioner after the conclusion of his direct appeal
(see Or. Rev. Stat. §§ 138.540 &
138.550), he has not exhausted his available state remedies.
This Court is not convinced by Petitioner's assertion
that exhaustion should be excused because state remedies are
unavailable or ineffective. See 28 U.S.C. §
2254(b)(1)(B)(i) & (ii).
Petitioner has failed to set forth good cause to stay this
proceeding pending the exhaustion of his state remedies.
See Rhines v. Weber, 544 U.S. 269, 277-78 (2005)
(holding that court may stay habeas proceeding upon a showing
that the petitioner has good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
dilatory tactics); see also Mena v. Long, 813 F.3d
907, 912 (9th Cir. 2016) (holding that court has the
discretion to stay a fully unexhausted petition).
For all of these reasons, this Court dismisses the Petition,
without prejudice, to the extent that Petitioner seeks habeas
Civil Rights Action (42 ...