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Meek v. Zopan

United States District Court, D. Oregon

March 6, 2017

CHARLES MEEK, Petitioner,
v.
JENICE ZOPAN, Probation Officer, Klamath County Community Corrections, STATE OF OREGON, Department of Justice, and NATALIE JEAN ZITIK, Respondents.

          ORDER

          ANNA J. BROWN, UNITED STATES DISTRICT JUDGE

         Petitioner 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.[1]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.

         Petitioner 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.

         As set 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.

         BACKGROUND

         Petitioner 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.

         In 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.

         DISCUSSION

         I. Habeas Corpus Relief (28 U.S.C. § 2254)

         Petitioner 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.

         Petitioner 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).

         Petitioner 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).

         Finally, 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 relief.

         II. Civil Rights Action (42 ...


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