David Schubert v. Kenneth Quinn

MEMORANDUM

Washington state prisoner David Schubert appeals the district court’s denial of his habeas corpus petition seeking relief from his conviction for second-degree murder and his 164-month sentence, which is scheduled to terminate in September 2011. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We reverse and remand.

The district court erred by concluding that Schubert procedurally defaulted federal habeas claims 2, 3, 4, 5, 8, and 9. The last reasoned state decision, that of the Washington Supreme Court Commissioner denying review of Schubert’s personal restraint petition (“PRP”), declined to consider these claims on the ground that they had been raised and rejected on direct appeal, and so could not be relitigated in a PRP. See, e.g., In re Taylor, 105 Wash.2d 683 , 717 P.2d 755, 758 (1986) (en banc). But “[w]hen a state court declines to review the merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal review.... When a state court refuses to readjudicate a claim on the ground that it has been previously determined, the court’s decision does not indicate that the claim has been procedurally defaulted.” Cone v. Bell,…