                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                             FILED
                           FOR THE NINTH CIRCUIT                              NOV 21 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DANIEL MACIO SAUNDERS,                           No. 12-35834

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01456-RSM

  v.
                                                 MEMORANDUM*
KING COUNTY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                     Argued and Submitted November 5, 2013
                              Seattle, Washington

Before:       KOZINSKI, Chief Judge, PAEZ and BERZON, Circuit Judges.

       1. Saunders didn’t have a free-standing federal due process right to be

present when a criminal information was filed and an arrest warrant issued. See,

e.g., Gerstein v. Pugh, 420 U.S. 103, 119–22 (1975). Despite this well-settled law,

Saunders appears to argue that the Washington Superior Court Criminal Rules


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                               page 2
(“CrRs”) give him a federally enforceable right to be present for these events.

Even if the Rules create enforceable liberty interests beyond what is required by

federal due process, see, e.g., Ky. Dep’t. of Corr. v. Thompson, 490 U.S. 454,

460–63 (1989), Saunders’s claim fails because Washington’s procedures for filing

a criminal information and issuing an arrest warrant were followed in his case.

These events were governed by Rules 2.1 and 2.2, which make no provision for a

defendant’s presence at this stage of a criminal proceeding. Nothing in the plain

language of these rules suggests that they don’t apply to individuals like Saunders

who are in custody when charges are filed against them.

      Nor did Rule 3.2.1 give Saunders the right to be present when his

information was filed and arrest warrant issued. Under that rule, Saunders had the

right to a preliminary hearing for a probable cause determination, and to be

released if no charges were filed within 72 hours. CrR 3.2.1(a)–(b), (f). That’s

exactly what he got.


      2. Furthermore, Rule 3.2.1 didn’t bar the County from filing charges against

Saunders more than 72 hours after his arrest. Rule 3.2.1 provides that if no charges

are filed within that time frame, “the accused shall be immediately released from

jail or deemed exonerated from all conditions of release.” CrR 3.2.1(f)(2)(ii).
                                                                              page 3
Contrary to Saunders’s claim, this language did not forever exonerate him from his

prior criminal conduct; it simply required the County to release him and obtain a

valid warrant for his arrest. Since this is what the County did, Saunders’s due

process claim fails.


      AFFIRMED.
