Opinion
2:24-cv-0717-JHC-DWC
07-17-2024
BENJAMIN K. NG, Petitioner, v. JASON BENNETT, Respondent.
Noting Dated: July 31, 2024
REPORT AND RECOMMENDATION
David W. Christel, United States Magistrate Judge
The District Court has referred this federal habeas action to United States Magistrate Judge David W. Christel. Petitioner Benjamin K. Ng, proceeding pro se, filed a motion to proceed in forma pauperis (“IFP”) (Dkt. 1), a proposed federal habeas petition (Dkt. 1-1), and other proposed motions and requests (Dkts. 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8). On June 14, 2024, the Court ordered Petitioner to show cause on or before July 15, 2024, why his proposed Petition should not be dismissed as time barred (“Show Cause Order”). Dkt. 4. As Petitioner has failed to show cause by the court-imposed deadline, the undersigned finds the proposed Petition is untimely under 28 U.S.C. § 2244(d)(1) and no equitable tolling principles apply. Therefore, the undersigned declines to order service upon Respondent and, instead, recommends the time- barred proposed Petition be dismissed with prejudice under Rule 4 of the Rules Governing § 2254 cases (“Habeas Rules”). It is further recommended Petitioner's IFP motion and all proposed filings be denied as moot.
I. Background
The Court previously summarized the background in this action as follows:
Petitioner is currently incarcerated at Stafford Creek Corrections Center, where he is serving a sentence of confinement arising out of a jury conviction entered by the Superior Court of Washington for King County for multiple counts of aggravated murder and one count of first-degree assault. Dkt. 1-1; State of Washington v. Benjamin Kin Ng, Superior Court of Washington for King County Case No. 83-1-00504-0 (judgment entered October 25, 1983), docket available at https://dja-prd-ecexap1.kingcounty.gov/ (last accessed June 11, 2024); State of Washington v. Benjamin Kin Ng, 104 Wash.2d 763, 769, 713 P.2d 63, 66 (1985), opinion available at Washington State Judicial Opinions Public Access Website (last accessed June 11, 2024).
Although Petitioner indicates he did not file a direct appeal of his state-court conviction (Dkt. 1-1 at 2), a review of public records shows he did. State of Washington v. Benjamin Kin Ng, 104 Wash.2d 763, 769, 713 P.2d 63, 66 (1985), opinion available at Washington State Judicial Opinions Public Access Website (last accessed June 11, 2024). The Supreme Court of Washington denied Petitioner's direct appeal and affirmed his conviction on December 5, 1985. Id.
Nearly four decades later, Petitioner filed the instant action seeking federal habeas relief on his state-court conviction and sentence. See Dkts. 1, 1-1. Petitioner represents he has not filed any other petition, application, or motion about the issues raised in this action. Dkt. 1-1 at 2-6.Dkt. 4 at 2 (footnote omitted). After screening the proposed Petition, the Court concluded it was likely time barred and ordered Petitioner to show cause why this action should not be dismissed under 8 U.S.C. § 2244(d)(1). Id. at 3-4. The deadline to show cause has now passed with no response filed by Petitioner.
II. Standard of Review
Under Rule 4 of the Habeas Rules, the Court is required to perform a preliminary review of all habeas petitions. The Rule specifically directs the Court to dismiss a habeas petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”
Under Rule 2(a) of the Habeas Rules, “the petition must name as respondent the state officer who has custody.” Further, the petition must:
(1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the petitioner or person authorized to sign it for the petitioner under 28 U.S.C. § 2242.Id. at Rule 2(c). The petition must “substantially follow” a form prescribed by the local district court or the form attached to the Habeas Rules. Id. at Rule 2(d).
III. Discussion
A. The proposed Petition cannot proceed under 28 U.S.C. § 2241.
The Ninth Circuit has held that “28 U.S.C. § 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment.” White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). Although Petitioner indicates he is filing a § 2241 petition and uses the standard form for such petitions, he is currently confined pursuant to a state-court judgment of conviction. Dkt. 1-1; State of Washington v. Benjamin Kin Ng, Superior Court of Washington for King County Case No. 83-1-00504-0 (judgment entered October 25, 1983). Therefore, 28 U.S.C. § 2254 is the only appropriate vehicle for challenging his confinement, and his arguments to the contrary are unavailing. Thus, the Court construes the proposed Petition as one filed pursuant to 28 U.S.C. § 2254.
B. The proposed Petition is time-barred.
Next, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations on § 2254 petitions. See 28 U.S.C. § 2244(d)(1). Because Petitioner's state- court conviction became final before AEDPA was passed, the one-year limitations period for his federal habeas petition began to run on April 25, 1996-the day after AEDPA was enacted.
Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002). In his proposed Petition, Petitioner indicates he did not seek collateral review of his sentence or conviction in state court such that he would be entitled to statutory tolling. Dkt. 1-1 at 5. Thus, the limitations period ran without interruption until it elapsed on April 24, 1997. Petitioner signed his proposed Petition on May 23, 2024, more than two-and-a-half decades after the limitations period expired. Id. at 8.
As Petitioner has not filed a response to the Court's Show Cause Order, he has failed to demonstrate the existence of extraordinary circumstances that would toll AEDPA's limitations period and excuse the late filing of his proposed Petition. See Holland v. Florida, 560 U.S. 631 (2010). Because Petitioner has not shown he is entitled to equitable tolling or otherwise responded to the Court's Show Cause Order, the undersigned finds his proposed Petition is time-barred and should be dismissed.
C. An evidentiary hearing and a certificate of appealability should be denied.
The undersigned finds it is not necessary to hold an evidentiary hearing in this case because this action may be resolved on the face of the proposed Petition and upon review of public records subject to judicial notice. Schriro v. Landrigan, 550 U.S. 465 (2007).
Finally, no reasonable jurist would disagree with the above evaluation of the timeliness of the proposed Petition or conclude that the issues presented in the proposed Petition should proceed further. See 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322 (2003). Therefore, the undersigned also finds Petitioner is not entitled to a certificate of appealability.
IV. Conclusion
For the reasons outlined above, Petitioner is not entitled habeas relief as his proposed Petition is untimely and no equitable tolling principles apply. Thus, in accordance with Rule 4 of the Habeas Rules, the undersigned declines to direct a response from Respondent and, instead, recommends the time-barred proposed Petition (Dkt. 1-1) be dismissed with prejudice. It is further recommended Petitioner's IFP motion (Dkt. 1) and all proposed filings (Dkts. 1-2, 1-3, 14, 1-5, 1-6, 1-7, 1-8) be denied as moot. Finally, the undersigned finds no evidentiary hearing is required and recommends that no certificate of appealability shall issue.
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the District Judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on July 31, 2024, as noted in the caption.
ORDER ADOPTING REPORT AND RECOMMENDATION
JOHN H. CHUN, United States District Judge
The Court, having reviewed the Report and Recommendation of Magistrate Judge David W. Christel, objections to the Report and Recommendation, if any, and the remaining record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) Petitioner's federal habeas Petition is dismissed with prejudice.
(3) Petitioner's motion to proceed in forma pauperis (Dkt. 1) and all other proposed filings (Dkts. 1-2-1-8) are denied as moot.
(4) No evidentiary hearing is necessary and a certificate of appealability is denied in this case.
(5) The Clerk is directed to send copies of this Order to Petitioner and to the Hon. David W. Christel.
JUDGMENT IN A CIVIL CASE
__Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
_X_ Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.
THE COURT HAS ORDERED THAT:
The Report and Recommendation is adopted and approved. The Petition is barred by the one-year statute of limitations period imposed under 28 U.S.C. § 2244(d) and is DISMISSED WITH PREJUDICE.