Opinion
3:22-cv-5621-LK-GJL
05-19-2023
JOSEPH SCOTT WRIGHT, Petitioner, v. JASON BENNETT, Respondent.
REPORT AND RECOMMENDATION
Grady J. Leupold, United States Magistrate Judge.
The District Court has referred this action to United States Magistrate Judge Grady J. Leupold. Petitioner Joseph Scott Wright, proceeding pro se, filed a federal habeas Petition pursuant to 28 U.S.C. § 2254, seeking relief from two 2019 state court convictions. Dkt. 6. The Court concludes the Petition is time-barred and recommends the Petition be dismissed with prejudice.
I. Background
On February 11, 2019, in the Pierce County Superior Court (“superior court”), Petitioner pleaded guilty to one count of burglary in the second degree under cause no. 18-1-01222-0. Dkt. 18-2 at 1-3. On that same date, Petitioner also pleaded guilty to one count each of criminal trespass in the first degree, identity theft in the second degree, and theft in the third degree under Pierce County Superior Court cause no. 19-1-00014-9. Dkt. 18-5 at 1-3. The superior court sentenced Petitioner to 33 months in confinement under cause no. 18-1-01222-0, to be served concurrently to a sentence of 17 months under cause no. 19-1-00014-9. Dkt. 18-3. The superior court also imposed 12 months of community custody under cause no. 19-1-00014-9. Dkt. 18-6 at 8-9. Petitioner did not challenge his convictions and sentences in state court, nor did he pursue any state collateral challenge to the two judgments. See Dkt. 6.
On August 19, 2022, Petitioner initiated this federal action challenging his custody under the 2019 judgments. Dkts. 1, 6. At that time, Petitioner had served his 2019 sentences and was no longer incarcerated for the 2019 convictions. See Dkts. 18-8, 18-9. However, Petitioner was still serving his 12 months of community custody imposed under cause no. 19-1-00014-9. Dkts. 6, 89.
After Petitioner was released from prison, he committed several new offenses in Pierce County in 2021. See Dkt. 18-14. After pleading guilty, Petitioner was sentenced in the superior court in November 2022. See id. The instant Petition does not challenge Petitioner's custody under any of these 2022 judgments.
After issuing several Orders directing Respondent to file an answer in this matter, see Dkts. 7, 11, 13, counsel from the Pierce County Prosecuting Attorney's Office filed an Answer to the Petition, Dkt. 18. Counsel for the Washington Attorney General's Office also filed an Answer.Dkt. 24. Both Answers assert the Petition was filed outside of the one-year statute of limitations. Dkts. 18, 24. They maintain the Petition is therefore time-barred and should be dismissed with prejudice. Dkts. 18, 24. Petitioner did not file a Reply/Traverse. See Dkt.
In the initial Order on service of the Petition, the Court directed the Clerk's Office to arrange for service upon both the Attorney General's Office and Respondent, who was believed to be the Pierce County Sheriff due to Petitioner's incarceration at the Pierce County Jail. See Dkts. 7, 11 However, during these federal habeas proceedings, Petitioner was transferred from the Pierce County Jail to Stafford Creek Corrections Center (“SCCC”) and, thus, Superintendent Jason Bennett at SCCC is now the proper Respondent. See Dkt. 22.
II. Discussion
Petitioner filed his Petition on August 19, 2022. See Dkts. 1, 6. However, Respondent argues Petitioner filed his Petition after the one-year statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., and further argues Petitioner is not entitled to any form of tolling that would excuse the late filing. Dkts. 18, 24. Petitioner has not filed a Reply/Traverse.
A. Statute of Limitations
Pursuant to the AEDPA, a one-year statute of limitations applies to federal habeas petitions. Section 2244(d)(1) states:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
If during the limitations period a “properly filed application for state post-conviction or other collateral review . . . is pending,” the one-year period is tolled. 28 U.S.C. § 2244(d)(2); see Pace v. DiGulielmo, 544 U.S. 408, 410 (2005).
In state court, a direct review generally concludes, and the judgment becomes final, either upon the expiration of the time for filing a petition for writ of certiorari with the United States Supreme Court, or when the Supreme Court rules on a timely filed petition for certiorari. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). However, where a petitioner does not seek direct review, a judgment becomes final on the date that the time for seeking direct review expired. Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012). In Washington state, a notice of appeal must be filed within 30 days of entry of the trial court's decision. Wash. RAP 5.2(a).
Here, the superior court entered judgments on the 2019 convictions on February 11, 2019. See Dkts. 18-3, 18-6. Petitioner did not file a direct appeal and, thus, the judgments became final on March 13, 2019, or 30 days after the time for filing an appeal expired. See Wash. RAP 5.2(a).
The AEDPA limitations period began running on March 14, 2019, the day after the judgments became final. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). The limitations period expired one year later, on March 14, 2020. Petitioner did not file his federal Petition until August 19, 2022, which is approximately two years and five months after the limitations period expired. Thus, unless Petitioner can show the statute of limitations was somehow tolled following final judgment in 2020, his federal Petition must be dismissed as time-barred.
Petitioner has failed to make such a showing. In his Petition, Petitioner contends his Petition is timely under 28 U.S.C. § 2244(d) because the Petition is based on newly discovered evidence, and cites to “State v. Blake (2021). Retroactive.” Dkt. 6 at 13. Although unclear, it appears that Petitioner is relying on § 2244(d)(1)(C) because State v. Blake, 197 Wn.2d 170 (Wa. 2021), a Washington State case decided on February 25, 2021, was new law applied retroactively and, therefore, was not previously available to him. Dkt. 6 at 13. However, at the time Petitioner initiated this action, State v. Blake was no longer “new law;” rather, 18 months passed from the time State v. Blake was decided in February 2021 to the date Petitioner filed the present Petition on August 19, 2022. Thus, Petitioner let more than one year lapse, without excuse, before filing his federal Petition. This 18-month gap alone renders the habeas Petition untimely and subject to dismissal as time-barred.
In State v. Blake, the Washington Supreme Court held that Washington State's strict liability drug possession statute criminalizes unintentional and unknowing possession of controlled substances and is unconstitutional. State v. Blake, 197 Wn.2d 170 (Wa. 2021).
As Petitioner did not file the Petition within one year of the date his state court judgments became final and he has not established any statutory tolling of the limitations period, the Court finds the Petition untimely. See 28 U.S.C. § 2244(d)(1).
B. Equitable Tolling
The AEDPA statute of limitations is subject to equitable tolling where the petitioner pursued his rights diligently and “some extraordinary circumstance stood in his way.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted). To receive equitable tolling, a petitioner at the very least must show the extraordinary circumstances “were the but-for and proximate cause of his untimeliness.” Ansaldo v. Knowles, 143 F. App'x. 839, 840 (9th Cir. 2005).
Here, Petitioner does not argue he is entitled to equitable tolling and fails to demonstrate any extraordinary circumstance prevented him from filing a timely habeas petition. See Dkt. 6. Therefore, Petitioner fails to show he is entitled to equitable tolling and the Petition is barred by the § 2244 limitations period.
To the extent the Court can construe Petitioner's assertion in the Petition that he only discovered State v. Blake in March 2022 and therefore is entitled to equitable tolling, see Dkt. 6 at 12, it is well established that “ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (9th Cir. 2000) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)).
III. Evidentiary Hearing
The decision to hold an evidentiary hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen, 563 U.S. at 181-82. A hearing is not required if the allegations would not entitle Petitioner to relief under §2254(d). Landrigan, 550 U.S. at 474. “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Further, the Supreme Court has held that, when reviewing a federal habeas petition under 28 U.S.C. § 2254, the federal court may not consider any facts beyond the factual record presented to the state post-conviction relief court -unless one of the limited exceptions of 28 U.S.C. § 2254(e)(2) applies. Shinn v. Ramirez, 142 S.Ct. 1718, 1734 (2022).
The Court finds it is not necessary to hold an evidentiary hearing in this case because, as discussed in this Report and Recommendation, the Petition may be resolved on the existing state court record.
IV. Certificate of Appealability
A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability (COA) from a district or circuit judge. See 28 U.S.C. § 2253(c). “A certificate of appealability may issue . . . only if the [petitioner] has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
No jurist of reason could disagree with this Court's evaluation of Petitioner's claims or would conclude the issues presented in the Petition should proceed further. Therefore, the Court concludes Petitioner is not entitled to a certificate of appealability with respect to this Petition.
V. Conclusion
The Petition is untimely as it was filed more than one year after the state court judgment became final. There are no extraordinary circumstances in this case requiring the application of equitable tolling principles. Therefore, the Petition is barred by the one-year limitations period imposed under 28 U.S.C. § 2244(d) and the Court recommends the Petition be DISMISSED with prejudice. No evidentiary hearing is required and a certificate of appealability should be denied.
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 June 2, 2023, as noted in the caption.