Pease v. Veach
Report and Recommendation
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KEVIN W. PEASE,
FINAL REPORT AND
MOTION TO DISMISS
R.V. VEACH, WARDEN, HUDSON
Respondent R.V. Veach moves to dismiss Kevin W. Pease’s Petition for Writ of Habeas
Corpus on the ground that his claims are barred by the one-year statute of limitations pursuant to
the Antiterrorist and Effective Death Penalty Act of 1996 (“AEDPA”). 1
This report and
recommendation addresses only the Respondent’s Motion to Dismiss.2 Pease filed an Opposition
to the Respondent’s Motion to Dismiss.3 The Respondent submitted a Reply.4 For the reasons
discussed below, I conclude that the Respondent’s Motion to Dismiss should be granted.
A. State Court Proceedings
In February 2000, Kevin Pease was convicted of two counts of second-degree murder for
killing J.H., as well as second-degree assault and first-degree robbery of Franklin Dayton.5 He
The AEDPA states (in relevant part): “A 1-year statute 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 date on which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review” 28 U.S.C. § 2244(d)(1)(A).
Docket No. 25.
Docket No. 39.
Docket No. 43.
Exhibits A, B, C to Docket No. 25.
was sentenced to serve a composite term of 70 years, with 15 years suspended and 10 years of
probation.6 Pease’s sentence was silent on the issue of restitution.7
Pease filed a timely appeal with the Alaska Court of Appeals on March 9, 2000.8 While
Pease’s appeal was pending, the State of Alaska filed a “notice of restitution” in state Superior
Court on March 10, 2000.9 The trial court judge orally ordered Pease to make restitution on May
However, the restitution ordered was $400 more than the evidence at trial
Pease amended his appeal to include the claim that the trial judge erred in
calculating the amount of restitution.12
The Alaska Court of Appeals affirmed Pease’s
underlying convictions and sentence, and remanded the restitution issue to the trial court. 13
Pease’s appeal to the Alaska Supreme Court was denied on November 22, 2002.14 Pease did not
seek a writ of certiorari in the United States Supreme Court.
On remand, a separate “restitution judgment” was entered on March 19, 2003.15 This
judgment was entered pursuant to Alaska Criminal Rule 32.6(a), (c)(2), (d), an Alaska statute
which treats restitution as a separate matter from the underlying criminal sentence.16
B. State Post-Conviction Relief Proceedings
Pease filed a timely application for post-conviction relief challenging his conviction and
sentence on March 17, 2003.17 The trial judge granted the application but was reversed by the
Exhibit C to Docket No. 25.
Exhibit C to Docket No. 25.
Pease v. State, 54 P.3d 316 (Alaska App. 2002).
Exhibit D to Docket No. 25.
Pease, 54 P.3d at 331.
Exhibits F, G to Docket No. 25.
Pease v. State, 54 P.3d at 332.
Exhibit I to Docket No. 25.
Exhibit J to Docket No. 25.
Alaska Criminal Rule 32.6(a), (c)(2), (d).
Exhibit K to Docket No. 25.
Alaska Court of Appeals on July 27, 2007.18 Pease filed a timely petition for hearing in the
Alaska Supreme Court, which was originally granted, then dismissed as “improvidently
granted.” on August 12, 2009.19
C. Federal Court Proceedings
A petition for Writ of Habeas Corpus was filed in the U.S. District Court for the District
of Alaska on August 9, 2010.20 The State of Alaska filed a Motion to Dismiss the Habeas
Petition on March 25, 2011.21 A Response in Opposition to the Motion to Dismiss was filed on
May 19, 2011.22 A Reply to the Response in Opposition to the Motion to Dismiss was filed on
May 31, 2011.23
The Petition for Writ of Habeas Corpus asserted that during Pease’s trial, the jury
conducted an unauthorized experiment to test the claims of a witness, violating his due process
rights under the Fourteenth Amendment.24 The State of Alaska’s Motion to Dismiss argues the
Petition must be dismissed because it was filed more than one year after Pease’s judgment
became final.25 The State asserts that Pease’s conviction became final when the State Supreme
Court affirmed his underlying conviction and sentence, regardless of the trial court’s subsequent
decision on the issue of restitution.26 The Opposition to the Motion to Dismiss argues that
Pease’s judgment did not become final until the trial court entered the restitution judgment.27
The Reply in Response to Opposition to Motion to Dismiss contends that because Pease was
Exhibit L to Docket No. 25.
Exhibit M to Docket No. 25.
Docket No. 1.
Docket No. 25.
Docket No. 39.
Docket No. 43.
Docket No. 1.
Docket No. 25.
Docket No. 25.
Docket No. 39.
incarcerated solely due to the 70 year sentence, not the restitution order, once that sentence was
affirmed the judgment became final for the purposes of the AEDPA.28
The one-year statute of limitations began on the “date on which the judgment becomes
final by the conclusion of direct review or the expiration of the time for seeking such review.” 29
Both parties agree that the statute was tolled pursuant to 28 U.S.C. § 2244(d)(2) for the duration
of Petitioner’s effort to seek post-conviction relief.30
Veach alleges that the one-year statute of limitations period began on February 24, 2003.
Veach contends that Pease’s conviction became final on November 23, 2002, when his appeal
challenging the underlying conviction and sentence was denied by the Alaska Supreme Court.
Docket No. 25 at 3, 4. The one-year limitations period would start once the time for seeking a
writ of certiorari in the United States Supreme Court expired 90 days later, on February 24,
2003. Supreme Court Rules 13.1, 39; See also Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.
1999). Under this analysis, the statute of limitations would expire (taking into account statutory
tolling) on July 24, 2010.
Pease alleges that the one-year statute of limitations period did not begin until March 10,
2003, and thus is not time barred. Petitioner alleges that his conviction did not become final
until after the restitution judgment was entered on March 10, 2003, and time was tolled seven
days later when he filed for post-conviction relief in state court. Docket No. 39 at 2; See Nino v.
Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999).
The parties agree that tolling ended on
August 13, 2009, when the Alaska Supreme Court denied Petitioner’s request for a hearing.
Docket No. 43.
28 U.S.C. § 2244(d)(1)(A).
28 U.S.C. § 2244(d)(2) states: “The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.”
Docket No. 39 at 2. Petitioner then filed the instant petition 353 days later, and thus contends
that it is not time-barred, five days short of the statute of limitations. Docket No. 39 at 3.
A. Finality of Judgment
The outcome of this Motion to Dismiss depends on when Petitioner’s judgment became
final. Respondent argues that “[t]he sentence is the judgment.”31
Petitioner instead argues that
judgment is not final until “it terminates the litigation…on the merits and leaves nothing to be
done but enforce by execution what has been determined.’”32
Petitioner argues that because the
Alaska Court of Appeals remanded the issue of restitution back to the trial court, and restitution
was not imposed until March 10, 2003, the judgment was not final until that date.33
B. Petitioner’s Claim For Habeas Relief
Petitioner’s present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was
not timely filed. The instant petition is file-stamped August 9, 2010. Petitioner’s conviction
became final when his appeal was denied by the Alaska Supreme Court on November 23, 2002,
and the one-year limitations period began when the time for seeking a writ of certiorari in the
United States Supreme Court expired 90 days later, on February 24, 2003. Assuming the
limitations period was tolled on March 18, 2003, 21 days elapsed. The tolling ended on August
13, 2009, when the Alaska Supreme Court denied Petitioner’s request for a hearing. The instant
petition was filed on August 2, 2010, 353 days later. When the two periods are combined, the
instant petition was filed 374 days after the limitations period began, nine days after the statute
of limitations expired.
Burton v. Stewart, 549 U.S. 147, 156-157 (2007) (per curiam).
Berman v. United States, 302 U.S. 211, 212 (1937).
Docket No. 39 at 2.
I am following the Eleventh Circuit’s reasoning in Ferreira v. Secretary, Dept. of
Corrections34 and finding that for the purposes of 28 U.S.C. § 2244(d), the “judgment” which
triggers the running of the statute of limitations is the one which has caused the inmate to be held
In Ferreira, the court held that:
“Burton [v. Stewart] makes clear that the writ and AEDPA, including its
limitations provisions, are specifically focused on the judgment which
holds the petitioner in confinement. What this Court has previously called
the judgment of conviction and the sentencing judgment together form the
judgment that imprisons the petitioner. Therefore, AEDPA's statute of
limitations begins to run from the date both the conviction and the
sentence the petitioner is serving at the time he files his application
become final because judgment is based on both the conviction and the
The interpretation of the term “judgment” in Ferreira is consistent with the rules of
statutory interpretation. It is well established a court should always start with the plain language
of the statute.37
However, “[w]ords with a fixed legal or judicially settled meaning, where the
context so requires, must be presumed to have been used in that sense.”38 In Ferreria, the court
concluded that the term “judgment” actually consisted of the “judgment of conviction” and the
This indicates that “judgment”, in the context of habeas cases, carries
at some meaning beyond the dictionary definition of “the ability to judge, make a decision, or
form an opinion objectively, authoritatively, and wisely, especially in matters affecting action.”40
494 F.3d 1286 (11th Cir. 2007)
There did not appear to be any cases in the Ninth Circuit answering the question here regarding which judgment
triggers the statute of limitations under the AEDPA, including Harris v. Carter, 515 F.3d 1051 (9th Cir., 2008).
494 F.3d at 1293 (emphasis in original).
DeGeorge v. United States Dist. Court for Cent. Dist. of California, 219 F.3d 930, 937 (9th Cir.2000) (“The
purpose of statutory construction is to discern the intent of Congress in enacting a particular statute. The first step
in ascertaining congressional intent is to look to the plain language of the statute.”).
Cable Arizona Corp. v. Coxcom, Inc., 261 F.3d 871, 874 (9th Cir. 2001).
Ferreria, 494 F.3d at 1293.
Random House Dictionary.
In enacting the AEDPA, Congress intended its “purpose to further the principles of
comity, finality, and federalism.”41 The Ninth Circuit has specifically referenced the importance
of comity, noting that “[t]olling AEDPA's statute of limitations until the state has fully
completed its review reinforces comity and respect between our respective judicial systems.”42
However, “[i]n furtherance of Congress's desire to accelerate the federal habeas process, AEDPA
imposed a one-year statute of limitations on the filing of a federal habeas corpus petition by a
state prisoner.”43 The balance between comity and a desire for speedy resolution of habeas
matters should guide us to hold that the relevant conviction for the purposes of triggering the
statute of limitations under § 2244(d)(2) is the conviction which holds the prisoner in custody. It
makes little sense to delay the disposition of a habeas petition while the state court considers
matters which have no bearing on Petitioner’s conviction or incarceration.
The United States Supreme Court recently affirmed that this is the primary logic of the
AEDPA. The Court noted that “[i]f, for example, a litigant obtains relief on state-law grounds,
there may be no need for federal habeas. The same dynamic may be present to a degree with
respect to motions that do not challenge the lawfulness of a judgment. If a defendant receives
relief in state court, the need for federal habeas review may be narrowed or even obviated.”44
A cursory review of case law in other circuits finds no circuit court has reached a
contrary conclusion. District courts within the Ninth Circuit and several other circuit courts have
cited Ferreria with approval.45
The lack of any contrary citations is strong evidence that
Ferreria was correctly decided.
Williams v. Taylor, 529 U.S. 420, 436 (2000).
Nino v. Galaza, 183 F.3d 1003, 1007 (9th Cir. 1999)
Nino, 183 F.3d at 1004-05 (internal quotation marks and citation omitted).
Wall v. Kholi, 563 U.S. ___, 131 S.Ct. 1278 (2011).
See Scott v. Hubert, 635 F.3d 659 (5th Cir. 2011); Reber v. Steele, 570 F.3d 1206 (10th Cir.); Chavez v. Warden,
2008 WL 4531833 (C.D.Cal. 2008); Johnson v. Sisto, 2010 WL 1006444 (E.D.Cal. 2010); Hess v. Ryan, 651
When Petitioner filed the instant petition, he was in custody pursuant to the 70 year
composite sentence imposed by the trial court, which was affirmed by the Alaska Court of
Appeals and denied appellate review by the Alaska Supreme Court on November 22, 2002. He
was not imprisoned due to the restitution order of March 10, 2003. Once the time for seeking a
writ of certiorari to the United States Supreme Court expired on February 23, 2003, the statute of
limitations began to run. The limitations period was tolled from March 17, 2003 to August 13,
2009. The period expired on July 24, 2010, and the instant petition was filed nine days later.
Thus, the petition was filed after the statute of limitations had expired.
For the foregoing reasons, Respondent’s Motion to Dismiss should be GRANTED.
IT IS SO RECOMMENDED.
DATED this 23rd day of August, 2011 at Fairbanks, Alaska.
__s/SCOTT A. ORAVEC____
SCOTT A. ORAVEC
United States Magistrate Judge
Pursuant to Local Magistrate Rule 6(a), a party seeking to object to this proposed finding
and recommendation shall file written objections with the Clerk of Court no later than NOON on
Friday, September 2, 2011. The failure to object to a magistrate judge's findings of fact may be
treated as a procedural default and waiver of the right to contest those findings on appeal.
McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The
Ninth Circuit concludes that a district court is not required to consider evidence introduced for
the first time in a party's objection to a magistrate judge's recommendation. United States v.
Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages
F.Supp.2d 1004 (D.Ariz. 2009); Roberts v. Uttecht, 2010 WL 3516909 (E.D.Wash. 2010); Razo v. Thomas, 700
F.Supp.2d 1252 (D.Hawai’i 2010).
in length, and shall not merely reargue positions presented in motion papers. Rather, objections
and responses shall specifically designate the findings or recommendations objected to, the basis
of the objection, and the points and authorities in support. Response(s) to the objections shall be
filed on or before NOON on Friday, September 9, 2011. The parties shall otherwise comply
with provisions of Local Magistrate Rule 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant
to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See
Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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