Perez v. Uttecht

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING HABEAS PETITION. Adopting in its entirety 30 Report and Recommendations; granting 20 Respondent's Motion to Dismiss, and Petitioner's Petition for Writ of Habeas Corpus, 1 is DISMISSED, filed by Jeffrey A Uttecht. Filed closed. Signed by Judge Rosanna Malouf Peterson. (SK, Case Administrator) **3 PAGES, PRINT ALL** (Hector Perez, Prisoner ID: 335403)

1
2
3
4
UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF WASHINGTON

6
7

HECTOR ENRIQUES PEREZ,
NO: 1:17-CV-3006-RMP
Petitioner,

8
9
10

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING HABEAS PETITION

v.
JEFFREY A. UTTECHT,
Respondent.

11
12
13

BEFORE THE COURT is a Report and Recommendation (“R&R”), ECF

14

No. 30, filed by Magistrate Judge John Rodgers on June 5, 2017, resolving a motion

15

to dismiss, ECF Nos. 20 and 26, filed by the Washington Attorney General on

16

behalf of Respondent Jeffrey Uttecht. Petitioner timely objected to the R&R. ECF

17

No. 32. Having reviewed the parties’ filings, the R&R, and the relevant law, the

18

Court is fully informed.

19

Mr. Perez argues that he is entitled to tolling of the statute of limitations

20

during the period in which his personal restraint petitions were pending. ECF No.

21

32 at 3-7. The Court notes that Magistrate Judge Rodgers determined that Mr.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
HABEAS PETITION ~ 1

1

Perez’s habeas petition would be time-barred even if the statute of limitations were

2

tolled throughout the period when all of the PRPs that Mr. Perez filed. ECF No. 30

3

at 5.

4

Mr. Perez further argues that he is entitled to an equitable exception to the

5

statute of limitations because he has made a credible showing of actual innocence.

6

ECF No. 32 at 20. Mr. Perez relies on a Washington state appellate decision, State

7

v. Wilson, 174 Wn. App. 328 (2013), discussing expert witness testimony about a

8

physical virginity examination of a minor who allegedly had been the victim of

9

sexual assault. See ECF Nos. 1 at 7-9; 32 at 20. Although not explicit about how

10

the expert witness opinion and evidence discussed in Wilson amounts to a showing

11

of actual innocence, Mr. Perez suggests that the absence of such evidence in his case

12

resulted in his conviction. Id.

13

The Court finds no persuasive showing of actual innocence in Mr. Perez’s

14

habeas petition or objection to support equitable tolling of the time-bar. See

15

McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (requiring that a petitioner who

16

seeks actual innocence relief from a statute of limitations to offer new, reliable

17

evidence and “show that it is more likely than not that no reasonable juror would

18

have convicted him in light of the new evidence”). Therefore, the Court adopts the

19

Report and Recommendation, ECF No. 30, in its entirety.

20
21
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
HABEAS PETITION ~ 2

1

Accordingly, IT IS HEREBY ORDERED that Respondent’s Motion to

2

Dismiss, ECF No. 20, is GRANTED, and Petitioner’s Petition for Writ of Habeas

3

Corpus, ECF No. 1, is DISMISSED.

4

IT IS SO ORDERED. The District Court Clerk is directed to enter this

5

Order and provide copies to Petitioner and counsel for Respondent and close the file.

6
7
8
9
10

The District Court Clerk is directed to enter this Order and provide copies to
counsel.
DATED September 28, 2017.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
HABEAS PETITION ~ 3