Flett v. Miller-Stout

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Report and Recommendations. The Report and Recommendation (ECF No. 5 ) is ADOPTED in its entirety and the Petition (ECF No. 1 ) is DISMISSED as time-barred and because Petitioner is not entitled t o the relief he seeks. The court further certifies that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. 2253(c);Fed. R. App. P. 22(b). The file is CLOSED. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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GARY ARLAN FLETT,
NO: 2:14-CV-0104 JPH

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Petitioner,
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING HABEAS PETITION

v.
MAGGIE MILLER-STOUT,
Respondent.

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BEFORE THE COURT is a Report and Recommendation by Magistrate

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Judge Hutton to dismiss Petitioner’s habeas petition as untimely and because

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Petitioner is not entitled to the relief he seeks (ECF No. 5). The Court has

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considered Petitioner’s timely Objections (ECF No. 6). Petitioner, a prisoner at

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the Airway Heights Corrections Center, is proceeding pro se and has paid the full

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$5.00 filing fee for this action; Respondent has not been served.

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Petitioner objects to the finding that his habeas petition is time-barred under
28 U.S.C. § 2244(d). In his petition, Petitioner challenges the imposition of

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING HABEAS PETITION -- 1

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conditions to his term of Community Placement by the Department of Corrections.

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The state appellate courts found his Personal Restraint Petition challenging the

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imposition of these conditions to be meritless. The Washington State Supreme

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Court issued its decision on December 21, 2012. Mr. Flett’s habeas corpus petition

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was not mailed to the Court until April 16, 2014 (ECF No. 1, Attachment #1).

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Petitioner asserts that “the time which the pertinent claim was pending

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should not be counted toward any period of limitation under 28 U.S.C. 2244(d).”

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It is not clear from the submissions when the federal limitations period actually

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commenced for Petitioner under 28 U.S.C. § 2244(d)(1), following his re-

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sentencing in 2001. Even liberally assuming that the Personal Restraint Petition

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“tolled” the running of a federal limitations period, the limitations period would

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have resumed on December 21, 2012, when the Washington State Supreme Court

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denied review. “[I]t is the decision of the state appellate court, rather than the

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ministerial act of entry of the mandate, that signals the conclusion of review.” See

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Wixom v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001). Because Petitioner

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submitted his federal habeas petition 481 days after a tolled limitations period

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presumably resumed, the present petition is clearly untimely under 28 U.S.C.

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§ 2244, absent equitable tolling.

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Petitioner asserts that the law-library was “shut down for renovations”

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between January 2, 2013, and early April 2013, which allegedly impeded his

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING HABEAS PETITION -- 2

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access to legal resources. This would account for, at most, 98 days if the library

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remained closed through April 10, 2013. Petitioner, however, indicates that this

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merely impeded his access to legal resources. He does not claim that he was

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denied access altogether, or that he was unable to work on his federal habeas

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petition in his cell.

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Petitioner also asserts that “a modified lock-down at the end of every

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month” impeded his efforts one day a month, requiring him to seek emergency

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access to the law library. Assuming without deciding that this excused an

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additional 16 days Petitioner has presented no facts showing that he diligently

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pursued his rights between December 12, 2012, and April 16, 2013. Holland v.

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Florida, 560 U.S. 631, 649 (2010). Therefore, Petitioner’s federal habeas petition

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is untimely under 28 U.S.C. § 2244(d).

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Petitioner’s second objection is to the finding that he is not entitled to the

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relief he seeks. Petitioner contends that he is entitled, under state law, to have his

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case remanded to the trial court to specify “the exact term of community placement

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and specify any special conditions of placement.” See State v. Ramos, 171

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Wash.2d 46, 48, 246 P.3d 811 (2011).

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Petitioner, however, admits that the trial court did specify his term of

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community placement as 24 months. He does not assert any “special conditions of

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placement” likely to be imposed. Petitioner is serving a 480 month sentence based

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING HABEAS PETITION -- 3

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on his 1996 convictions. He does not allege that he has been denied release from

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incarceration because the DOC “corrected” what it viewed as errors of law in

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Petitioner’s judgment and sentence. See Dress v. Washington State Dep’t of Corr.,

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168 Wash. App. 319, 279 P.3d 875 (2012).

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Petitioner objects to the Magistrate Judge referencing and relying on

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language contained in the Washington State Supreme Court decision denying his

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Personal Restraint Petition. He avers that the Washington State Supreme Court

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misrepresented the facts and made incorrect statements. To the extent Petitioner is

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asserting the DOC misread the judgment and sentence, the appellate courts of

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Washington State have disagreed. Alleged errors of state law do not warrant

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federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (it is not the

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province of a federal habeas court to reexamine state-court determinations on state-

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law questions).

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Therefore, for the reasons set forth above and by Magistrate Judge Hutton,

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IT IS ORDERED the Report and Recommendation (ECF No. 5) is ADOPTED in

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its entirety and the Petition (ECF No. 1) is DISMISSED as time-barred and

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because Petitioner is not entitled to the relief he seeks. See Rule 4, Rules

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Governing Section 2254 Cases in the United States District Courts.

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IT IS SO ORDERED. The District Court Executive is directed to enter this
Order, enter JUDGMENT for Defendant, forward a copy to Petitioner at his last

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING HABEAS PETITION -- 4

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known address, and CLOSE the file. The Court further certifies that pursuant to 28

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U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith,

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and there is no basis upon which to issue a certificate of appealability. 28 U.S.C.

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§ 2253(c); Fed. R. App. P. 22(b).

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DATED June 30, 2014.

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THOMAS O. RICE
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING HABEAS PETITION -- 5