Bertram v. Cotton

Filing 13

ORDER DISMISSING PETITION - 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). Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) **PRINT ALL** (Jasen Bertram, Prisoner ID: 365853)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Feb 07, 2018

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JASEN BERTRAM,
NO: 2:17-CV-352-RMP
Petitioner,

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ORDER DISMISSING PETITION
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v.
JENNA COTTON,
Respondent.

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By Order filed December 28, 2017, the Court directed Mr. Bertram to show

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cause why his habeas petition should not be dismissed as time-barred under 28

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U.S.C. § 2244(d). ECF No. 10. Petitioner, a prisoner at the Stafford Creek

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Corrections Center, is proceeding pro se and in forma pauperis. Respondent has

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not been served. Mr. Bertram has filed a timely response, ECF No. 12.

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Mr. Bertram concedes that his deadline to file a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 was August 30, 2017. ECF No. 12 at 2. The

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Washington State Supreme Court denied direct appellate review on June 1, 2016,

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ORDER DISMISSING PETITION -- 1

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and Petitioner did not seek certiorari in the U.S. Supreme Court. ECF No. 11 at 2,

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4.

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To excuse his untimely petition, Mr. Bertram presents three arguments: (1)

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his court appointed appellate counsel did not present him with a copy of the

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Washington Supreme Court’s order denying him review on direct appeal until

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August 30, 2016; (2) he diligently sought state court records to support his federal

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habeas claim, which he did not receive until February 23, 2017; and (3) his basis

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for habeas relief qualifies for the “miscarriage of justice” exception to the statute of

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limitations. ECF No. 12 at 2, 4-5, 6.

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As to his first argument, Mr. Bertram admits that he received the mandate

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issued by the Washington Supreme Court on July 8, 2016, ECF Nos. 11 at 25;12 at

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3. Thus, he had notice of the finality of his state court proceedings prior to August

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30, 2016.

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Mr. Bertram makes no assertion that he would have sought certiorari in the

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U.S. Supreme Court if he had received the notice from his court appointed attorney

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sooner. The time for doing so expired on August 30, 2016. See Summers v.

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Schriro, 481 F.3d 710, 717 (9th Cir. 2007). The Court declines Mr. Bertram’s

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invitation to accept the delayed receipt of the Washington Supreme Court’s order,

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whether at the fault of the state court or his appointed attorney, as an equitable

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basis to toll the running of the federal limitations period.

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ORDER DISMISSING PETITION -- 2

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Furthermore, there is no factual or legal basis for Mr. Bertram’s contention

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that he had until November 28, 2017, to file his habeas petition, ECF No. 12 at 3.

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Therefore, the federal limitations period, having commenced on August 30, 2016,

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and expired on August 30, 2017, renders Mr. Bertram’s federal habeas petition,

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received by this Court on October 10, 2017, untimely under 28 U.S.C. § 2244(d).

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Next, Mr. Bertram argues that he was diligent in his efforts to obtain pre-

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trial records to support his habeas claim. ECF No. 12 at 3. The onset of the

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federal limitations period may be statutorily delayed until “the date on which the

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factual predicate of the claim or claims presented could have been discovered

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through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

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The factual basis for Mr. Bertram’s claim, however, is an allegedly

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erroneous jury instruction. Petitioner was aware of this fact when the instruction

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was given and his request for an alternative instruction was denied. Petitioner has

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presented no factual or legal support for a proposition that the possession of

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evidentiary support for a claim delays or tolls the running of the federal limitations

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period. Therefore, Petitioner has failed to show a statutory basis to delay the

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running of the federal limitations period under 28 U.S.C. § 2244(d)(1).

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Petitioner admits that he was in possession of all state court records needed

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to prepare his federal habeas petition in February 2017. He presents no facts

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showing that any extraordinary circumstance prevented from timely filing his

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petition in the subsequent six months. See Holland v. Florida, 560 U.S. 631, 649
ORDER DISMISSING PETITION -- 3

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(2010). Petitioner’s assertion regarding the delay in receiving state court records

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will not toll the running of the federal limitations period.

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Third and last, Mr. Bertram argues for application of the “miscarriage of

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justice” exception to the federal limitations period under McQuiggin v. Perkins,

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569 U.S. 383 (2013). According to McQuiggin, a federal court may entertain an

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untimely first habeas petition that raises a convincing claim of actual innocence.

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Id. at 398.

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To make a proper showing of actual innocence, a petitioner must establish

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his factual innocence of the crime and not mere legal insufficiency. See Bousley v.

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United States, 523 U.S. 614, 623–24 (1998). A credible claim of actual innocence

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“requires [a] petitioner to support his allegation of constitutional error with new

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reliable evidence . . . .” Schlup v. Delo, 513 U.S. 298, 324 (1995). Examples of

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evidence that may establish factual innocence include credible declarations of guilt

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by another, see Sawyer v. Whitley, 505 U.S. 333, 340 (1992), trustworthy

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eyewitness accounts, and exculpatory scientific evidence, see Schlup, 513 U.S. at

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324.

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Here, Mr. Bertram has presented no new reliable evidence. Rather, his

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claim of innocence is conflated into his single habeas claim that an erroneous

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instruction was given to the jury. Rather than making a case for factual innocence,

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Mr. Bertram makes the legal argument that the jury would have acquitted him, or

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ORDER DISMISSING PETITION -- 4

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found him guilty of a lesser offense, if the erroneous “Aggressor Instruction” had

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not been given. ECF No. 12 at 7

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Mr. Bertram has not shown that he falls within the actual innocence

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exception. Therefore, the federal habeas petition received on October 10, 2017, is

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untimely.

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Consequently, IT IS ORDERED that the petition, ECF No. 11, is
DISMISSED with prejudice as it is precluded under 28 U.S.C. § 2244(d).

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IT IS SO ORDERED. The Clerk of Court is directed to enter this Order,

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enter judgment, forward a copy to Petitioner at his last known address and close

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the file. The Court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), an

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appeal from this decision could not be taken in good faith, and there is no basis

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upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.

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R.App. P. 22(b).

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DATED February 7, 2018.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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ORDER DISMISSING PETITION -- 5