Benoit v. Glebe

Filing 19

ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE, re 18 Objections to Report and Recommendation filed by Robert Benoit. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to plaintiff @ Aberdeen address . Modified on 7/8/2013 (JL).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROBERT BENOIT,
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No. C13-5208 RJB
Petitioner,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION DISMISSING
HABEAS CORPUS PETITION AS
UNTIMELY

PATRICK GLEBE,

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Respondent.
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This matter comes before the Court on the Report and Recommendation of the United

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States Magistrate Judge Karen L. Strombom. Dkt. 17. Petitioner has filed an objection to the

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Report and Recommendation asserting that he is entitled to equitable tolling of the statute of

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limitations based on actual innocence and attorney abandonment. Dkt. 18. The Court has

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considered the Report and Recommendation, the objection to the Report and Recommendation,

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and the remaining record.

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The Report and Recommendation should be adopted and the petition dismissed as time

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barred. As detailed in the Report and Recommendation, Petitioner failed to file his petition

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within one year of the date his state court judgment became final. Petitioner’s objection is a

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restatement of the argument in his habeas petition and as detailed in the Report and

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Recommendation fails to provide any basis for statutory or equitable tolling. Petitioner’s

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objections are without merit. There are no extraordinary circumstances here that prevented

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Petitioner from timely filing his petition on his own. Petitioner fails to demonstrate any
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deception, fraud, or error that prevented him from timely filing his federal habeas petition.
Petitioner has also failed to establish the actual innocence standard.
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

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Petitioner provides no evidence of any external circumstance beyond his direct control

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that prevented him from timely filing his federal habeas petition or other extraordinary

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circumstances that might qualify him for equitable tolling of the statute of limitations.

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The Magistrate Judge concluded that Petitioner is not entitled to a Certificate of

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Appealability. Dkt. 17 p. 10. After a review of the record, the court concurs with the
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recommendation of the Magistrate Judge. Petitioner has not met the requirements for obtaining a
Certificate of Appealability. A Certificate of Appealability should be denied.
The Court, having reviewed the petition for writ of habeas corpus, the response, the

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Report and Recommendation of Magistrate Judge Karen L. Strombom, objections to the Report

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and Recommendation, if any, and the remaining record, does hereby find and ORDER:

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(1)

The Court adopts the Report and Recommendation.

(2)

The petition for writ of habeas corpus (ECF No. 5) is DISMISSED WITH
PREJUDICE.

(3)

A Certificate of Appealability is DENIED.

(4)

The Clerk is directed to send copies of this Order to Petitioner, counsel for
Respondent and to the Hon. Karen L. Strombom.

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DATED this 8th day of July, 2013.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION - 2