Richey v. Obenland

Filing 68

ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 59 Objections to Report and Recommendation filed by Thomas WilliamSinclair Richey. (TG).

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 THOMAS W. S. RICHEY, 8 9 10 CASE NO. C13-5231 BHS Petitioner, v. MIKE OBENLAND, 11 Respondent. 12 ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION, DISMISSING PETITION AS TIME-BARRED, AND DENYING A CERTIFICATE OF APPEALABILITY 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 56), and 15 Petitioner Thomas W.S. Richey’s (“Richey”) objections to the R&R (Dkt. 59). 16 I. BACKGROUND 17 Richey was in custody under a state court judgment and sentence that was entered 18 in 1987 for his convictions, by plea, on one count of first-degree felony murder and one 19 count of attempted first-degree murder. Dkt. 41, Exh. 1. On August 23, 2010, the state 20 trial court entered an order correcting the judgment and sentence. Id., Exh. 3. Richey 21 appealed the new judgment. Id., Exh. 5. The Washington Court of Appeals dismissed 22 ORDER - 1 1 the appeal holding the ministerial correction was unappealable as a matter of state law. 2 Id., Exh. 7. The Washington Supreme Court denied review, Id., Exh. 11, and, on August 3 8, 2011, denied Richey’s motion to modify, Id., Exh. 13. 4 On August 18, 2011, Richey filed a petition for writ of habeas corpus directly in 5 the Washington Supreme Court. Id., Exh. 14. On April 12, 2012, the court dismissed the 6 petition as time-barred. Id., Exh. 20. 7 On March 27, 2013, Richey filed the instant petition in this Court. Dkt. 1. On 8 November 12, 2014, the Ninth Circuit Court of Appeals concluded that the corrected 9 judgment was a new, intervening judgment. Dkt. 34. On December 9, 2015, the Court 10 declined to adopt an R&R recommending that the Court dismiss the petition as time11 barred. Dkt. 50. That R&R concluded that Richey was effectively challenging his 12 original judgment and, therefore, his petition was filed sixteen years after the relevant 13 deadline. Dkt. 48 at 17–18. The Court rereferred the matter for further consideration. 14 Dkt. 50. 15 On August 25, 2016, the instant R&R issued recommending that the Court deny 16 the petition on the merits. Dkt. 56. On September 23, 2016, Richey filed objections. 17 Dkt. 59. On November 16, 2016, the Court requested additional briefing on the 18 timeliness of Richey’s petition based on the new, intervening judgment and prejudice. 19 Dkt. 61. On January 6, 2017, the state filed a supplemental response. Dkt. 64. On 20 January 9, 2017, Richey filed a supplemental response. Dkt. 65. On January 17, 2017, 21 both parties filed supplemental replies. Dkts. 66, 67. 22 ORDER - 2 1 II. DISCUSSION 2 A. Statutory Tolling 3 The federal Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 4 establishes a one-year statute of limitations for filing a federal habeas corpus petition. 28 5 U.S.C. § 2244(d)(1). That limitations period is tolled, however, while “a properly filed 6 application for State post-conviction or other collateral review with respect to the 7 pertinent judgment or claim is pending.” § 2244(d)(2). “When a postconviction petition 8 is untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” 9 Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). 10 In this case, Richey’s State post-conviction petitions were not properly filed. Even 11 if Richey’s direct appeals of his new judgment were properly filed 1, the Washington 12 Supreme Court denied Richey’s motion to modify the ruling on his direct appeal on 13 August 8, 2011. Richey had 90 days to file a petition for a writ of certiorari with the 14 United States Supreme Court. Clay v. United States, 537 U.S. 522, 524 (2003). Richey 15 did not do so, and the judgment became final on November 7, 2011. Richey then had one 16 17 18 19 20 21 22 1 The State argues that Richey’s judgment became final the day it was corrected because the state courts concluded that his direct appeals were time-barred. Dkt. 64 at 2–4. The Court concludes that this position is an extension of the authorities cited by the State because none of those authorities stand for this direct rule of law. There is authority for the proposition “that a state prisoner’s failure to comply with the state’s procedural requirements in presenting his claims is barred from obtaining a writ of habeas corpus in federal court by the adequate and independent state ground doctrine.” Wentzell v. Neven, 2:10-CV-01024-RLH, 2015 WL 1344786, at *4 (D. Nev. Mar. 23, 2015), certificate of appealability denied (June 29, 2015) (citing Coleman v. Thompson, 501 U.S. 722, 73132 (1991)). The State, however, has failed to raise the affirmative defense of the adequate and independent state ground doctrine. Id. ORDER - 3 1 year to file this petition for federal habeas relief. 28 U.S.C. § 2244(d)(1). Therefore, the 2 time for filing this petition expired on November 7, 2012. 3 On March 27, 2013, Richey filed the instant petition in this Court. Dkt. 1. Richey 4 argues that the one-year statute of limitations was tolled by his personal restraint petitions 5 in state court. Dkt. 65 at 3–6. All of those petitions, however, were denied as time6 barred. See Dkt. 48 at 5–13. Under binding precedent, time-barred state petitions do not 7 toll ADEPA’s limitations period. Pace, 544 U.S. at 414. While the Court recognizes 8 Richey’s arguments that the state court decisions are at odds with the Ninth Circuit 9 decision as to the substantive issue of the controlling judgment, the Court concludes that 10 this is a distinction without a difference because “[w]hen a postconviction petition is 11 untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” 12 Id. Therefore, the Court concludes that Richey’s petition is untimely and that he is not 13 entitled to statutory tolling under § 2244(d)(2). 14 B. Equitable Tolling 15 “Generally, a litigant seeking equitable tolling bears the burden of establishing two 16 elements: (1) that he has been pursuing his rights diligently, and (2) that some 17 extraordinary circumstance stood in his way.” Id. at 418. 18 In this case, Richey has failed to show that he is entitled to equitable tolling. The 19 Court agrees with Richey that “[t]here can be little denying that [he] has been diligent in 20 pursuing his rights . . . .” Dkt. 65 at 7. Richey, however, has failed to show that there 21 was any extraordinary circumstance that stood in his way to prevent him from filing a 22 protective federal petition before the ADEPA limitations period expired on November 7, ORDER - 4 1 2012. Pace was binding precedent at that time and explicitly stated that a “prisoner 2 seeking state postconviction relief might avoid this predicament, however, by filing a 3 ‘protective’ petition in federal court and asking the federal court to stay and abey the 4 federal habeas proceedings until state remedies are exhausted.” Pace, 544 U.S. at 416. 5 Moreover, a “petitioner’s reasonable confusion about whether a state filing would be 6 timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Id. The 7 state Supreme Court explicitly informed Richey that both his direct appeal and his 8 collateral attack were time-barred. Dkt. 41, Exh. 13, 20. Under these facts, Richey fails 9 to show reasonable confusion when his claim was fully exhausted and he was informed 10 that any remedy was time-barred in state court. This is almost the opposite of an 11 extraordinary circumstance preventing a federal filing in that the highest state court held 12 that Richey was precluded from any further form of relief in state court. The only 13 reasonable avenue left was to challenge the adverse state decision in federal court. 14 Instead, Richey chose to repeatedly seek further relief in state court to his peril, and the 15 Court is unable to conclude that this choice amounted to any type of preventative 16 obstacle, much less an extraordinary obstacle. 17 Richey also argues that he was affirmatively misled by the state courts. The Ninth 18 Circuit has held that, “where a petitioner was affirmatively misled to believe that her 19 limitations period was being tolled under the statute, this inaccuracy could entitle her to 20 equitable tolling.” Rudin v. Myles, 781 F.3d 1043, 1058 (9th Cir. 2015), cert. denied sub 21 nom. Gentry v. Rudin, 136 S. Ct. 1157 (2016) (citing Sossa v. Diaz, 729 F.3d 1225, 22 1232–35 (9th Cir. 2013)). In Sossa, a federal magistrate judge granted the petitioner an ORDER - 5 1 extension of time to file an amended petition. Id. at 1228. Although petitioner filed an 2 amended petition, the magistrate judge concluded that the amendments did not relate 3 back to the original petition and, therefore, the amended petition was time-barred by 18 4 days even though the original petition was timely. Id. The Ninth Circuit reversed, 5 concluding that the petitioner was entitled to equitable tolling because the magistrate 6 judge affirmatively misled the petitioner by granting the motion for an extension of time. 7 Id. at 1232–33 (“No litigant, pro se or otherwise, asks for an extension of time to file an 8 untimely petition.”). 9 In Rudin, the lower state court granted the petitioner relief on the merits, but the 10 state Supreme Court reversed that judgment. Rudin, 781 at 1053. The federal district 11 court dismissed the federal petition as time-barred concluding that the petitioner was not 12 entitled to statutory tolling because, under Pace, an untimely petition is not a properly 13 filed petition. Id. The Ninth Circuit reversed, concluding that the petitioner was 14 affirmatively mislead by the lower state court granting the petition on the merits and the 15 first time the petitioner became aware that her state petition was time-barred was when 16 the state Supreme Court issued its opinion. Id. at 1058–59. The court also concluded 17 that the petitioner did not have an adverse state decision to challenge until the higher 18 court reversed the lower court and denied the state petition. Id. 19 In this case, Richey fails to show that he was affirmatively misled. Richey 20 contends that, “[g]iven the state courts’ consideration of the merits of his claims [in his 21 habeas petitions], [he] had no reason to understand that the federal statute of limitations 22 was continuing to run.” Dkt. 65 at 8. This argument is undermined by the fact that ORDER - 6 1 Richey had actual knowledge that his direct appeal and his post-conviction petitions were 2 time-barred. For example, on April 12, 2012, the Washington Supreme Court 3 commissioner stated that “Richey fails to assert any valid basis for avoiding the time bar 4 on collateral attack or for reinstating his appeal.” Dkt. 41, Exh. 20. Richey moved to 5 modify that ruling, and, on June 5, 2012, the Washington Supreme Court denied the 6 motion. Id., Exh. 22. Giving Richey the benefit of the doubt that his direct appeals were 7 timely, he had almost four months from the date of the ruling that his state petition was 8 time-barred to file a federal habeas petition before the deadline of November 7, 2012. 9 There was no extraordinary circumstance preventing the filing of a federal petition during 10 this period of time. Accordingly, the Court concludes that Richey has failed to show that 11 he is entitled to equitable tolling. 12 C. Certificate of Appealability 13 In order to receive a certificate of appealability, a petitioner must show that his 14 claims are “debatable amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 15 336 (2003). 16 In this case, the Court concludes that Richey’s claims are not debatable amongst 17 jurists of reason. While he definitely presents strong arguments for the extension of 18 current law and/or exceptions to current law, his claims fail under binding precedent. 19 Accordingly, the Court denies Richey a certificate of appealability. 20 21 III. ORDER The Court having considered the R&R, Richey’s objections, and the remaining 22 record, does hereby find and order as follows: ORDER - 7 1 (1) The Court declines to ADOPT the R&R on the merits; 2 (2) The Court DISMISSES Richey’s petition as time-barred; 3 (3) The Court DENIES Richey a Certificate of Appealability; and 4 (4) The Clerk shall enter JUDGMENT and close this case. 5 Dated this 18th day of March, 2017. A 6 7 BENJAMIN H. SETTLE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 8

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