Coxe v. Glebe

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 25 Objections to Report and Recommendation, filed by Terry Alfred Coxe. **3 PAGE(S), PRINT ALL**(Terry Coxe, Prisoner ID: 328971)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TERRY ALFRED COXE,
Petitioner,

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v.
PATRICK GLEBE,

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CASE NO. 16-5450 BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DENYING PETITIONER’S
MOTION TO AMEND

Respondent.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 24), and

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Petitioner Terry Alfred Coxe’s (“Coxe”) motion to file amended petition (Dkt. 22) and

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objections to the R&R (Dkt. 25).

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On November 18, 2016, Coxe moved to file an amended petition. Dkt. 22. On

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March 23, 2017, Judge Creatura issued the R&R recommending that the Court dismiss

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Coxe’s petition as time barred because Coxe failed to timely file his federal petition, he is

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not entitled to equitable tolling, and he failed to meet his burden to show actual

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innocence. Dkt. 24. On April 6, 2017, Coxe filed objections. Dkt. 25.

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ORDER - 1

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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In this case, Coxe requests that the Court consider his claim on the merits or, in the

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alternative, issue a certificate of appealability. Dkt. 25 at 7. Regarding timeliness of

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Coxe’s petition and equitable tolling, the Court agrees with Judge Creatura. The statute

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of limitations expired on June 21, 2013, and Coxe did not file his federal petition until

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June 2016. Moreover, Coxe fails to show that he was diligent or that any impediment

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stood in his way to filing his federal petition. Therefore, the Court adopts the R&R on

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these issues.

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Regarding Coxe’s actual innocence claim, he objects to Judge Creatura’s

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conclusion that a structural error does not support an actual innocence claim. Coxe cites

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numerous authorities for the proposition that ineffective assistance of counsel constitutes

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prejudice. Dkt. 25 at 2–5. Prejudice, however, does not establish actual innocence. As

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Judge Creatura concluded, this exception requires a showing of new evidence in support

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of factual innocence. Dkt. 24 at 11 (citing Schlup v. Delo, 513 U.S. 298, 314–15 (1995)).

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In the absence of any new evidence, the Court adopts the R&R on this issue.

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Regarding a certificate of appealability, the Court agrees with Judge Creatura that
Coxe is not entitled to a certificate of appealability with respect to this petition.

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ORDER - 2

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Finally, Coxe’s motion to file an amended petition is without merit. Any existing

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issue is time barred and, without any new evidence in support of actual innocence,

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amending the petition is futile.

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Therefore, the Court having considered the R&R, Coxe’s objections, and the
remaining record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Coxe’s motion to amend (Dkt. 22) is DENIED;

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(3)

Coxe’s petition is DENIED as time barred;

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(4)

A Certificate of Appealability is DENIED; and

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(5)

The Clerk shall enter JUDGMENT against Coxe and close this case.

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Dated this 23rd day of May, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3