Coxe v. Glebe
Filing
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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
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