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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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 TERRY ALFRED COXE, Petitioner, 9 10 v. PATRICK GLEBE, 11 CASE NO. 16-5450 BHS ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITIONER’S MOTION TO AMEND Respondent. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 24), and 15 Petitioner Terry Alfred Coxe’s (“Coxe”) motion to file amended petition (Dkt. 22) and 16 objections to the R&R (Dkt. 25). 17 On November 18, 2016, Coxe moved to file an amended petition. Dkt. 22. On 18 March 23, 2017, Judge Creatura issued the R&R recommending that the Court dismiss 19 Coxe’s petition as time barred because Coxe failed to timely file his federal petition, he is 20 not entitled to equitable tolling, and he failed to meet his burden to show actual 21 innocence. Dkt. 24. On April 6, 2017, Coxe filed objections. Dkt. 25. 22 ORDER - 1 1 The district judge must determine de novo any part of the magistrate judge’s 2 disposition that has been properly objected to. The district judge may accept, reject, or 3 modify the recommended disposition; receive further evidence; or return the matter to the 4 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 5 In this case, Coxe requests that the Court consider his claim on the merits or, in the 6 alternative, issue a certificate of appealability. Dkt. 25 at 7. Regarding timeliness of 7 Coxe’s petition and equitable tolling, the Court agrees with Judge Creatura. The statute 8 of limitations expired on June 21, 2013, and Coxe did not file his federal petition until 9 June 2016. Moreover, Coxe fails to show that he was diligent or that any impediment 10 stood in his way to filing his federal petition. Therefore, the Court adopts the R&R on 11 these issues. 12 Regarding Coxe’s actual innocence claim, he objects to Judge Creatura’s 13 conclusion that a structural error does not support an actual innocence claim. Coxe cites 14 numerous authorities for the proposition that ineffective assistance of counsel constitutes 15 prejudice. Dkt. 25 at 2–5. Prejudice, however, does not establish actual innocence. As 16 Judge Creatura concluded, this exception requires a showing of new evidence in support 17 of factual innocence. Dkt. 24 at 11 (citing Schlup v. Delo, 513 U.S. 298, 314–15 (1995)). 18 In the absence of any new evidence, the Court adopts the R&R on this issue. 19 20 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. 21 22 ORDER - 2 1 Finally, Coxe’s motion to file an amended petition is without merit. Any existing 2 issue is time barred and, without any new evidence in support of actual innocence, 3 amending the petition is futile. 4 5 Therefore, the Court having considered the R&R, Coxe’s objections, and the remaining record, does hereby find and order as follows: 6 (1) The R&R is ADOPTED; 7 (2) Coxe’s motion to amend (Dkt. 22) is DENIED; 8 (3) Coxe’s petition is DENIED as time barred; 9 (4) A Certificate of Appealability is DENIED; and 10 (5) The Clerk shall enter JUDGMENT against Coxe and close this case. 11 Dated this 23rd day of May, 2017. A 12 13 BENJAMIN H. SETTLE United States District Judge 14 15 16 17 18 19 20 21 22 ORDER - 3

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