United States District Court, Western District of Washington, Tacoma
March 16, 2015
REX L. POPE, Petitioner,
JEFFREY A. UTTECHT, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITIONER’S MOTION TO EXPAND THE RECORD
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 19), Petitioner Rex Pope’s (“Pope”) objections to the R&R (Dkt. 20), and Pope’s motion to expand the record (Dkt. 21).
On January 9, 2015, Judge Strombom issued the R&R recommending that the Court deny claims 1 and 3 of Pope’s petition on the merits and dismiss count 2 as unexhausted and procedurally barred. Dkt. 19. On January 30, 2015, Pope filed objections and a motion to expand the record. Dkts. 20 & 22.
The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).
With regard to claims 1 and 3, the Court agrees with Judge Strombom that Pope has failed to meet the high burden of showing that the state court opinion was an unreasonable application of Supreme Court law. Pope provides numerous facts regarding the underlying trial and his Parkinson’s disease, but he fails to provide any argument that the state court unreasonably applied binding Supreme Court precedent that governs his claims for relief. Therefore, the Court denies Pope’s objections as to the merits of claims 1 and 3.
With regard to claim 2, Pope does not dispute that this claim is procedurally barred. Pope, however, does contend that the Court should excuse the procedural default because he is actually innocent. Dkt. 20 at 6-9. While Pope cites numerous cases on the issue of actual innocence, Pope fails to articulate any reason why he is actually innocent of these crimes other than his own opinion. This is insufficient evidence to establish actual innocence. Therefore, the Court denies the objections.
B. Motion to Expand
Pope moves to expand the record so that the Court will accept and consider evidence of Pope’s health conditions. Dkt. 21. Respondent contends that Pope has failed to articulate how the current record is insufficient. Dkt. 23. The Court agrees with the Respondent because the state court addressed and rejected Pope’s argument. Specifically, the state court concluded that “[n]othing in the medical records showed that Pope could not commit an assault during this attempted theft of a motor vehicle, and he has not identified any expert witness that would so testify.” Dkt. 16, Exh. 2. Currently, Pope again fails to identify any specific evidence or expert testimony that establishes the factual predicate that he could not have committed the charged assault. Therefore, the Court denies Pope’s motion.
The Court having considered the R&R, Pope’s objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) Pope’s motion to expand the record (Dkt. 21) is DENIED;
(3) Pope’s petition is DENIED as to claims 1 and 3, and DISMISSED as to claim 2;
(4) The Court DENIES a Certificate of Appealability; and
(5) This action is DISMISSED.