United States District Court, W.D. Washington, Seattle
JESS R. SMITH, Petitioner,
MICHAEL OBENLAND, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
BARBARA J. ROTHSTEIN, District Judge.
Petitioner Jess R. Smith, a state prisoner who is currently incarcerated at the Stafford Creek Corrections Center in Aberdeen, Washington, filed a petition for writ of habeas corpus seeking relief from his 2000 King County Superior Court conviction by jury verdict for first degree felony murder under 28 U.S.C. § 2254. Petitioner raises seven grounds for relief: 1) prosecutorial vindictiveness, 2) failure to provide a self-defense instruction, 3) violation of speedy trial rights, 4) denial of state habeas rights, 5) defective charging document, 6) Brady  violation, and 7) violation of due process.
The petition was referred to Magistrate Judge Brian A. Tsuchida for resolution pursuant to Federal Rule of Criminal Procedure 59(b). Dkt. No. 23. Magistrate Judge Tsuchida determined that the petition was barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d) and, thus, recommended that it be denied. Dkt. No. 23. Petitioner timely filed objections to the Report and Recommendation stating that he "was never provided adequate notice and opportunity to present reasons why his Habeas petition is timely before this court." Dkt. No. 24. By Minute Order dated October 23, 2014, this Court remanded the matter to Magistrate Judge Tsuchida "to allow Petitioner an opportunity to file a brief in support of his petition for habeas relief." Dkt. No. 25. On November 28, 2014, Petitioner filed his brief. Dkt. 31. On January 9, 2014, Magistrate Judge Tsuchida issued a second Report and Recommendation, and again recommended dismissal of the petition as time barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d). On January 22, 2014, Petitioner timely filed his objections to the second Report and Recommendation. Dkt. No. 33.
This Court reviews de novo the portion of the Report and Recommendation to which Petitioner objects. Fed. R. Crim. P. 59(b)(3); 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify" the recommendation. Fed. R. of Crim. P. 59(b)(3).
For the reasons stated below, this Court holds that Magistrate Judge Tsuchida reached the correct conclusion in finding that Petitioner's habeas petition is time barred and should be dismissed. Therefore, Petitioner's objections are OVERRULED and the Court will ADOPT the Report and Recommendation.
The background of this case is set out in State v. Smith, No. 58779-0-I, 148 Wash.App. 1021, at *1-5 (Wash.Ct.App. Jan. 26, 2009) and the Report and Recommendation. In brief, in February 2001, Petitioner pleaded guilty to second degree felony murder predicated on assault of Dale Bateman. Id. at *2. Petitioner shot Bateman four times during the commission of a drug deal between Petitioner, Calvin Wilson (Petitioner's accomplice), and Bateman. Id. at *1. In 2005, the Court of Appeals of Washington reversed Petitioner's felony murder conviction based on the holding in In re Pres. Restraint of Andress, 56 P.3d 981 (Wash. 2002), and In re Pres. Restraint of Hinton, 100 P.3d 801 (Wash. 2004). Id. at *2. On April 7, 2005, after the trial court entered an order vacating his second degree felony murder conviction, Petitioner was arraigned on amended charges of one count of felony murder in the first degree with robbery and kidnapping as the underlying predicates and one count of intentional murder in the second degree. Id. In August 2006, the jury found Petitioner guilty in separate verdicts of felony murder in the first degree and manslaughter in the first degree. Id.
Petitioner appealed his conviction to the Washington Court of Appeals. Dkt. No. 18, Ex. 4 and Ex. 5. On January 26, 2009, the Court affirmed his conviction, but struck the manslaughter conviction and remanded "to the trial court for any further proceeding that are necessary." State v. Smith, No. 58779-0-I, 2009, 148 Wash.App. 1021, at *7 (Wash.Ct.App. Jan. 26, 2009). On April 14, 2010, the Washington Court of Appeals issued its mandate. Dkt. 18, Ex. 12. On October 21, 2010, the trial court entered an order vacating the manslaughter conviction. Id., Ex. 13.
On October 18, 2010, Petitioner filed a motion to vacate the judgment in the trial court, asking the court to vacate the 2006 judgment and sentence and reinstate the 2001 judgment and sentence. Id., Ex. 14. This would have resulted in vacation of Petitioner's first degree murder conviction and reinstatement of his second degree murder conviction. The trial court transferred the motion to the Washington Court of Appeals to be treated as a personal restraint petition. Id., Ex. 15. On July 3, 2012, after Petitioner filed a motion to withdraw his personal restraint petition, the Washington Court of Appeals dismissed it. Dkt. No. 33, Ex. 2. On October 12, 2012, the Court issued a certificate of finality. Dkt. No. 18, Ex. 17.
On October 18, 2011, Petitioner filed a second personal restraint petition in the Washington Court of Appeals. Id., Ex. 24-25. On May 3, 2013, the Court dismissed the petition as untimely pursuant to RCW 10.73.90. The Appellate Court held that Petitioner's judgment and sentence became final on April 14, 2010 when the mandate was issued in the direct appeal of the 2006 judgment and sentence, therefore, the petition was filed more than a year after the final judgment was rendered in violation of the statute of limitations under RCW 10.73.090. Dkt. 18, Ex. 28. The Court also noted that when the trial court vacated the manslaughter conviction in October 2010, that act did not constitute resentencing because the trial court did not exercise independent judgment, or review, or rule on any issue as to the felony murder conviction. Dkt. 18, Ex. 28.
On May 21, 2013, Petitioner filed a motion for discretionary review in the Washington Supreme Court. Id., Ex. 29. On January 23, 2014, the Supreme Court denied review agreeing with the Appellate Court that the petition was barred by the statute of limitations. Id., 30. On February 21, 2013, Petitioner moved to modify the ruling. Dkt. 18, Ex. 31. On April 2, 2014, the Court denied the motion without comment. Id., 32. On April 23, 2014, the Washington Court of Appeals issued its certificate of finality. Id., Ex. 33.
On April 9, 2012, Petitioner filed a motion to compel disclosure of "Brady material withheld from the defense" in the trial court. Id., Ex. 34. The trial court transferred the motion to the Washington Court of Appeals to be treated as a personal restraint petition. Id., Ex. 35. On September 14, 2012, the Washington Court of Appeals dismissed the petition because the issue had been previously raised in Case No. 68084-6-I (the untimely filed second personal restraint petition) and would be adequately addressed there. Id., Ex. 36. On the same date, the Court issued its certificate of finality. Id., Ex. 37.
On September 30, 2012, Petitioner filed a motion to unseal the documents in the trial court. Id., Ex. 38. Specifically, Petitioner asked to unseal personal notes of Patty O'Donnell. Id. The trial court again transferred the motion to the Washington Court of Appeals to be treated as a personal restraint petition. Id., Ex. 39. On June 18, 2013, the Washington Court of Appeals returned the motion to the trial court, holding that it did not constitute a personal restraint petition because motions to unseal are properly addressed to-and decided by-the ...