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Richey v. Obenland

United States District Court, W.D. Washington, Tacoma

March 18, 2017

THOMAS W. S. RICHEY, Petitioner,
v.
MIKE OBENLAND, Respondent.

          ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION, DISMISSING PETITION AS TIME-BARRED, AND DENYING A CERTIFICATE OF APPEALABILITY

          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. 56), and Petitioner Thomas W.S. Richey's (“Richey”) objections to the R&R (Dkt. 59).

         I. BACKGROUND

         Richey was in custody under a state court judgment and sentence that was entered in 1987 for his convictions, by plea, on one count of first-degree felony murder and one count of attempted first-degree murder. Dkt. 41, Exh. 1. On August 23, 2010, the state trial court entered an order correcting the judgment and sentence. Id., Exh. 3. Richey appealed the new judgment. Id., Exh. 5. The Washington Court of Appeals dismissed the appeal holding the ministerial correction was unappealable as a matter of state law. Id., Exh. 7. The Washington Supreme Court denied review, Id., Exh. 11, and, on August 8, 2011, denied Richey's motion to modify, Id., Exh. 13.

         On August 18, 2011, Richey filed a petition for writ of habeas corpus directly in the Washington Supreme Court. Id., Exh. 14. On April 12, 2012, the court dismissed the petition as time-barred. Id., Exh. 20.

         On March 27, 2013, Richey filed the instant petition in this Court. Dkt. 1. On November 12, 2014, the Ninth Circuit Court of Appeals concluded that the corrected judgment was a new, intervening judgment. Dkt. 34. On December 9, 2015, the Court declined to adopt an R&R recommending that the Court dismiss the petition as time-barred. Dkt. 50. That R&R concluded that Richey was effectively challenging his original judgment and, therefore, his petition was filed sixteen years after the relevant deadline. Dkt. 48 at 17-18. The Court rereferred the matter for further consideration. Dkt. 50.

         On August 25, 2016, the instant R&R issued recommending that the Court deny the petition on the merits. Dkt. 56. On September 23, 2016, Richey filed objections. Dkt. 59. On November 16, 2016, the Court requested additional briefing on the timeliness of Richey's petition based on the new, intervening judgment and prejudice. Dkt. 61. On January 6, 2017, the state filed a supplemental response. Dkt. 64. On January 9, 2017, Richey filed a supplemental response. Dkt. 65. On January 17, 2017, both parties filed supplemental replies. Dkts. 66, 67.

         II. DISCUSSION

          A. Statutory Tolling

         The federal Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). That limitations period is tolled, however, while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” § 2244(d)(2). “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).

         In this case, Richey's State post-conviction petitions were not properly filed. Even if Richey's direct appeals of his new judgment were properly filed[1], the Washington Supreme Court denied Richey's motion to modify the ruling on his direct appeal on August 8, 2011. Richey had 90 days to file a petition for a writ of certiorari with the United States Supreme Court. Clay v. United States, 537 U.S. 522, 524 (2003). Richey did not do so, and the judgment became final on November 7, 2011. Richey then had one year to file this petition for federal habeas relief. 28 U.S.C. § 2244(d)(1). Therefore, the time for filing this petition expired on November 7, 2012.

         On March 27, 2013, Richey filed the instant petition in this Court. Dkt. 1. Richey argues that the one-year statute of limitations was tolled by his personal restraint petitions in state court. Dkt. 65 at 3-6. All of those petitions, however, were denied as time-barred. See Dkt. 48 at 5-13. Under binding precedent, time-barred state petitions do not toll ADEPA's limitations period. Pace, 544 U.S. at 414. While the Court recognizes Richey's arguments that the state court decisions are at odds with the Ninth Circuit decision as to the substantive issue of the controlling judgment, the Court concludes that this is a distinction without a difference because “[w]hen a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” Id. Therefore, the Court concludes that Richey's petition is untimely and that he is not entitled to statutory tolling under § 2244(d)(2).

         B. Equitable Tolling

         “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some ...


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