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Powell v. Obenland

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

November 30, 2017

BARRY A POWELL, Petitioner,
v.
MIKE OBENLAND, Respondent.

          REPORT AND RECOMMENDATION

          David W. Christel, United States Magistrate Judge.

         The District Court has referred this action to United States Magistrate Judge David W. Christel. Petitioner Barry A. Powell filed his federal habeas Petition on May 8, 2017, pursuant to 28 U.S.C. § 2254, seeking relief from the improper execution of his state sentence. See Dkt. 1. The Court concludes Petitioner failed to properly exhaust his state court remedies as to all grounds raised in the Petition; however, a state remedy remains available to Petitioner. Therefore, the Court recommends the Petition be dismissed without prejudice.

         I. Background

         On May 4, 2015, Petitioner pled guilty to assault in the third degree in the Pierce County Superior Court. See Dkt. 11-1, p. 2. Petitioner was sentenced to 51 months imprisonment and 9 months of community custody. See id. at pp. 10-11. Petitioner challenged his conviction and sentence on direct appeal, but moved to voluntarily withdraw his appeal on January 20, 2016. Id. at pp. 21-25. The Court of Appeals of the State of Washington dismissed Petitioner's direct appeal without prejudice on February 12, 2016. Id. at p. 29. On March 22, 2016, the state court of appeals issued its mandate. Id. at p. 31. There is no evidence Petitioner filed a personal restraint petition (“PRP”) seeking state post-conviction relief.

         On May 8, 2016, Petitioner filed the Petition raising the following four grounds: (1) “approved release address by Department of Corrections;” (2) “proper exhaustive authoritive (sic) procedure on how to apply 33.3% off and county awarded credits;” (3) “community custody, community placement, community supervision;” and (4) “proper interpretation of the arithmetic formula according to senate bill for 33% off sentence.” Dkt. 6. Petitioner does not explain his grounds for relief. However, the Court interprets his grounds as challenging the calculation of his release date (Grounds 2 and 4) and the procedures relating to his placement in community custody (Grounds 1 and 3).

         Respondent filed a Motion to Dismiss asserting the Petition is untimely. Dkt. 11. He also contends Petitioner failed to exhaust Grounds 1 - 4, and these grounds are now barred from federal review. Id. Respondent served the Motion to Dismiss on Petitioner on July 20, 2017. Id. at p. 11; Dkt. 13. Petitioner filed a Supplement to the Petition on August 25, 2017. Dkt. 15. The Court interpreted the Supplement to the Petition as a Motion to Amend and directed Respondent to file a response to the Motion to Amend. See Dkt. 18. Respondent filed a Response and the Honorable Robert J. Bryan, the District Judge assigned to this case, denied the Motion to Amend on October 18, 2017. The Motion to Dismiss became ready for the Court's consideration on October 20, 2017. See Dkt. 18.

         II. Evidentiary Hearing

         The decision to hold an evidentiary hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388 (2011). A hearing is not required if the allegations would not entitle Petitioner to relief under §2254(d). Landrigan, 550 U.S. at 474. “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.; see Cullen, 131 S.Ct. 1388. The Court finds it is not necessary to hold an evidentiary hearing in this case because Petitioner's claims may be resolved on the existing state court record.

         III. Discussion

         A. Statute of Limitations

         Respondent first argues the Petition should be dismissed with prejudice because it was filed more than one year after Petitioner's underlying conviction became final. Dkt. 11. Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which is codified at 28 U.S.C. § 2241 et seq., a one-year statute of limitations applies to federal habeas petitions. See 28 U.S.C. § 2244(d)(1).[1] Although the conclusion of direct review typically marks the beginning of the statutory one year period, section 2244(d)(1)(D) provides an alternative. Under section 2244(d)(1)(D), the one year limitations period shall run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”

         Here, Petitioner challenges the calculation of his release date, asserting he should be released on July 17, 2017. Dkt. 6, p. 16. He also challenges the procedures surrounding his release into community custody, including the Department of Corrections' (“DOC”) acceptance of his release address. Id. at pp. 5, 8. While Petitioner has not specified when he discovered the factual predicates of his claims, Petitioner would not have been aware that he was not going to be released on his alleged proper release date until July 17, 2017. He also would not have been aware that the DOC incorrectly applied the statutes to his application for release into community custody until after he applied for release.

         The Court finds the statute of limitations for Petitioner's grounds for relief did not begin to run when Petitioner's conviction became final, as alleged by Respondent. Rather, the statute of limitations began to run on the date Petitioner could have discovered that he was not going to be released on his early release date of July 17, 2017. Petitioner filed the Petition in May of 2017, two months prior to his alleged release date. As the Petition was filed within one year of Petitioner's alleged proper release date, the Court finds Respondent has not shown the Petition is untimely. See Murphy v. Espinoza, 401 F.Supp.2d 1048, 1052 (C.D. Cal. 2005) (finding the statute of limitations began to run on the date the petitioner believed his sentence should have expired); Loomis v. Blades, 2006 WL 2265260, at *3 (D. Idaho Aug. 8, 2006) (finding, when a petitioner is challenging the execution or administration of a sentence, the claim cannot be brought before the time when the petitioner alleges he should have been released); May v. Ryan, 2013 WL 3379361, at *4 (D. Ariz. July 8, 2013) (determining the petition was still untimely when the statute of limitations began to run on the date the petitioner learned he was not going to be released on his early release date).

         B. Exhaustion ...


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