United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. Christel, United States Magistrate Judge.
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.
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
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).
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.
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
Statute of Limitations
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). 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.”
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.
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).