United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE
District Court has referred this petition for a writ of
habeas corpus to United States Magistrate Judge J. Richard
Creatura. The Court's authority for the referral is 28
U.S.C. § 636(b)(1)(A) and (B), and local Magistrate
Judge Rules MJR3 and MJR4. Petitioner Jack Daniel Vess II
filed the petition pursuant to 28 U.S.C. § 2254.
asks that his convictions for rape and incest be overturned
because he was allegedly convicted based on insufficient
evidence. However, petitioner filed his habeas petition well
outside the one-year statute of limitations. Further, he
cannot demonstrate the extraordinary circumstances required
to apply equitable tolling and excuse his untimeliness, nor
has he made a showing that he is actually innocent, thus
excusing his late filing. Therefore, the Court recommends
plaintiff's habeas petition be denied as untimely.
FOR CUSTODY and PROCEDURAL HISTORY
was convicted by a jury of second-degree rape (domestic
violence related) and first-degree incest (domestic violence
related). Dkt. 8-1 at 2. Pursuant to Washington's
persistent offender statute, he was sentenced to life
imprisonment without the possibility of release and is
currently incarcerated in the Washington State Penitentiary.
Id. at 7.
he was convicted, petitioner filed a direct appeal. Dkt. 8-1
at 38. The Washington Court of Appeals denied plaintiff's
appeal, and petitioner sought review from the Washington
Supreme Court. Id. at 17, 126. That court summarily
denied review and his judgment became final on July 13, 2011.
Id. at 173. Petitioner then filed a personal
restraint petition on July 11, 2012, which the Washington
Court of Appeals also denied. Dkts. 8-2 at 2, 170. Petitioner
sought discretionary review from the Washington Supreme
Court, which was similarly denied. Dkts 8-3 at 182, 227. That
decision became final on January 29, 2015. Id. at
235. Petitioner filed this habeas petition over two years
later -- in August of 2017. Dkt. 1.
Timeliness of Habeas Petition
claims that petitioner filed his habeas petition well after
the statute of limitations expired. The Antiterrorism and
Effective Death Penalty Act established a statute of
limitations for petitions filed by prisoners challenging
their custody under a state court judgment and sentence. 28
U.S.C. § 2244(d). Where the challenged judgment became
final after April 24, 1996, a petitioner has one year from
“the date on which the judgment became final by
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
For purposes of 28 U.S.C. § 2244(d)(1)(A), direct review
generally concludes and the judgment becomes final either
upon the expiration of the time for filing a petition for
writ of certiorari with the Supreme Court, or when the Court
rules on a timely filed petition for certiorari. Bowen v.
Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Thus, if a
case could be appealed to the Supreme Court, the statute of
limitations begins to run when the 90 days to seek certiorari
expires. Id. at 1159. However, the judgment becomes
final on an earlier date where the direct review has
terminated prior to reaching the state's highest court.
Gonzalez v. Thaler, 565 U.S. 134, 147-154 (2012);
Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001).
petitioner filed his petition well after the one-year statute
of limitations. Petitioner did file a direct appeal. Dkt. 8-1
at 17, 38, 76. The filing of that appeal placed a hold on the
running of the statute of limitations while petitioner's
case remained in state court. See 28 U.S.C. §
2244(d)(2). Petitioner's judgment became final when the
Washington Supreme Court denied review on July 13, 2011.
Id. at 173. Thus, the statute of limitations began
running 90 days later, on October 11, 2011, once the window
to submit a timely request for a writ of certiorari with the
Supreme Court had closed. Petitioner next filed a personal
restraint petition on July 11, 2012, again placing a holding
on the running of the statute of limitations. Dkt. 8-2 at 2.
At this point, petitioner had used 274 days out of his one
year. The statute of limitations did not begin running again
until January 29, 2015, after the Court of Appeals denied
petitioner's personal restraint petition and the
Washington Supreme Court denied review, issuing a certificate
of finality. Dkt. 8-3 at 170, 227, 235. The statute of
limitations then ran until it expired 91 days later, on April
30, 2015. However, petitioner did not file this habeas
petition until August of 2017, well after the expiration.
Because of this, petitioner's habeas petition is
statute of limitations may be subject to equitable tolling if
the petitioner shows “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). To gain the benefit of equitable tolling,
extraordinary circumstances beyond a petitioner's control
must have prevented the petitioner from filing a federal
petition on time. Whalem/Hunt v. Early, 233 F.3d
1146, 1148 (9th Cir. 2000) (en banc); Gaston v.
Palmer, 387 F.3d 1004, 1008 (9th Cir. 2004); Laws v.
Lamarque, 351 F.3d 919, 923-24 (9th Cir. 2003). See
Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002)
(petitioner bears the burden of establishing his entitlement
to equitable tolling).
petitioner has not alleged that some extraordinary
circumstance prevented him from filing his habeas petition on
time and the Court can discern no evidence of one. Rather,
petitioner argues that he has made a showing of actual
innocence excusing his untimely filing. See Dkt. 11
at 1-2. Though he has presented evidence that some testimony
at trial was contradictory, he has not shown that no
reasonable juror could have convicted him as required for a
claim of actual innocence. Schlup v. Delo, 513 U.S.
198, 327 (1995). Further, he bases much of his argument in
his response on the Washington statute dictating the time
limits on personal restraint petitions. However, this
Court's duty is to determine whether a state court
unreasonably applied federal law, not to reexamine a state
court's determination of state law. See Williams v.
Taylor, 529 U.S. 362 (2000). Because of this, petitioner
has not demonstrated an extraordinary circumstance to excuse
the untimeliness of his habeas petition. Therefore, the Court
recommends granting respondent's motion and dismissing
petitioner's habeas petition.