United States District Court, E.D. Washington
ORDER DISMISSING PETITION
ROSANNA MALOUF PETERSON United States District Judge
Order filed December 28, 2017, the Court directed Mr. Bertram
to show cause why his habeas petition should not be dismissed
as time-barred under 28 U.S.C. § 2244(d). ECF No. 10.
Petitioner, a prisoner at the Stafford Creek Corrections
Center, is proceeding pro se and in forma
pauperis. Respondent has not been served. Mr. Bertram
has filed a timely response, ECF No. 12.
Bertram concedes that his deadline to file a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 was
August 30, 2017. ECF No. 12 at 2. The Washington State
Supreme Court denied direct appellate review on June 1, 2016,
and Petitioner did not seek certiorari in the U.S.
Supreme Court. ECF No. 11 at 2, 4.
excuse his untimely petition, Mr. Bertram presents three
arguments: (1) his court appointed appellate counsel did not
present him with a copy of the Washington Supreme Court's
order denying him review on direct appeal until August 30,
2016; (2) he diligently sought state court records to support
his federal habeas claim, which he did not receive until
February 23, 2017; and (3) his basis for habeas relief
qualifies for the “miscarriage of justice”
exception to the statute of limitations. ECF No. 12 at 2,
his first argument, Mr. Bertram admits that he received the
mandate issued by the Washington Supreme Court on July 8,
2016, ECF Nos. 11 at 25;12 at 3. Thus, he had notice of the
finality of his state court proceedings prior to August 30,
Bertram makes no assertion that he would have sought
certiorari in the U.S. Supreme Court if he had
received the notice from his court appointed attorney sooner.
The time for doing so expired on August 30, 2016. See
Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007).
The Court declines Mr. Bertram's invitation to accept the
delayed receipt of the Washington Supreme Court's order,
whether at the fault of the state court or his appointed
attorney, as an equitable basis to toll the running of the
federal limitations period.
there is no factual or legal basis for Mr. Bertram's
contention that he had until November 28, 2017, to file his
habeas petition, ECF No. 12 at 3. Therefore, the federal
limitations period, having commenced on August 30, 2016, and
expired on August 30, 2017, renders Mr. Bertram's federal
habeas petition, received by this Court on October 10, 2017,
untimely under 28 U.S.C. § 2244(d).
Mr. Bertram argues that he was diligent in his efforts to
obtain pre-trial records to support his habeas claim. ECF No.
12 at 3. The onset of the federal limitations period may be
statutorily delayed until “the date on which the
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.”
28 U.S.C. § 2244(d)(1)(D).
factual basis for Mr. Bertram's claim, however, is an
allegedly erroneous jury instruction. Petitioner was aware of
this fact when the instruction was given and his request for
an alternative instruction was denied. Petitioner has
presented no factual or legal support for a proposition that
the possession of evidentiary support for a claim delays or
tolls the running of the federal limitations period.
Therefore, Petitioner has failed to show a statutory basis to
delay the running of the federal limitations period under 28
U.S.C. § 2244(d)(1).
admits that he was in possession of all state court records
needed to prepare his federal habeas petition in February
2017. He presents no facts showing that any extraordinary
circumstance prevented from timely filing his petition in the
subsequent six months. See Holland v. Florida, 560
U.S. 631, 649 (2010). Petitioner's assertion regarding
the delay in receiving state court records will not toll the
running of the federal limitations period.
and last, Mr. Bertram argues for application of the
“miscarriage of justice” exception to the federal
limitations period under McQuiggin v. Perkins, 569
U.S. 383 (2013). According to McQuiggin, a federal
court may entertain an untimely first habeas petition that
raises a convincing claim of actual innocence. Id.
a proper showing of actual innocence, a petitioner must
establish his factual innocence of the crime and not mere
legal insufficiency. See Bousley v. United States,
523 U.S. 614, 623-24 (1998). A credible claim of actual
innocence “requires [a] petitioner to support his
allegation of constitutional error with new reliable evidence
. . . .” Schlup v. Delo, 513 U.S. 298, 324
(1995). Examples of evidence that may establish factual
innocence include credible declarations of guilt by another,
see Sawyer v. Whitley, 505 U.S. 333, 340 (1992),
trustworthy eyewitness accounts, and exculpatory scientific
evidence, see Schlup, 513 U.S. at 324.
Mr. Bertram has presented no new reliable evidence. Rather,
his claim of innocence is conflated into his single habeas
claim that an erroneous instruction was given to the jury.
Rather than making a case for factual innocence, Mr. Bertram
makes the legal argument that the jury would have acquitted
him, or found him guilty of a lesser offense, if the
erroneous “Aggressor Instruction” had not been
given. ECF No. 12 at 7
Bertram has not shown that he falls within the actual
innocence exception. Therefore, the federal habeas petition