United States District Court, W.D. Washington, Seattle
ORDER DECLINING SERVICE OF HABEAS PETITION
A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE
January 22, 2018, Michael Shane Cates, signed a pro
se 28 U.S.C. § 2241 habeas corpus petition. Dkt. 1.
The petition was received by the United States District Court
for the Eastern District of Washington on January 31, 2018.
See Dkt. 6. On February 1, 2018, the petition was
transferred to this district because Mr. Cates challenges a
conviction and sentence imposed on April 24, 2012, in the
Snohomish County Superior Court which is located in the
Western District of Washington. Dkt. 5.
habeas petition, Mr. Cates challenges his convictions for two
counts of first degree child rape and two county of child
molestation. Dkts. 1, 11. After Mr. Cates was sentenced, he
filed a direct appeal. The Washington Court of Appeals
affirmed the convictions and sentence on January 21, 2014.
See Cates v. State of Washington, 179 Wash.App. 1002
(2014). The Washington Supreme Court granted review on June
4, 2014, 180 Wn. 2d 1013, and affirmed the Court of Appeals
on July 2, 2015. Cates v. State of Washington, 183
Wn. 2d 531 (2015). While review in the Washington Supreme
Court was pending, Mr. Cates filed a personal restraint
petition (PRP) in the Washington Court of Appeals. The PRP
was denied on April 4, 2016, and review was terminated that
day. A certificate of finality was issued on May 31,
judgment in the conviction Mr. Cates challenges was imposed
more than one year before the date he filed his federal
habeas petition. It therefore appears Mr. Cates' habeas
petition is untimely and subject to dismissal. However,
because Mr. Cates proceeds pro se, rather than
dismissing the case at this point, the Court grants him leave
to explain, no later than March 12, 2018,
why his habeas petition should not be dismissed. The Court
will recommend the case be dismissed if no response is filed
or if the response does not adequately address the timeliness
of the petition.
initial matter, state prisoners such as Mr. Cates who
challenge their conviction and sentence must make all federal
habeas challenges under § 2254, and may not seek relief
under § 2241. See Moore v. Reno, 185 F.3d 1054,
1055 (9th Cir. 1999). Section 2241 is appropriate only in
limited situations not applicable here. See e.g. McNeely
v. Blanas, 336 F.3d 882, 824 n. 1 (9th Cir. 2003)
(§ 2241 applicable is applicable pretrial detention);
Tyler v. United States, 929 F.2d 451, 453 n. 5 (9th
Cir. 1991) (§ 2241 applicable to certain parole board
rather than dismissing Mr. Cates' habeas petition as
improperly brought under § 2241, the Court construes the
habeas petition as brought under § 2254. See White
v. Lambert, 370 F.3d 1002, 1005-07 (9th Cir. 2004)
(§ 2254 is the exclusive avenue for challenging
constitutionality of continued detention by prisoner in state
custody pursuant to a state court judgment), overruled on
other grounds, Hayward v. Marshall, 603 F.3d 546,
555 (9th Cir.2010) (en banc).
2254 habeas corpus petitions filed by persons imprisoned
under a state court judgment are subject to a one-year
statute of limitations. See 28 U.S.C. §
2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A),
“[t]he limitation period shall run from . . . the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review . . . .” The limitation period may run from a
later date under the following circumstances. First it may
run from the date the United State Supreme Court recognizes a
new constitutional right that the Supreme Court makes
retroactive to cases on collateral review, and second it may
run from the date the factual predicate of the claim
presented could have been discovered through the exercise of
due diligence. 28 U.S.C. § 2244(d)(1)(C) and (D).
Cates' conviction became final on April 4, 2016, when
review of his PRP was terminated. Mr. Cates signed his
federal habeas petition on January 22, 2018, though it was
received by the Eastern District of Washington on January 31,
2018. Even assuming the petition was filed on January 22,
2018, it nonetheless is untimely―more than one year
passed from the time judgment became final on April 4, 2016,
and the date he filed his habeas petition. See Goncalves
v. Stewart, 18 Fed.Appx. 580 (9th Cir. 2001)(decision
affirming conviction terminates review, not subsequent
issuance of certificate of finality). Therefore, Mr.
Smith's federal habeas petition is barred under the
federal statute of limitations, 28 U.S.C. § 2244(d).
Court notes Mr. Cates contends “I am citing and using
State v. W.R. as a ground for newly discovered
evidence.” Dkts. 1, 11 at 15. The contention fails as a
basis to expand the statute of limitations in this case.
First State v. W.R., 181 Wn.2d 757 (2014), is not a
United States Supreme Court decision and therefore does not
provide relief from the one year statute of limitations under
28 U.S.C. § 2244(d)(1)(C).
W.R.'s constitutional holding does not rest on a
new rule of federal constitutional law, but relied on federal
precedent that is almost thirty years old - long before Mr.
Cates' conviction became final. State v. W.R.,
at 761-63. The Washington Supreme Court also decided
W.R. in 2014, years before judgment
for federal habeas purposes was final in Mr. Cates' case.
The decision therefore does not constitute a new rule of law
under any circumstances.
lastly, Mr. Cates' claims rely on facts from his arrest
in Missouri, his extradition from that state to Washington to
face trial, how his trial lawyer was overburdened and
ineffective, how the state's expert witness was allowed
to provide improper testimony without a Frye hearing, how his
trial lawyer would not let him testify, how damaging photos
were presented to the jury, and how there was insufficient
evidence to convict him. These are not new facts.
Court also notes the statute of limitations governing federal
habeas petitions is subject to equitable tolling. Holland
v. Florida, 560 U.S. 631 (2010). But equitable tolling
is available “only when extraordinary circumstances
beyond a prisoner's control make it impossible to file a
petition on time and the extraordinary circumstances were the
cause of his untimeliness.” Laws v. Lamarque,
351 F.3d 919, 922 (9th Cir. 2003) (internal quotation and
citation omitted). Thus, Mr. Cates must demonstrate
extraordinary circumstances prevented him from filing a
timely federal habeas corpus petition.
it appears Mr. Cates' habeas petition is barred by the
statute of limitations the Court declines to serve it.
However, the Court grants Mr. Cates leave to explain no later
than March12, 2018, why
the petition should not be dismissed. The Court will
recommend the case be dismissed if no explanation is filed by