United States District Court, W.D. Washington, Seattle
CURTIS J. WALKER, Petitioner,
JERI BOE, Respondent.
REPORT AND RECOMMENDATION
Alice Theiler United States Magistrate Judge
AND SUMMARY CONCLUSION
a federal habeas action filed under 28 U.S.C. § 2254.
Petitioner Curtis Walker seeks to challenge in this action
his 2012 King County Superior Court judgment and sentence.
Respondent filed an answer to petitioner's habeas
petition together with relevant portions of the state court
record. Petitioner filed a response to respondent's
answer. This Court, having reviewed the submissions of the
parties, concludes that this federal habeas action should be
dismissed as untimely under 28 U.S.C. § 2244(d).
February 2, 2012, petitioner was found guilty, following a
jury trial, on one count of murder in the first degree and
one count of unlawful possession of a firearm in the first
degree. (See Dkt. 15, Ex. 1 at 1.) Petitioner was
sentenced on March 22, 2012 to a total term of 608 months
confinement, and that sentence was ordered to run consecutive
to a sentence imposed in a prior King County Superior Court
matter. (See id., Ex. 1 at 4.) Petitioner appealed
his convictions to the Washington Court of Appeals, and the
Court of Appeals issued an unpublished opinion affirming the
convictions on March 31, 2014. (See id., Exs. 2-6.)
Petitioner moved for reconsideration of the Court of
Appeals' opinion, and that motion was denied on June 13,
2014. (Id., Exs. 7-9.) Petitioner next sought review
in the Washington Supreme Court, and the Supreme Court denied
review without comment on November 5, 2014. (Id.,
Exs. 10-11.) The Court of Appeals issued a mandate
terminating direct review on December 31, 2014.
(Id., Ex. 12.)
November 20, 2015, petitioner filed a personal restraint
petition in the Washington Court of Appeals, and the Acting
Chief Judge of the Court of Appeals issued an order
dismissing the petition on September 14, 2016. (See
id., Exs. 13-16.) Petitioner thereafter sought review in
the Washington Supreme Court, and the Supreme Court
Commissioner issued a ruling denying review on April 24,
2017. (See id., Exs. 17-18.) The Court of Appeals
issued a certificate of finality in petitioner's personal
restraint proceedings on September 29, 2017. (See
id., Ex. 19.)
December 14, 2015, while petitioner's personal restraint
petition was pending in the Court of Appeals, petitioner
filed a motion to vacate his judgment and sentence under
Washington Superior Court Criminal Rule (CrR) 7.8 in the King
County Superior Court. (Id. at 20.) That motion was
transferred to the Court of Appeals for consideration as a
personal restraint petition. (Dkt. 15, Ex. 22.) The Court of
Appeals dismissed the petition on March 29, 2016.
(Id., Ex. 23.) Petitioner did not seek further
review in the Washington Supreme Court, and the Court of
Appeals issued a certificate of finality in that proceeding
on May 6, 2016. (Id., Ex. 24.)
October 16, 2017, petitioner submitted his original federal
habeas petition to this Court for filing. (See Dkt.
1 at 15.) Because of deficiencies in the original petition,
the Court declined to serve that petition on respondent.
(See Dkt. 5.) Petitioner filed an amended petition
on November 27, 2017 (Dkt. 6), and that is the operative
petition in this action.
argues in his answer to petitioner's amended federal
habeas petition that the petition is untimely under the
federal statute of limitations, 28 U.S.C. § 2244(d).
(See Dkt. 13 at 13-17.) Petitioner argues in his
amended response to respondent's answer that based upon
his calculation of the limitations period, and assuming
proper credit for all statutory tolling, his petition was
filed 24 days before the limitations period expired.
(See Dkt. 17.)
to § 2244(d)(1), a one year period of limitation applies
to an application for a writ of habeas corpus filed by a
person in custody pursuant to the judgment of a state court.
The one year limitation period generally begins to run from
the date of the conclusion of direct review or “the
expiration of the time for seeking such [direct] review,
” whichever is longer. 28 U.S.C. § 2244(d)(1)(A).
In this case, the period for direct review ended, at the
latest, upon the expiration of the period for filing a
petition for writ of certiorari with the United States
Supreme Court. See Bowen v. Roe 188 F.3d 1157,
1158-59 (9th Cir. 1999).
Washington Supreme Court denied petitioner's petition for
review on direct appeal on November 5, 2014. (Dkt. 15, Ex.
11.) Petitioner had 90 days after the entry of that ruling
(as opposed to the issuance of the state mandate), or until
approximately February 3, 2015, to file a petition for writ
of certiorari with the United States Supreme Court.
See Rules 13.1 and 13.3 of the Rules of the Supreme
Court of the United States. Because petitioner did not file a
petition for writ of certiorari, his conviction became final
on or about February 3, 2015. 28 U.S.C. § 2244(d)(1)(A).
Petitioner's one year statute of limitations began to run
on the following day. See Corjasso v. Ayers, 278
F.3d 874, 877 (9th Cir. 2002).
year limitation period is tolled for any “properly
filed” collateral state challenge to the state
conviction. 28 U.S.C. § 2244(d)(2). Petitioner filed a
timely personal restraint petition in the Washington Court of
Appeals on November 20, 2015, which stopped the clock on the
federal statute of limitations. At that time, 289 days had
run on the statute of limitations. The Washington Supreme
Court denied petitioner's motion for discretionary review
on April 24, 2017, thus concluding petitioner's