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Walker v. Boe

United States District Court, W.D. Washington, Seattle

April 3, 2018

CURTIS J. WALKER, Petitioner,
v.
JERI BOE, Respondent.

          REPORT AND RECOMMENDATION

          Mary Alice Theiler United States Magistrate Judge

         INTRODUCTION AND SUMMARY CONCLUSION

         This is 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).

         BACKGROUND

         On 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 Petitioner appealed his convictions to the Washington Court of Appeals, and the Court of Appeals issued an unpublished opinion affirming the convictions on March 31, 2014.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.)

         On 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.)

         On 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.)

         On 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.

         DISCUSSION

         Respondent 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.)

         Statute of Limitations

         Pursuant 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).

         The 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).

         The one 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 collateral ...


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