United States District Court, W.D. Washington, Seattle
JAVON D. PITCHFORD, Petitioner,
ERIC JACKSON, Respondent.
REPORT AND RECOMMENDATION
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.
D. Pitchford is a state prisoner currently incarcerated at
the Monroe Correctional Complex-Twin Rivers. On March 7,
2018, he filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254 challenging his 2010 King
County Superior Court conviction by jury verdict of rape in
the first degree with a deadly weapon enhancement. Dkt. 1.
Mr. Pitchford raises five grounds for federal habeas relief:
(1) the trial court coerced the jury into a guilty verdict,
(2) trial counsel was ineffective, (3) the trial court gave
an invalid jury instruction, (4) there was insufficient
evidence to convict, and (5) State v. W.R., 181
Wn.2d 757 (2014) is new law supporting relief. See
Court reviewed the habeas petition and concluded it was
barred by the federal statute of limitations. In his habeas
petition, Mr. Pitchford contends his petition is timely on
the grounds that his second state personal restraint petition
(PRP) tolled the federal statute limitations, and State
v. W.R. is new law that supports relief. He is
incorrect. As discussed below, when Mr. Pitchford filed the
second PRP, the time by which he was required to file a
federal habeas petition had already lapsed. Additionally,
State v. W.R is a state decision, not a decision of
the United States Supreme Court. The decision is therefore is
not new law upon which a federal habeas petitioner may rely
to overcome the federal statute of limitations.
Habeas Rule 4, the Court should dismiss a habeas petition if
it plainly appears from the petition and attached exhibits
that the petitioner is not entitled to relief. Because Mr.
Pitchford proceeds pro se, the Court granted him
leave to show cause no later than April 6, 2018, why the
habeas petition should not be dismissed. Dkt. 2. The Court
also advised Mr. Pitchford that failure to respond by that
date or to show cause would result in a recommendation that
the habeas petition be dismissed with prejudice. Id.
Mr. Pitchford has not responded to the order to show cause.
Accordingly for the reasons below, the Court recommends the
habeas petition be denied and the case dismissed with
prejudice. The Court also recommends a certificate of
appealability not be issued.
State Court Procedural History
Pitchford was convicted of rape in the first degree with a
firearms enhancement in King County Superior Court, and
sentenced on April 4, 2010. Dkt. 1 at 1. He appealed the
conviction to the Washington Court of Appeals. Id.
at 2. On March 19, 2012, the Washington Court of Appeals
affirmed the rape conviction, vacated the firearms
enhancement, and remanded the case for resentencing.
State v. Pitchford, No. 65176-5-I, 2012 WL 975673 at
*1 (Wash. July 11, 2012). Mr. Pitchford sought review and on
July 11, 2012, the Washington Supreme Court remanded the case
for consideration of the impact of State v. Guzman
Nunez, 174 Wash.2d 707 (2012). State v.
Pitchford, 174 Wash.2d 1012 (2012). Based upon
Guzman Nunez, the Washington Court of Appeals
affirmed Mr. Pitchford's sentence on August 20, 2012.
15, 2013, Mr. Pitchford filed his first PRP in the Washington
Court of Appeals. Dkt. 1 at 3 (case no. 706748). The Court of
Appeals denied the PRP on November 13, 2013; the Washington
Supreme Court denied review on August 4, 2014. Dkt. 1 at 11.
October 27, 2015, Mr. Pitchford filed a second PRP in the
Washington Court of Appeals. Dkt. 1 at 4. The Court of
Appeals denied the PRP on March 8, 2016. Dkt. 1 at 12. The
Washington Supreme Court denied review on December 14, 2016,
and denied Mr. Pitchford's motions to modify on March 24,
The Federal Statute of Limitations, 28 U.S.C. §
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 . . . .”
Additionally, “[t]he time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation
under this subsection.” 28 U.S.C. § 2244(d)(2)
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). When there
is no direct review or the direct review process terminates
prior to reaching the state's highest court, however, the
judgment becomes final on an earlier date. Gonzalez v.
Thaler, 132 S.Ct. 641, 652-56 (2012); Wixom v.
Washington, 264 F.3d 894 (9th Cir. 2001). If the
intermediate appellate court affirms the judgment and
sentence on direct appeal, and the petitioner does not timely
seek review by the state supreme court, the direct review
process concludes upon expiration of time for seeking review
by the state supreme court and the judgment becomes final on
that date. Gonzalez, 132 S.Ct. at 653-54.
Pitchford appealed from his judgment and sentence to the
Washington Court of Appeals. The Washington Supreme Court
granted review and remanded the case back to the Washington
Court of Appeals which affirmed the judgment and sentence on
August 20, 2012. Generally, a conviction becomes
“final” when the 90-day period for filing a
petition for certiorari to the Supreme Court
expires. See United States v. Garcia, 210 F.3d 1058,
1060 (9th Cir. 2000). Accordingly, although the Court of
Appeals affirmed Mr. Pitchford's ...