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Pitchford v. Jackson

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

April 10, 2018

JAVON D. PITCHFORD, Petitioner,
v.
ERIC JACKSON, Respondent.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.

         Javon 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 Dkt. 1.

         The 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.

         Under 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.

         BACKGROUND

         A. State Court Procedural History

         Mr. 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.

         On July 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.

         On 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, 2017. Id.

         DISCUSSION

         A. The Federal Statute of Limitations, 28 U.S.C. § 2244(d)

         Federal 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) (emphasis added).

         For 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.

         Mr. 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 ...


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