United States District Court, W.D. Washington, Seattle
KEVIN L. BOOT, Petitioner,
JAMES KEY, Respondent.
REPORT AND RECOMMENDATION
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
Kevin L. Boot petitions for 28 U.S.C. § 2254 habeas
relief based on the Washington Indeterminate Sentence Review
Board's 2014 decision to deny him release. Dkt. 4. The
Court recommends DENYING Mr. Boot's
habeas petition as time-barred and moot, and
DENYING a certificate of appealability.
2254 habeas petitions are subject to a one-year statute of
limitations that are applicable both to petitions challenging
state-court judgments and to petitions challenging decisions
from administrative proceedings such as parole review.
See Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th
Cir. 2004). Section 2244(d)(1)(D) provides: “The
limitation period shall run from . . . the date on which the
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.”
28 U.S.C. § 2244(d)(1)(D). The limitation period is,
however, tolled during the pendency of a properly filed
application for state collateral review, such as a Washington
state personal restraint petition. 28 U.S.C. §
November 20, 2014, the Board issued its parole decision
denying Mr. Boot's release. Dkt. 4, at 16-18; Dkt. 12-1,
at 21-25. On that day, the statute of limitations began to
run given Mr. Boot had attended the hearing and received a
copy of the decision. Dkt. 12-1, at 25. Giving Mr. Booth the
benefit of the prison mailbox rule, the limitations period
ran for 363 days until he filed a PRP
challenging the Board's November 20, 2014 decision on
November 18, 2015. Dkt. 12-1, at 27; see Patterson v.
Stewart, 251 F.3d 1243, 1245 n.2 (9th Cir. 2001) (under
the prison mailbox rule, a habeas petition is deemed filed
the moment it is delivered to prison authorities for
forwarding to clerk of the district court). The statute of
limitations was then tolled until the Board's 2014 parole
decision became final for federal purposes when the state
supreme court denied review on May 24, 2017. Dkt. 12-1, at
78-79. The limitations period then ran again, expiring
two days later on May 26, 2017. Based on the
prison mailbox rule, Mr. Boot filed his habeas petition on
October 2, 2017. Dkt. 4, at 15. By that time, the statute of
limitations had expired 129 days earlier.
Mr. Boot has suggested no cognizable basis for equitable
tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1012 (9th Cir. 2009) (“The Supreme Court and the
policies behind AEDPA require that equitable tolling be used
only to protect diligent petitioners facing extraordinary
circumstances that prevent them from timely filing federal
habeas petitions.”). Mr. Boot's only stated reason
for allowing so much time to elapse before filing his federal
habeas petition was his misapprehension that the statute of
limitations did not begin to run until after the state
supreme court denied review of his PRP in May 2017.
See Dkt. 14, at 2 (“Making the 1-year period
of limitation would start on May 24, 2017.”). Mr.
Boot's habeas petition is therefore time-barred.
Boot's current habeas petition is also moot. Although Mr.
Boot challenges the 2014 parole decision, he has since been
denied release in a 2017 decision. Dkt. 12-1, at 9-14. The
Court can no longer provide relief based on the 2014 decision
because his continued confinement is premised on the 2017
denial of parole. See Burnett v. Lampert, 432 F.3d
996 (9th Cir. 2005).
prisoner seeking post-conviction relief under § 2254 may
appeal a district court's dismissal of the petition only
after obtaining a certificate of appealability
(“COA”) from a district or circuit judge. A COA
may be issued only where a petitioner has made “a
substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(3). A
prisoner satisfies this standard “by demonstrating that
jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
this standard, the Court finds that no reasonable jurist
would disagree that Mr. Boot's claims are time-barred and
moot. Mr. Boot should address whether a COA should issue in
his written objections, if any, to this Report and
Report and Recommendation is not an appealable order.
Therefore a notice of appeal seeking review in the Court of
Appeals for the Ninth Circuit should not be filed until the
assigned District Judge enters a judgment in the case.
however, may be filed and served upon all parties no later
than May 22, 2018. The Clerk should note the
matter for May 25, 2018, as ready for the
District Judge's consideration if no objection is filed.
If objections are filed, any response is due within 14 days
after being served with the objections. A party filing an
objection must note the matter for the Court's
consideration 14 days from the date the objection is filed
and served. The matter will then be ready for the Court's
consideration on the date ...