United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Magistrate Judge Brian
Tsuchida's report and recommendation (Dkt. No. 8) and
Petitioner Robert Ralph Berg's objections (Dkt. No. 10).
Having reviewed Judge Tsuchida's report and
recommendation and Mr. Berg's objections, the Court
hereby ADOPTS in part the report and recommendation and
DENIES Mr. Berg's request for habeas relief for the
reasons stated herein.
Berg filed a section 2241 habeas petition challenging a
number of prior state criminal convictions and one federal
conviction. (Dkt. No. 8 at 2.) Mr. Berg also states he has
been improperly “placed on community custody.”
(Dkt. No. 7 at 3.) Judge Tsuchida submitted a report and
recommendation recommending the Court deny Mr. Berg's
petition on any of three grounds: (1) Mr. Berg's
challenges to state and federal convictions are not properly
raised under 28 U.S.C. section 2241; (2) Mr. Berg is not
“in custody” and is therefore not eligible for
habeas relief; and (3) Mr. Berg's habeas petition is
time-barred. (Dkt. No. 8 at 3.)
Berg filed objections to the report and recommendation, which
appear to address the second and third bases for dismissal.
He contests Judge Tsuchida's conclusion that he is not
“in custody” for purposes of a habeas petition,
referring to the “community custody” condition to
which he is subject. The “in custody” requirement
of 28 U.S.C. § 2241 does not require a petitioner to be
physically confined at the time of filing. Maleng v.
Cook, 490 U.S. 488, 490‒92 (1989). Rather, it only
necessitates that he be illegally restrained in his movements
and activities because of a judicial order. Id. Mr.
Berg is required to report once a week to a parole officer.
(Dkt. No. 10 at 1, 4.) He also cannot leave King County
without prior approval from a Department of Corrections
(“DOC”) supervisor. (Dkt. No. 5-1 at 2, 5.) These
restrictions satisfy the “in custody”
requirement. Brian R. Means, Federal Habeas Manual
§ 1:9 (2017); cf. Roach v. Vail, No.
C09-5155-RBL, Dkt. No. 27 at 2, 12 (W.D. Wash. May 10, 2010)
(report and recommendation of Magistrate Judge, adopted by
Court on June 4, 2010) (finding petitioner no longer
restrained after community supervision ended).
though Mr. Berg is in custody, his petition is time-barred by
statute. Unless a petitioner qualifies for a statutorily
enumerated exception, federal courts may not consider habeas
petitions filed more than one year after the underlying
conviction has mandated. 28 U.S.C. §
2244(d)(1)(A).Mr. Berg was sentenced to community custody
on August 29, 2012. (Dkt. No. 5-1 at 2.) His conviction
mandated on June 4, 2014, with the Washington Superior
Court's denial of his appeal. (Dkt. No. 5-2 at 5.) The
conditions of his community custody were explained to him on
April 3, 2013. (Id.) This petition was not filed
until April 9, 2018. (Dkt. No. 1-1 at 1, 9.) That is well
past the one year deadline for filing a
Berg also argues his petition is not untimely because
“there is no statute of limitations on
innocence.” (Dkt. No. 10 at 2.) Actual innocence is not
a cognizable grounds for habeas relief unless a petitioner
demonstrates the claim is based on newly available evidence
and raises concerns of a constitutional error. Herrera v.
Collins, 506 U.S. 390, 400 (1993); Schlup v.
Delo, 513 U.S. 298, 315, (1995). Mr. Berg presents no
new facts supporting his claim. Accordingly, his petition
does not fall within the narrow scope of the actual innocence
exception to the one-year time bar. Schlup, 513 U.S.
at 315; Marrero v. Ives, 682 F.3d 1190, 1192-93 (9th
foregoing reasons, the Court ADOPTS the report and
recommendation as to Judge Tsuchida's third ground for
dismissal (Dkt. No. 8). This matter is DISMISSED with
prejudice and issuance of a Certificate of Appealability is
DENIED. The Clerk is DIRECTED to send a copy of this order to
 The one-year statute of limitations
also applies to petitions filed under 28 U.S.C. sections 2254
and 2255. Mr. Berg's petition would thus be time-barred
even if the Court were to convert it to a challenge brought
under those statutes. 28 U.S.C. § 2255(f); 28 U.S.C.
§ 2244(d); McQuiggin v. Perkins, 569 U.S. 383,
 While Mr. Berg's petition could be
liberally construed as a collateral attack on the DOC's
March 2, 2018 decision extending his community custody until
2019, even this would not suffice. The Court may deny a
petition when the record reveals the petitioner is not
entitled to relief. 28 U.S.C. § 2243. The record shows
that Mr. Berg's community custody conditions require him
to remain in King County unless he is given permission to
leave. (Dkt. No. 5-1 at 1‒ 5.) It also shows Mr. Berg
violated that condition by residing in Pierce County and
failing to report to his DOC supervisor. (Id.)
Washington law tolls the period of community custody when a
prisoner fails to report. Wash. Rev. Code § 9.94A.171.