United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
3, 2018, state prisoner Sambo Moeun submitted a pro
se petition for writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his 2005 King County Superior Court
conviction by jury verdict of murder in the first degree.
See Dkt. 1.
Habeas Rule 4, the Court should dismiss a habeas petition if
it plainly appears from the petition and attached exhibits
the petitioner is not entitled to relief. The Court has
reviewed the habeas petition and concludes it is barred by
the federal statute of limitations, and that no amendment
would cure this barrier. Additionally, even if the habeas
petition was timely filed, it should be dismissed because it
fails to raise a claim upon which habeas relief may be
granted. 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
Moeun was convicted of First Degree Murder in King County
Superior Court and sentenced on June 7, 2005. Dkt. 1. Mr.
Moeun sought direct review in the Washington Court of
Appeals. The Court of Appeals affirmed Mr. Moeun's
conviction and sentence on January 16, 2007. State v.
Saly and Moeun, 136 Wn.App. 1042 (2007). The Washington
Supreme Court denied review on February 5, 2008. State v.
Saly and Moeun, 162 Wn.2d. 1017 (2008). In 2017, Mr.
Moeun filed a personal restraint petition (PRP) challenging
the sentence imposed in his murder conviction. See
Dkt. 1, attachment. On April 4, 2018, the Washington Supreme
Court denied review. The Court found the PRP was barred by
statute of limitations because Mr. Moeun filed the PRP more
than one year after his judgment became final in 2008.
Federal Habeas Claim
Moeun presents one ground for relief. He alleges:
The Apprendi exception for prior convictions does not extend
to juvenile adjudications. The trial court calculated
Moeun's offender score as 6, based on 4 juvenile
adjudications that are afforded to Adult convictions. Based
on Moeun's offender score of 6 his standard range is
351-448 months. But his offender score should have been 2
with a standard range of 261-347 months. Dkt. 1.
Moeun's habeas petition was filed more than eight years
after his judgment was final. It is thus barred by the
federal habeas statute of limitations. The Court has
considered whether there is an exception to the statute of
limitations which applies here. The Court concludes no
exception applies. In his petition, Mr. Moeun claims the
trial judge erred in calculating his offender score and
standard sentencing range. This is not a claim based upon
newly discovered evidence or new United States Supreme Court
law made applicable to cases on collateral review. Rather the
claim is based upon alleged sentencing error and is thus a
claim that Mr. Moen knew about, or should have known about
when he was sentenced in 2008. Moreover, the United States
Supreme Court has not held the
“Apprendi” exception claim that Mr. Moen
raises is applicable to state judgments. Thus the state
sentencing error alleged is not contrary to or an
unreasonable application of clearly established Supreme Court
law, and is not a basis for federal habeas relief.
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 ...