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Moeun v. Uttecht

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

June 7, 2018

SAMBO MOEUN, Petitioner,
v.
JEFFREY UTTECHT, Respondent.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         On May 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.

         Under 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.

         BACKGROUND

         A. State Court Procedural History

         Mr. 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. Id.

         B. Federal Habeas Claim

         Mr. 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.

         DISCUSSION

         Mr. 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.

         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 ...


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