United States District Court, W.D. Washington, Tacoma
ORDER ON PETITIONER'S MOTION FOR STAY AND
ABEYANCE OF HABEAS PROCEEDINGS
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court upon the Petitioner's
Motion for a Stay and Abeyance of Habeas Proceedings. Dkt.
66. The Court has considered pleadings filed regarding the
motion, and the remaining record.
November 23, 2016, Petitioner filed this habeas corpus
petition, challenging a 1, 392 month sentence for his 2004
conviction, after a jury trial, of 16 counts of first degree
child rape, 26 counts of sexual exploitation of a minor, 6
counts of first degree child molestation, 1 count of second
degree assault of a child with sexual motivation, and 2
counts of first degree attempted child rape in connection
with his treatment of two boys who were five and six years
old. Dkts. 1 and 4. For the reasons provided below,
Petitioner's motion (Dkt. 66) should be denied.
8, 2018, a 54-page Report and Recommendation was filed,
recommending this Court find, in part that, of the nine
grounds raised in the petition, ground seven, was not
exhausted and is now procedurally barred. Dkt. 61. Ground
seven of the petition asserts that “[t]here was
insufficient evidence to convict Petitioner of second-degree
assault of a child (Count 40).” Dkt. 4. The Report and
Recommendation then went on to recommend that even if ground
seven was exhausted and was not procedurally barred, it
should be denied on the merits. Dkt. 61.
sought, and was granted, an extension of time to file
objections to the Report and Recommendation, asserting that
his intended objections were lengthy and he had limited time
in the law library. Dkts. 62 and 65. His objections are due
on June 22, 2018. Dkt. 65.
now files a 70 page motion (with attachments) to stay this
Court's consideration of his petition. Dkt. 66.
Petitioner claims that he has recently filed a fourth
Personal Restrain Petition (“PRP”) with Division
II of the Washington State Court of Appeals, arguing that the
“State presented insufficient evidence to support Count
XL (40), contrary to the Fifth and Fourteenth Amendments'
Due Process Clauses, ” in an effort to exhaust this
claim. Dkt. 66, at 18. Petitioner asserts that he is not
procedurally defaulted from bringing the claim under
Washington law. Dkt. 66.
opposes the motion. Dkt. 67. Petitioner has filed a reply.
Dkt. 68. The motion is ripe for decision.
motion pre-supposes that this Court will find that his
seventh ground for relief is unexhausted, and is not
procedurally barred by Washington state law.
without finding, that the claim is unexhausted, “[i]n
addition to the exhaustion requirement, a federal court may
not hear a habeas claim if it runs afoul of the procedural
bar doctrine.” Cooper v. Neven, 641 F.3d 322,
327 (9th Cir. 2011). Under the procedural bar doctrine, if a
state procedural rule would now preclude the petitioner from
raising his claim in the state courts, the claim is
considered “procedurally defaulted” and the
federal courts are barred from reviewing the claim.
Coleman v. Thompson, 501 U.S. 722, 731-732 (1991).
Washington, “[n]o petition or motion for collateral
attack on a judgment and sentence in a criminal case may be
filed more than one year after the judgment becomes final if
the judgment and sentence is valid on its face and was
rendered by a court of competent jurisdiction.” RCW
§ 10.73.090 (1). As is relevant here, a judgement and
sentence in Washington becomes final on the date the United
Supreme Court “denied certiorari to review a decision
affirming the conviction on direct appeal.” RCW §
10.73.090 (3)(c). The United Supreme Court denied certiorari
on Petitioner's second direct appeal on October 7, 2013.
Greening v. Washington, 571 U.S. 865 (2013).
Accordingly, the time for Petitioner to file post-conviction
relief in the Washington state courts ended on October 7,
argues that an exception to the time bar in RCW §
10.73.090 applies here. Indeed, the one-year time limit in
RCW § 10.73.090 “does not apply if the petitioner
pleaded not guilty and demonstrates that the evidence was
insufficient to support the conviction.” Matter of
Bell, 187 Wn.2d 558, 565 (2017)(citing RCW
§ 10.73.100(4)). The Petitioner pleaded not guilty.
Turning to the second consideration, the sufficiency of the
evidence in the context of whether RCW § 10.73.100 (4)
applies, the test “is whether, after viewing the
evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a
reasonable doubt. All reasonable inferences from the evidence
must be drawn in favor of the State and interpreted most
strongly against the defendant.” Id. at 566.
stated in the Report and Recommendation (Dkt. 61 at 45-47),
Petitioner has failed to show that the evidence used to
support his conviction on count 40 was insufficient. The
Court adopts the reasoning as stated in the Report and
Recommendation for purposes of this test. Accordingly, RCW
§ 10.73.100 (4)'s exception to the time bar does not
apply. Washington State procedural rules bar consideration of
an attempt at post-conviction relief on this claim.
Matter of Bell, at 566 (holding that, while
petitioner's PRP claim, that there was insufficient
evidence to support his conviction for intent to deliver
cocaine, was arguably exhausted, ...