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Greening v. Key

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

June 18, 2018

NEIL GREENING, Petitioner,
v.
JAMES KEY, Respondent.

          ORDER ON PETITIONER'S MOTION FOR STAY AND ABEYANCE OF HABEAS PROCEEDINGS

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS 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.

         On 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.

         I. FACTS

         On May 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.

         Petitioner 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.

         Petitioner 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.

         Respondent opposes the motion. Dkt. 67. Petitioner has filed a reply. Dkt. 68. The motion is ripe for decision.

         II. DISCUSSION

         Petitioner's 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.

         Assuming, 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).

         In 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, 2014.

         Petitioner 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.

         As 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, ...


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