United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. BRYAN United States District Judge.
MATTER comes before the Court on the Report and
Recommendation of U.S. Magistrate Judge J. Richard Creatura.
Dkt. 22. The Court has considered the Report and
Recommendation (Dkt. 22), the Petitioner's objections
(Dkt. 23), and the remaining record.
case, brought pursuant to 28 U.S.C. § 2254, the
Petitioner challenges the sentence to confinement and
community custody imposed after her plea of guilt to multiple
counts of rape of a child in the third degree and to witness
tampering. Dkt. 1. The Report and Recommendation recommends
that the petition be denied, a certificate of appealability
not issue, and the case closed. Dkt. 22.
facts and procedural history are in the Report and
Recommendation (Dkt. 22, at 1-7) and are adopted here.
filed objections to the Report and Recommendation. Dkt. 23.
She states that “Gounds 1-4 of her habeas corpus
petition are now moot because she has been released from
confinement, ” but that “Grounds 5 and 6 still
hold.” Dkt. 23, at 3.
the Report and Recommendation's recommendations regarding
the dismissal of Grounds 1-4 should be adopted. This order
will now address the Petitioner's objections as to
Grounds 5 and 6.
5 of the Petition claims that one of the community custody
conditions imposed, which bars her use of electronic media,
is unconstitutional under the First and Fourteenth
Amendments. Dkt. 3. Ground 6 claims that one of the community
custody conditions imposed, which bars the Petitioner from
“frequenting areas where minors congregate without
being accompanied by a responsible adult approved by DOC and
sex offender treatment provider to include, but not limited
to: school grounds, malls, parks, or any other area
designated by DOC, ” is unconstitutional under the
Fourteenth Amendment. Id.
outset, it is not clear that the conditions of community
custody are properly raised in a habeas petition. These
grounds do not challenge the fact or duration of her
confinement, but may more appropriately be thought of as
conditions of confinement. As was concluded in the Report and
Recommendation, though, the Court need not reach this issue,
because the claims are procedurally defaulted.
case was stayed while the Petitioner filed a second Personal
Restraint Petition (“PRP”) with the Washington
Court of Appeals so that she could attempt to exhaust Grounds
5 and 6. This was the Petitioner's second PRP, and so on
May 24, 2018, the Washington Court of Appeals transferred the
case to the Washington Supreme Court as a second or
successive petition. Dkt. 21-1, at 92. The Washington Supreme
Court considered whether an exception to the one year filing
requirement (significant changes in the law) applied to the
second PRP, concluded that the exception did not apply, and
dismissed this second PRP as untimely. Dkt. 21-1, at 95-96.
The stay in this case was lifted, and after further briefing,
the Report and Recommendation followed.
objections, the Petitioner again maintains that the
“significant change in the law” exception, to the
one-year to file a PRP time bar, applies. Dkt. 23. As she
asserted in the Washington courts, the Petitioner maintains
that Packingham v. North Carolina, 137 S.Ct. 1730
(2017), involving a statute that criminalized access to
social media by registered sex offenders, and both State
v. Magana, 197 Wn.App. 189 (2016), and State v.
Irwin, 191 Wn.App.644 (2016) relating to the contact
with minors, were changes to the law such that the state time
bar no longer applies. Id. Her objections further
assert that even if those grounds are procedurally defaulted
under Washington law, she should be excused from that default
because she had “cause” and not hearing her
claims would be a “miscarriage of justice.”
objections do not provide a basis to decline to adopt the
Report and Recommendation. If a state procedural rule
precludes a claim in state courts, the claim is
“procedurally defaulted” and federal courts are
barred from reviewing the claim on the merits unless the
Petitioner can show that the default should be excused.
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
stated in the Report and Recommendation, the Petitioner makes
no showing that the default should be excused. In regard to
excusing her default, she maintains again that she could not
raise the claims because the cases had not yet been decided.
Dkt. 23. The Washington Supreme Court specifically considered
and rejected that argument. As to her assertion that a
failure to consider Grounds 5 and 6 on the merits would be a
“miscarriage of justice, ” the Petitioner
maintains that access to the internet is very important to
her First Amendment rights for the claim to be dismissed on
procedural grounds. Dkt. 23. The Petitioner misapplies the
“fundamental miscarriage of justice” exception.
“A credible showing of actual innocence” may
allow a petitioner to pursue their constitutional
“claims on the merits notwithstanding the existence of
a procedural bar to relief.” McQuiggin v.
Perkins, 569 U.S. 383, 392 (2013). “This rule, or
fundamental miscarriage of justice exception, is grounded in
the equitable discretion of habeas courts to see that federal
constitutional errors do not result in the incarceration of
innocent persons.” Id. The Petitioner makes no
“credible showing of actual innocence, ” such
that the “miscarriage of justice exception”
objections, the Petitioner also states that she was unaware
the Court was interested in additional briefing after she
filed her “Motion to Amend/Supplement.” Dkt. 23.
She asserts that her legal documents were taken from her.
Id. She fails to explain why either of these are
grounds to decline to adopt the Report and Recommendation.
The Petitioner has filed several pages of objections. She