United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on United States Magistrate Judge
Michelle Peterson's Report and Recommendation
(“R&R”) to the Undersigned. Dkt. #29. Judge
Peterson advises that the Court should dismiss the petition
as an improperly filed successive habeas petition.
Id. Judge Peterson also advises that the Court's
dismissal of the Petition should result in denying
Petitioner's pending Motion to Invalidate the State Court
Decision (Dkt. #27) as moot. Id. Petitioner objects
to dismissal of the Petition, Dkt. #34, and has filed several
subsequent motions seeking a variety of relief. Dkts. #30-#33
and #40. Respondent opposes Petitioner's objections and
requests that Petitioner's other motions be denied. Dkt.
#39. Finding Petitioner's objections meritless, the Court
adopts the R&R and dismisses the action. As a result, the
Court denies Petitioner's other motions as moot.
R&R Recommending Dismissal of Petitioner's §
was convicted in Washington State Superior Court in 2005 and
sentenced to 136 months to life on one count of second degree
rape and one count of third degree rape. Dkt. #10 at 1. Since
that time, Petitioner has filed four habeas petitions with
this Court. See Dkt. #29 at 2-3 (recounting history).
Petitioner's fifth, and current, Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody is at issue in this matter. Dkt. #10.
seeks, with his fifth petition, to challenge what he alleges
is an amended judgment that was entered in state court on
March 22, 2017. Dkt. #10 at 13. On this basis, Petitioner
argues that this is a first petition of the amended judgment.
Id. For support, Petitioner relies on two cases:
Magwood v. Patterson, 561 U.S. 320 (2010) and
Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012).
But Judge Peterson fully explains why those cases are
inapplicable here because any “amendment” to
Petitioner's judgment and sentence was merely to correct
a scrivener's error and did not modify the underlying
convictions or the sentence imposed. Dkt. #29 at 3-6. See
also Dkt. #39. Judge Peterson's R&R leads to the
clear conclusion that the Petition is an improperly filed
successive petition and should be dismissed.
has objected to the R&R on two grounds. First, he argues
that Judge Peterson applied the wrong standard to determine
whether the Petition was successive. Dkt. #34 at 1. But the
old case law Petitioner relies on, Sanders v. United
States, 373 U.S. 1 (1963), has been superseded by the
enactment of the Antiterrorism and Effective Death Penalty
Act (AEDPA). See Felker v. Turpin, 518 U.S. 651, 667
(1996) (as amended by the AEDPA, § 2244(b)
“creates a ‘gatekeeping' mechanism for the
consideration of second or successive applications in
district court”). Nothing in Petitioner's argument
demonstrates any legal error.
Petitioner argues that United State Magistrate Judge James P.
Donohue has previously ruled that “the 2005
judgment is moot” and that this is
“dispositive.” Dkt. #34 at 2. Petitioner does not
indicate where his quoted language came from and the Court
has been unable to find it in the record. The Court finds
no merit in Petitioner's unclear argument that lacks an
adequate legal basis.
Judge Peterson's R&R advises that the Court deny, as
moot, Petitioner's Motion to Invalidate State Court
Decision (Dkt. #27) because the R&R recommended dismissal
of the Petition. The Court agrees and, as a result, adopts
the R&R in full.
Petitioner's Subsequent Motions
Judge Peterson's R&R being docketed, Petitioner filed
several motions, including: a Motion for Relief from Final
Order (Dkt. #30); a Motion to Reconsider Final Order (Dkt.
#31); a second Motion for Relief from Final Order (Dkt. #32);
a Motion Requesting Evidentiary Hearing Based on Judicial
Notice (Dkt. #33); and a Motion to Clarify Judgment Status
(Dkt. #40). Because the Court has determined that the
Petition is not properly before this Court and must be
dismissed, the Court denies these other pending motions as
having reviewed the R&R, the objections and responses of
the parties, and the remainder of the record, the Court finds
Report and Recommendation (Dkt. #29) is ADOPTED.
Petitioner's Petition for writ of habeas corpus (Dkt.