Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Canady v. Aiken

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

September 10, 2019

DEBRA A. CANADY, Petitioner,
v.
TAMI JO AIKEN, Respondent.

          REPORT AND RECOMMENDATION

          Mary Alice Theiler United States Magistrate Judge

         INTRODUCTION AND SUMMARY CONCLUSION

         This is a federal habeas action filed under 28 U.S.C. § 2254. Petitioner Debra Canady seeks to challenge in this action her 2009 Snohomish County Superior Court judgment and sentence. (See Dkt. 4.) Respondent has filed an answer to the petition together with relevant portions of the state court record. (Dkts. 18, 19.) Respondent argues in her answer that petitioner's federal habeas petition is untimely under 28 U.S.C. § 2244(d). (See Dkt. 18.) Petitioner has filed no response to respondent's answer. This Court, having reviewed petitioner's petition, respondent's answer thereto, and the state court record, concludes that this federal habeas action should be dismissed as untimely under § 2244(d).

         BACKGROUND

         On May 14, 2009, petitioner was found guilty, following a jury trial, on a charge of first degree murder with a deadly weapon enhancement. (See Dkt. 19, Ex. 1 at 1.) Petitioner was sentenced on June 2, 2009 to a total term of 336 months confinement. (Id., Ex. 1 at 6.) Petitioner appealed her conviction to the Washington Court of Appeals, and the Court of Appeals issued an unpublished opinion affirming petitioner's conviction on April 18, 2011. (See id., Exs. 2-4.) Petitioner thereafter sought review by the Washington Supreme Court. (Id., Ex. 5.) The Supreme Court denied review without comment on November 3, 2011. (Id., Ex. 6.)

         On November 26, 2012, petitioner filed a personal restraint petition in the Washington Court of Appeals. (Id., Ex. 7.) The Acting Chief Judge of the Court of Appeals issued an order dismissing the petition on January 23, 2013. (Id., Ex. 8.) Petitioner thereafter sought review by the Washington Supreme Court, and the Supreme Court Commissioner issued a ruling denying review on October 1, 2013. (Id., Exs. 9, 10.) Petitioner moved to modify the Commissioner's ruling, and the Chief Justice of the Supreme Court denied the motion on January 8, 2014. (Id., Exs. 11, 12.)

         On July 16, 2018, petitioner filed a second personal restraint petition in the state courts. (Id., Ex. 13.) The Acting Chief Judge of the Washington Court of Appeals issued an Order dismissing the petition on September 7, 2018. (Id., Ex. 14.) Petitioner apparently did not seek any further review by the Washington Supreme Court following the Court of Appeals' dismissal of her second personal restraint petition.

         Petitioner now seeks federal habeas review of her conviction. Petitioner signed her federal habeas petition on June 25, 2018, and the Court received the petition for filing on July 6, 2018.[1](See Dkts. 1, 4.)

         DISCUSSION

         The Antiterrorism and Effective Death Penalty Act (AEDPA) established a one-year limitation period for state prisoners to file applications for federal habeas relief. See 28 U.S.C. § 2244(d)(1). The one-year limitation period generally begins to run from the date of the conclusion of direct review or “the expiration of the time for seeking such [direct] review, ” whichever is later. 28 U.S.C. § 2244(d)(1)(A). In this case, the period for direct review ended, at the latest, upon the expiration of the period for filing a petition for writ of certiorari with the United States Supreme Court. See Bowen v. Roe 188 F.3d 1157, 1158-59 (9th Cir. 1999).

         The Washington Supreme Court denied petitioner's petition for review on direct appeal on November 3, 2011. (Dkt. 19, Ex. 6.) Petitioner had 90 days following the entry of that ruling (as opposed to the issuance of the state mandate), or until approximately February 1, 2012, to file a petition for writ of certiorari with the United States Supreme Court. See Rules 13.1 and 13.3 of the Rules of the Supreme Court of the United States. Because petitioner apparently did not file a petition for writ of certiorari, her conviction became final on or about February 1, 2012. See 28 U.S.C. § 2244(d)(1)(A). Petitioner's one-year statute of limitations began to run on the following day. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002).

         The one-year limitation period is tolled for any “properly filed” collateral state challenge to the state conviction. 28 U.S.C. § 2244(d)(2). Petitioner filed a timely personal restraint petition in the Washington Court of Appeals on November 26, 2012, which stopped the clock on the federal statute of limitations. At that time, 299 days had run on the statute of limitations. The Washington Supreme Court issued its order denying petitioner's motion to modify the Commissioner's ruling in petitioner's personal restraint proceedings on January 8, 2014, thus concluding review in the state courts. The statute of limitations began to run again the following day, January 9, 2014, and expired 66 days later on March 16, 2014.[2]

         Petitioner signed her petition for writ of habeas corpus on June 25, 2018, over four years after the statute of limitations expired. Thus, petitioner's petition is clearly untimely under the federal statute of limitations. Petitioner does not argue otherwise. In fact, petitioner acknowledges in her petition and in her supporting materials that the AEDPA statute of limitations long ago expired. (See Dkt. 4 at 8, 13; Dkt. 4-2 at 19.) Petitioner asserts, however, that she is entitled to an exception to the statute of limitations based on her actual innocence. (See id.)

         The United States Supreme Court has held that there is an equitable exception to the AEDPA statute of limitations for a credible showing of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The Supreme Court has cautioned, however, that tenable actual innocence claims are rare. Id. “[A] petitioner does not meet the threshold requirement unless [s]he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find h[er] guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup standard is demanding and rarely met). In order to make a credible claim of actual innocence, a petitioner must “support h[er] allegations of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.