United States District Court, W.D. Washington, Seattle
DEBRA A. CANADY, Petitioner,
TAMI JO AIKEN, Respondent.
REPORT AND RECOMMENDATION
Alice Theiler United States Magistrate Judge
AND SUMMARY CONCLUSION
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).
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Appeals, and the Court of Appeals issued an unpublished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.)
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.)
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
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.(See Dkts. 1, 4.)
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).
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.
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,
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.)
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