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Sullivan v. Uttecht

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

September 18, 2019

RONALD S SULLIVAN JR, Petitioner,
v.
JEFFREY A UTTECHT Respondent.

          Noting Dated: October 11, 2019

          REPORT AND RECOMMENDATION

          David W. Christel United States Magistrate Judge

         The District Court has referred this action to United States Magistrate Judge David W. Christel. Petitioner Ronald S. Sullivan Jr. filed his federal habeas Petition (“Petition”), pursuant to 28 U.S.C. § 2254, seeking relief from his state court convictions and sentence. See Dkt. 6. The Court concludes the Petition is time-barred and recommends the Petition be dismissed with prejudice.

         BACKGROUND

         Petitioner is in custody under a state court judgment and sentence imposed for his conviction by guilty plea for rape of a child in the first degree and two counts of child molestation in the first degree. Dkt. 10, Exhibit 1. The superior court sentenced Petitioner on March 23, 2018. Dkt. 10, Exhibit 1. Petitioner did not appeal his judgment and sentence in state court. Dkts. 6, 10.

         On May 26, 2019, Petitioner filed this Petition pursuant to § 2254.[1] Dkts. 1, 6. Petitioner raises four grounds for relief all based on his claim he is unlawfully detained, and the State of Washington does not have jurisdictional authority to decide federal matters. Dkt. 6. On July 31, 2019, Respondent filed an Answer, wherein he maintains the Petition is time-barred and should be dismissed with prejudice. Dkt. 9. Petitioner filed a “Response to the Order to Show Cause, ” which the Court construes as a Traverse. Dkt. 11.

         I. Discussion

         A. Statute of Limitations

         Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which is codified at 28 U.S.C. § 2241 et seq., a one-year statute of limitations applies to federal habeas petitions. Section 2244(d)(1)(A) requires a prisoner to file a habeas petition within one year of “the date on which the [state court] judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review.” If during the limitations period a “properly filed application for state post-conviction or other collateral review . . . is pending, ” the one-year period is tolled. 28 U.S.C. § 2244(d)(2); see Pace v. DiGulielmo, 544 U.S. 480, 410 (2005).

         If a petitioner fails to petition the state's highest court for review, the conviction becomes final when the time for seeking such review elapses. See Wixom v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001). In Washington, notice of appeal must be filed in the trial court 30 days after the entry of the decision of the trial court. Wash. RAP 5.2(a). Thus, if a petitioner does not file a direct appeal, the state court judgment becomes final at the end of the thirty-day period. See id; 28 U.S.C. § 2244(d)(1)(A).

         Petitioner's judgment and sentence was filed by the clerk on March 23, 2018, and he did not file a direct appeal challenging his convictions and sentence. Dkts. 6, 10. Thus, Petitioner's judgment and sentence was final on April 23, 2018, the date the time for filing a direct appeal expired. See Wash. RAP 5.2(a). The AEDPA limitations period began running on April 24, 2018. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (AEDPA limitations period begins to run the day after the conviction is final). The one-year statute of limitations expired on April 24, 2019. Petitioner did not file the Petition until May 26, 2019, which was 32 days after the limitations period expired. See Dkts. 1, 6.

         As the record reflects the Petition was filed after the statute of limitations had run, the Petition is untimely.

         B. Statutory and Equitable Tolling

         The AEDPA limitations period is tolled for any properly filed collateral state challenge to the pertinent judgment or claim. 28 U.S.C. § 2244(d)(2). However, Petitioner did not a collateral ...


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