United States District Court, W.D. Washington, Tacoma
Dated: October 11, 2019
REPORT AND RECOMMENDATION
W. Christel United States Magistrate Judge
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
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.
26, 2019, Petitioner filed this Petition pursuant to §
2254. 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.
Statute of Limitations
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).
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.
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.
record reflects the Petition was filed after the statute of
limitations had run, the Petition is untimely.
Statutory and Equitable Tolling
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 ...