Opinion
3:23-cv-05036-TMC-TLF
11-01-2024
BRIAN GLENN COX, Petitioner, v. JASON BENNETT, Respondent.
ORDER ON REPORT AND RECOMMENDATION
TIFFANY M. CARTWRIGHT, UNITED STATES DISTRICT JUDGE
The Court, having reviewed the Report and Recommendation of Judge Theresa L. Fricke, United States Magistrate Judge, Petitioner Brian Cox's objections to the Report and Recommendation, and the remaining record, does hereby find and ORDER:
1. The Court adopts the Report and Recommendation except for the recommendation to deny a certificate of appealability.
a. The Court has conducted de novo review of the Report and Recommendation based on Petitioner Cox's objections. Fed.R.Civ.P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
b. Cox first objects that the Magistrate Judge incorrectly determined that the habeas petition is barred by the statute of limitations. Dkt. 38 at 1-8. After
conducting de novo review, the Court agrees with and adopts the Magistrate Judge's analysis. The U.S. Supreme Court has “repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). The Washington Court of Appeals determined as a matter of state law that Cox's time for seeking direct review by the Washington Supreme Court expired on December 9, 2016. Dkt. 13-1 at 225.
c. Cox also objects to the Magistrate Judge's conclusion that his claim is not subject to equitable tolling. After conducting de novo review, the Court agrees with and adopts the Magistrate Judge's conclusion. Even if the discovery of new emails relevant to Cox's Brady claim in August 2017 amounts to an extraordinary circumstance, Cox has not shown that he acted with reasonable diligence and that this extraordinary circumstance prevented him from making a timely filing after learning of the emails' existence. Smith v. Davis, 953 F.3d 582, 589 (9th Cir. 2020) (en banc).
d. Finally, Cox objects to the Magistrate Judge's recommendation that a certificate of appealability be denied. Because the Court finds that reasonable jurists could disagree with its conclusions or conclude the issues presented are adequate to receive further review, the Court declines to adopt that portion of the Report and Recommendation and will grant a certificate of appealability.
2. Petitioner's habeas corpus petition is DENIED with prejudice.
3. The Court GRANTS a certificate of appealability as to whether Cox's petition was timely filed and whether Cox was entitled to equitable tolling.