Opinion
CASE NO. C02-1951P
January 7, 2003
REPORT AND RECOMMENDATION
I. Introduction and Summary
Now before the Court is petitioner's request for writ of habeas corpus pursuant to 28 U.S.C. § 2254, (Dkt. #1). Petitioner alleges five grounds for habeas relief: 1) petitioner was wrongly required to hire new counsel before being able to fire his appointed counsel; 2) the trial court failed to consider exculpatory voice identification evidence; 3) petitioner's counsel failed to impeach the state's witnesses; 4) petitioner's counsel failed to make an in-camera motion to impeach the victims credibility; and 5) petitioner's counsel failed to object to damaging medical hearsay evidence. Having reviewed the relevant papers, I recommend that the petition be denied.
II. Background
Petitioner was charged with one count of rape in the second degree for engaging in sexual intercourse with K.T. by forcible compulsion. On February 1, 1996, after waiving his right to a jury trial and receiving a bench trial, petitioner was found guilty as charged. The King County Superior Court sentenced petitioner to a sixty-seven month term of imprisonment, followed by an unspecified term of community placement. Petitioner sought review from the Washington Court of Appeals, which affirmed the conviction but remanded the case to Superior Court to specify a term of community placement. The Court of Appeals also dismissed petitioner's personal restraint petition, and the Washington Supreme Court denied review.
III. Standard of Review
A habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in state court unless the adjudication either: 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state court. 28 U.S.C. § 2254(d).
IV. Discussion
In their answer, respondents do not address petitioner's alleged grounds for habeas relief, but instead argue that petitioner failed to file his petition within the one-year statute of limitations period. Moreover, respondents argue that petitioner failed to exhaust his federal claims, thereby rendering the claims procedurally defaulted.
A. Statute of Limitations
A petition for a writ of habeas corpus must be filed within one year of the date that the state court judgment became final (either by the conclusion of direct review or the expiration of the time for seeking such review). 28 U.S.C. § 2244(d)(1)(A). However, that period does not include time during which a state personal restraint petition is pending. Id. at (d)(2). Equitable tolling of the limitations period is permitted "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Court for Cent. Dist. of Calif., 163 F.3d 530, 541 (9th Cir. 1998) (citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996)).
In the present case, the state court judgment became final (by conclusion of direct review) on March 2, 2000. See Administrative Record (Dkt. #9). Ex. 9. Petitioner's personal restraint petition was filed on March 9, 2001, and the court's dismissal of the petition became final on October 19, 2001. See id. at Exs. 10, 16. The present habeas corpus petition was filed on September 13, 2002. Therefore, the present petition was filed two years and six months after the state court's final judgment. Pursuant to 28 U.S.C. § 2244(d)(2), this period is tolled by the seven months that petitioners personal restraint petition was pending in state court. Even with the tolling period, however, the present petition was not filed within the one year limitations period, and petitioner has filed to demonstrate that the petition is entitled to equitable tolling. Thus, the undersigned recommends dismissal of the petition as time-barred.
A petitioner must be notified of a court's intent to dismiss his petition on statute of limitations grounds, and he must be provided an opportunity to respond. Herbst v. Cook, 260 F.3d 1039. 1043 (9th Cir. 2001). However, in an unpublished opinion, the Ninth Circuit suggested that a magistrate judge's Report and Recommendation may provide sufficient notice, and the objection procedures corresponding to the Report and Recommendation may provide a sufficient opportunity to respond. Kelley v. Ducharme, 18 Fed.Appx. 527, 2001 WL 1006099 (9th Cir. 2001). Moreover, as discussed infra, this petition may also be dismissed for a reason unrelated to the statute of limitations.
B. Exhaustion Requirement
Even if the present petition were not time-barred, petitioner failed to exhaust his claims in state court and therefore cannot bring such claims to this Court. A petitioner must exhaust all state remedies before a federal court may grant his petition. 28 U.S.C. § 2254(b)(1). As a general rule, petitioner satisfies the exhaustion requirement if he presents his federal claims to the appropriate state court, in the manner required by sate law, so as to give the state court the opportunity to consider the allegations of legal error. Vasguez v. Hillery, 474 U.S. 254, 257 (1986). A claim is adequately "presented" if petitioner alerts the state court to the Fact that he is asserting a claim under the United States Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Moreover, exhaustion generally requires that the federal claim be raised at all stages of the state's review process, including discretionary state appeals. O'Sullivan v. Boerekel, 526 U.S. 838, 845 (1999). If a claim is not properly exhausted, then it is procedurally defaulted. Id. at 848. If a claim is procedurally defaulted, petitioner may not raise it in federal court unless he demonstrates cause for failing to properly present the claim to state court and actual prejudice resulting from such failure. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
The five alleged grounds for federal habeas relief claimed in the present petition were presented to the Washington Court of Appeals via petitioner's direct appeal and his personal restraint petition. The issue presently before this Court, then, is whether petitioner fairly presented these grounds to the Washington Supreme Court in his motion for discretionary review. His motion for discretionary review did not include any enumerated grounds for relief, but merely quoted the Court of Appeals' order denying his petition. Moreover, the motion stated that he would supply pleadings in support of his petition once the "Court assigns a Cause Number." Administrative Record (Dkt. #9), Ex. 12 at 5. Therefore, it does not appear that petitioner presented any of his federal grounds for relief to the Washington Supreme Court as required. Furthermore, petitioner has not demonstrated cause for failing to do so, nor actual prejudice resulting from such failure. Petitioner failed to exhaust his claims in state court and therefore this Court may not grant his petition.
On direct appeal to the Washington Court of Appeals, petitioner claimed, inter alia, that: 1) he received ineffective assistance of counsel as demonstrated by counsel's failure to object to the admission of a social worker's notes; 2) the court erred by requiring petitioner to hire new counsel before firing his other counsel; 3) petitioner's Sixth Amendment right to confront his accuser was violated: 4) the court erred by admitting exculpatory voice identification evidence; and 5) the court erred by finding the victim credible. See Administrative Record (Dkt. #9), Exs. 4, 6.
In his personal restraint petition before the Washington Court of Appeals, petitioner claimed that: 1) the court applied the wrong burden of proof; 2) petitioner could not have been in the victim's room on the night of the alleged attack; 3) he received ineffective assistance of counsel when counsel failed to introduce evidence of the victim's history of making false accusations; 4) the court erred by failing to appoint counsel; 5) the court's findings lacked factual support; 6) petitioner received ineffective assistance of counsel when his attorney failed to impeach the state's key witnesses; 7) the Department of Corrections retaliated against petitioner when he refused treatment by the department's psychiatrist; and 8) petitioner received ineffective assistance of counsel because his attorney failed to hire expert testimony on voice identification. See id. Ex. 10.
V. Conclusion
For the reasons stated above, I recommend that the petition be denied and that this action be dismissed. A proposed order accompanies this Report and Recommendation.
ORDER
MARSHA J. PECHMAN, United States District Judge
The Court, having reviewed the Petition for Writ of Habeas Corpus, Respondent's Answer, the Report and Recommendation of the honorable Monica J. Benton, United States Magistrate Judge, and the remaining record, finds and Orders as follows:
(1) The Court ADOPTS the Report and Recommendation;
(2) Petitioner's Petition for Writ of Habeas Corpus (Dkt. #1) is DENIED; and this matter is DISMISSED with prejudice;
(3) The Clerk is directed to send copies of this Order to Petitioner, counsel for Respondent, and to the Honorable Monica J. Benton.