Opinion
NO: 1:17-CV-3006-RMP
09-28-2017
HECTOR ENRIQUES PEREZ, Petitioner, v. JEFFREY A. UTTECHT, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING HABEAS PETITION
BEFORE THE COURT is a Report and Recommendation ("R&R"), ECF No. 30, filed by Magistrate Judge John Rodgers on June 5, 2017, resolving a motion to dismiss, ECF Nos. 20 and 26, filed by the Washington Attorney General on behalf of Respondent Jeffrey Uttecht. Petitioner timely objected to the R&R. ECF No. 32. Having reviewed the parties' filings, the R&R, and the relevant law, the Court is fully informed.
Mr. Perez argues that he is entitled to tolling of the statute of limitations during the period in which his personal restraint petitions were pending. ECF No. 32 at 3-7. The Court notes that Magistrate Judge Rodgers determined that Mr. Perez's habeas petition would be time-barred even if the statute of limitations were tolled throughout the period when all of the PRPs that Mr. Perez filed. ECF No. 30 at 5.
Mr. Perez further argues that he is entitled to an equitable exception to the statute of limitations because he has made a credible showing of actual innocence. ECF No. 32 at 20. Mr. Perez relies on a Washington state appellate decision, State v. Wilson, 174 Wn. App. 328 (2013), discussing expert witness testimony about a physical virginity examination of a minor who allegedly had been the victim of sexual assault. See ECF Nos. 1 at 7-9; 32 at 20. Although not explicit about how the expert witness opinion and evidence discussed in Wilson amounts to a showing of actual innocence, Mr. Perez suggests that the absence of such evidence in his case resulted in his conviction. Id.
The Court finds no persuasive showing of actual innocence in Mr. Perez's habeas petition or objection to support equitable tolling of the time-bar. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (requiring that a petitioner who seeks actual innocence relief from a statute of limitations to offer new, reliable evidence and "show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence"). Therefore, the Court adopts the Report and Recommendation, ECF No. 30, in its entirety.
Accordingly, IT IS HEREBY ORDERED that Respondent's Motion to Dismiss, ECF No. 20, is GRANTED, and Petitioner's Petition for Writ of Habeas Corpus, ECF No. 1, is DISMISSED.
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order and provide copies to Petitioner and counsel for Respondent and close the file.
The District Court Clerk is directed to enter this Order and provide copies to counsel.
DATED September 28, 2017.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge