Opinion
Case No. C07-5319RJB.
October 26, 2007
REPORT AND RECOMMENDATION
This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules MJR 3 and 4. Respondent has filed a motion to dismiss in lieu of an answer and shows this petition to be several years time barred (Dkt. # 13). Petitioner has not responded to the motion.
The court recommends the petition be DISMISSED WITH PREJUDICE AS TIME BARRED.
PROCEDURAL FACTS
In 1989, Petitioner was convicted in Kitsap County of one count of aggravated first degree murder. He was sentenced to life without the possibility of parole (Dkt. # 13, page 1). He filed a direct appeal which was denied February 15, 1991, (Dkt. # 13, page 3). Petitioner moved for discretionary review and review was denied June 4, 1991, (Dkt # 13, exhibit 5).Just over fourteen years later, on January 20, 2006, petitioner filed a Personal Restraint Petition. The Washington State Court of Appeals dismissed the petition as untimely on October 13, 2006, (Dtk # 13, Exhibit 9). A motion for discretionary review was denied January 10, 2007, (Dkt. # 13, exhibit 11).
EVIDENTIARY HEARING
If a habeas applicant has failed to develop the factual basis for a claim in state court, an evidentiary hearing may not be held unless (A) the claim relies on (1) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable, or there is (2) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2) (1996). Petitioner's claims rely on established rules of constitutional law. Further, petitioner has not set forth any factual basis for his claims that could not have been previously discovered by due diligence. Finally, the facts underlying petitioner's claims are insufficient to establish that no rational fact finder would have found him guilty of the crime. Therefore, petitioner is not entitled to an evidentiary hearing.
STANDARD
Federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). Section 2254 is explicit in that a federal court may entertain an application for writ of habeas corpus "only on the ground that [the petitioner] is in custody in violation of the constitution or law or treaties of the United States." 28 U.S.C. § 2254(a) (1995). The Supreme Court has stated many times that federal habeas corpus relief does not lie for errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990);Pulley v. Harris, 465 U.S. 37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991).
Further, a habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in the state courts 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; 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 courts. 28 U.S.C. § 2254(d). A determination of a factual issue by a state court shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
DISCUSSION
One Year Statute of Limitations.
A one year statute of limitations was imposed under the 1996 amendments to 28 U.S.C. § 2244(d), which were signed into law April 24, 1996 as part of the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Petitioner was convicted before the 1996 amendments to 28 U.S.C. § 2244(d). The one year time frame for filing a Federal Habeas Corpus petition in his case began April 24, 1996, and ran until April 25, 1997. Petitioner filed no challenge to his petition in state court during this time frame that would have tolled the running of the one year time frame. This petition is time barred and should be DISMISSED WITH PREJUDICE.
CONCLUSION
This petition is time barred. Accordingly, the petition should be DISMISSED WITH PREJUDICE.Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on October 26, 2007, as noted in the caption.