Opinion
C20-0996-JCC
04-28-2022
MICHIEL GLEN OAKES, Petitioner, v. DONALD R. HOLBROOK, Respondent. Method 1: Run limitations period from when state judgment became final Method 2: Apply equitable tolling all the way through the First PRP Smith's Unsuccessful Argument in Smith v. Davis
ORDER
JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Petitioner's objections (Dkt. No. 39) to the Report and Recommendation (“R&R”) of the Honorable Michelle L. Peterson, U.S. Magistrate Judge (Dkt. No. 38) recommending dismissal with prejudice of his habeas petition (Dkt. Nos. 1, 7); and on Petitioner's motion for a certificate of appealability (“COA”), (Dkt. No. 40). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby OVERRULES Petitioner's objections, ADOPTS the R&R, DISMISSES the petition with prejudice, and GRANTS the motion for a COA for the reasons explained below.
I. BACKGROUND
Petitioner is a state prisoner serving a sentence for the murder in the first degree; he filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. (See generally Dkt. Nos. 1, 1-1.) The R&R and, consequently, Petitioner's objections to it, depend principally on the procedural timeline of the underlying criminal case and state collateral attack proceedings. The Court thus recounts the relevant information in bullet-point format:
A. Direct Review
• November 30, 2010 - The state trial court sentenced petitioner to 320 months in prison. (Dkt. No. 15-1 at 5.)
• December 2, 2015 - The Washington Court of Appeals affirmed Petitioner's conviction, and the Washington Supreme Court denied discretionary review. (See id. at 244, 362.)
• January 15, 2016 - The Court of Appeals' mandate issued, terminating direct review. (Id. at 364.)
• March 1, 2016 - The federal statute of limitations for seeking habeas relief began to run, upon expiration of the deadline to seek review from the U.S. Supreme Court.
See Part II.A, below.
B. First PRP
• January 17, 2017 - This was the last day under state law that Petitioner could file a personal restraint petition (“PRP”) collaterally attacking his conviction, one year from issuance of the appellate mandate. His former counsel, Barbara Corey (deceased), mailed a PRP (“First PRP”) to the Court of Appeals. (See Dkt. No. 23 at 197-99.)
See RCW 10.73.090(1) (“No petition . . . for collateral attack on a judgment . . . in a criminal case may be filed more than one year after the judgment becomes final ....”).
In a declaration, Ms. Corey's legal assistant asserts that the Court of Appeals' clerk told him “that a timely postmarked USPS mailing of the PRP . . . would suffice as showing timely filing.” (Dkt. No. 23 at 197.) But see Wash. RAP 18.6(c).
• January 18, 2017 - The Court of Appeals received and filed the First PRP. (Dkt. Nos. 151 at 366, 23 at 197-99); see also Wash. RAP 18.6(c) (in general, a document “is timely filed only if it is received by the appellate court within the time permitted for filing.”).
• June 11, 2018 - The Court of Appeals denied the First PRP as untimely and held in the alternative that, regardless of timeliness, it failed on the merits. (Dkt. No. 23 at 223-33.)
• January 15, 2019 - The Washington Supreme Court denied Petitioner's request for discretionary review because the First PRP was untimely. (Id. at 235, 396-98.)
The Washington Supreme Court employs commissioners, who adjudicate certain procedural motions, including requests for discretionary review. See Wash. SAR 15(c). For convenience, this order refers to the “Washington Supreme Court” even to describe commissioner rulings.
• April 3, 2019 - The Washington Supreme Court denied Petitioner's motion to modify the January 2019 decision denying review. (Id. at 458.)
• May 10, 2019 - The Court of Appeals' mandate issued on the First PRP. (Id. at 460.)
C. Second PRP and Federal Habeas Action
• June 4, 2020 - Petitioner's current counsel filed another PRP (the “Second PRP”) in the Washington Supreme Court. (Dkt. No. 24 at 2.) The Second PRP argued that Petitioner's Brady claim was exempt from normal PRP time limits and, because the Court of Appeals had not considered its merits in ruling on the First PRP, could be re-asserted in the Second PRP. (See id. at 28-33. But see Dkt. No. 23 at 227-33 (holding in the alternative that the First PRP failed on the merits).)
• June 26, 2020 - Petitioner filed this federal habeas action, and the Magistrate Judge stayed the case pending resolution of the Second PRP. (Dkt. Nos. 1, 9.)
• February 24, 2021 - The Washington Supreme Court dismissed the Second PRP as untimely and successive, explaining that the Court of Appeals in fact had considered the Brady claim on the merits in its alternative holding when it dismissed the First PRP. (Dkt. No. 24 at 1004-06.)
D. The R&R
In June 2021, the Court lifted the stay in this federal habeas case; the parties submitted additional materials from the state court record, filed additional briefs, and Magistrate Judge Peterson issued the R&R. (See generally Dkt. No. 13, et seq.; Dkt. No. 38.)
The R&R reasons that the one-year time limit to seek federal habeas relief expired on March 1, 2017, and that statutory tolling did not apply because the First PRP was untimely and thus not “properly filed” as required for statutory tolling. (Dkt. No. 38 at 5-6 (citing 28 U.S.C. § 2444(d)(1)(A), (d)(2)).) The R&R also concludes that Ms. Corey's conduct in filing the First PRP a day late was not sufficiently egregious to qualify as “extraordinary circumstances” justifying equitable tolling. (Id. at 7-9 (citing Luna v. Kernan, 784 F.3d 796, 799 (9th Cir. 2003) (“[R]un-of-the-mill mistakes by one's lawyer that cause a filing deadline to be missed do not rise to the level of extraordinary circumstances.”)).)
II. DISCUSSION
A. Objections to the R&R
A district court must conduct a de novo review of those portions of a magistrate judge's R&R to which a party properly objects. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). A party properly objects by filing “specific written objections” to the R&R as required under Federal Rule of Civil Procedure 72(b)(2).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a state prisoner to bring a federal habeas action within a year after the criminal judgment becomes final. See 28 U.S.C. § 2244(d)(1)(A). Here, this happened upon expiration of the deadline for seeking review in the United States Supreme Court. See id. That deadline fell 90 days after the Washington Supreme Court denied review on December 2, 2015. See S.Ct. R. 13.1. Thus, the statute of limitations began to run on March 1, 2016, and it expired on March 1, 2017. Petitioner did not file this case until June 2020, well after that.
However, the limitations period tolls while a “properly filed” state petition for postconviction review is pending. 28 U.S.C. § 2244(d)(2). Under state law, however, the First PRP was a day late. See RCW 10.73.090(1); Wash. RAP 18.6(c); (Dkt. Nos. 15-1 at 366, 23 at 19799). The First PRP was thus not “properly filed” and could not pause the limitations period. Artuz v. Bennett, 531 U.S. 4, 8 (2008) (a petition for postconviction relief is “properly filed” if it complies with state procedural rules for filings).
Because statutory tolling is unavailable, Petitioner and Judge Peterson focus chiefly on equitable tolling. (See Dkt. Nos. 38 at 6-12; 39 at 4-12.) Equitable tolling requires Petitioner to show that (1) he has been diligently pursuing his rights, and (2) some extraordinary circumstance “stood in his way” and prevented timely filing. See Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en banc). Petitioner's primary objection is that the R&R erred in concluding that Ms. Corey's tardy filing of the First PRP, and related conduct, was not sufficiently egregious to constitute “extraordinary circumstances” that justify equitable tolling. (See Dkt. No. 39 at 511.)
Petitioner's evidence of Ms. Cory's conduct consists mostly of partially redacted email messages, not with Ms. Cory but with Petitioner's brother, who apparently acted as an intermediary. (See Dkt. No. 29 at 19-83.) Still, these emails suggest that Ms. Corey indeed failed to meet the level of diligence and responsiveness that attorneys are expected to meet (See id.) This Court does not resolve, however, whether her conduct amounts to “extraordinary circumstances” for equitable tolling purposes.
As the R&R points out, however, whether Ms. Corey's conduct was sufficiently egregious to demonstrate extraordinary circumstances is ultimately beside the point:
[E]ven if the Court were able to find extraordinary circumstances based on Ms. Corey's actions sufficient to warrant equitable tolling of the time prior to Petitioner's [F]irst PRP deadline and while it remained pending, Petitioner's federal habeas petition was stile filed well over a year after the May 10, 2019 mandate terminating review of his [F]irst PRP.(Dkt. No. 38 at 11.) Petitioner disagrees, asserting that the Brady claims raised in his First PRP were statutorily exempt from Washington's one-year PRP deadline and thus, because Washington courts cannot consider PRPs where time-barred claims are asserted alongside timeexempt claims as apparently happened here, they had to be re-filed in the Second PRP or else this Court would have held he had not exhausted them. (Dkt. No. 39 at 11-12 (citing Dkt. No. 23 at 398; In re Hankerson, 72 P.3d 703, 705-06 (Wash. 2003)).)
This argument is wrong for at least two reasons. First, as the Washington Supreme Court pointed out, the Court of Appeals already considered the merits of Petitioner's Brady claim (albeit in a somewhat cursory fashion) when it rejected the First PRP; so state law barred him from raising it again in the Second PRP. (Dkt. No. 24 at 1005-06.)
Second, the argument about the Brady claim being deadline-exempt under state law is non-responsive to the R&R's reasoning: After the appellate mandate issued on May 10, 2019, to terminate review of the First PRP, (Dkt. No. 23 at 460), Petitioner waited more than a year before filing this federal habeas action, (see Dkt. No. 1.) So, even if he were correct that Ms. Corey's filing the First PRP a day late was an extraordinary circumstance, his federal lawsuit would still be untimely no matter how one slices it. (See Dkt. No. 41 at 9-10; Method 1 and Method 2, below).
Method 1: Run limitations period from when state judgment became final
Date
Event
Days left
March 1, 2016
Limitations period starts to run
365
January 17, 2017
Equitable tolling begins
322
May 10, 2019
Tolling ends upon termination of review of First PRP
322
June 26, 2020
Filing of federal habeas action
-91
Method 2: Apply equitable tolling all the way through the First PRP
Date
Event
Days left
March 1, 2016
Equitable tolling begins
365
May 10, 2019
Limitations period begins upon termination of review of First PRP
365
June 26, 2020
Filing of federal habeas action
-48
Furthermore, the above calculations are based on the so-called “stop-clock” method of applying equitable tolling to the AEDPA statute of limitations. The Ninth Circuit in Smith v. Davis rejected that approach in favor of one that requires petitioners to show, in essence, why they could not file their federal habeas lawsuits sooner than they actually did-even if there are no longer extraordinary circumstances impeding their ability to file.
In Smith, the court rejected Smith's argument that the limitations period should have been tolled for 66 days during which his former attorney withheld his case file and did not respond to Smith's communications. 953 F.3d at 586-87, 600; (see also “Smith's Argument” chart, below).
Smith's Unsuccessful Argument in Smith v. Davis
Date
Event
Days left
June 10, 2014
Limitations period starts to run
365
August 15, 2014
Smith's attorney tells him the state appeal was denied and returns the appellate record
365 (66 days tolled)
August 14, 2015
Tolling ends upon termination of review of First PRP
1
After examining congressional intent and Supreme Court precedent, the Ninth Circuit held that, to demonstrate the “diligence” required for equitable tolling, a petitioner must show reasonable diligence “not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Id. at 600. The court held that Smith-whose habeas petition consisted of minimally altered versions of arguments he had previously made in state appellate courts-had not shown the requisite diligence. Id. at 600-01. Said the Court:
The problem . . . is not simply that he took 364 days after receiving his case file to file his habeas petition. We have no trouble imaging [sic] a circumstance where a petitioner is impeded from working on a habeas petition for two months, but . . . uses the next 364 days diligently, files his petition, and has the entire two months . . . equitably tolled. What reasonable diligence would look like . . . varies based on . . . the case, but in every instance . . . [it] seemingly requires the petitioner to work on his petition with some regularity-as permitted by his circumstances- until he files it in the district court. The problem with Smith's request for equitable tolling is that when given the opportunity to explain how he had used his time diligently after receiving his file from his attorney . . ., Smith made no allegation . . . that he had acted diligently but had not been able to file earlier.Id.
Just as in Davis, Petitioner has not explained how he used the time after the alleged impediment to timely filing (his former attorney's neglect) ended-that is, why he was unable to file this case for 413 days after review terminated on the First PRP. (See Dkt. Nos. 35 at 2-3; 39 at 5-6.) It is no answer to point to the Second PRP because he filed that action only three weeks before this one-still 391 days after review terminated on the First PRP.
Petitioner's theory, however, is that unlike in Davis, the alleged impediment to filing never really ended. (See Dkt. Nos. 35 at 2; 39 at 8-9.) If exhausting a ground for federal habeas relief requires filing a state postconviction proceeding and that proceeding takes longer than is left in the federal limitations period, then belatedly filing the state petition will immediately doom any subsequent federal habeas action. If the state petition is withdrawn, the ground is unexhausted; if it proceeds, there will be no statutory tolling under § 2244(d)(2). Therefore, Petitioner's argument posits, if extraordinary circumstances prevent a timely filing in state court, those circumstances remain an impediment to timely filing a federal petition (even after the state proceeding ends) up until the federal petition is actually filed. (See Dkt. Nos. 35 at 2; 39 at 8-9.)
This might be so, for example, if the ground is based on new evidence or otherwise could not be presented on direct review. See 28 U.S.C. § 2254(d) (state remedies are not exhausted if state law provides an available procedure to raise the question presented).
The Court disagrees. Petitioner's argument has no limiting principle. Accepting it would mean his petition could still be timely even if he waited five years after the First PRP ended. Moreover, it conflicts with the rationale described in Smith for requiring courts to evaluate a petitioner's diligence “before, during, and after” the existence of an extraordinary circumstance. See 953 F.3d at 595 (emphasis added). Petitioner's objections are thus OVERRULED.
B. Certificate of Appealability
“[W]hen a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, ” a certificate of appealability (“COA”) can issue only if the petitioner shows that jurists of reason would find it debatable whether (1) the district court was correct in its procedural ruling, and (2) the petition states a valid claim of the denial of a constitutional right. Carter v. Davis, 946 F.3d 489, 522 (9th Cir. 2019) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted).
It may be that jurists of reason could debate whether Ms. Corey's representation amounted to extraordinary circumstances to warrant tolling. But that is ultimately beside the point because, as the analysis above illustrates, Ms. Corey's conduct does not even matter if Petitioner fails to account for his activities during the intervening 413 days as Smith seemingly requires. In addressing this issue in a brief he submitted before Judge Peterson issued the R&R, he merely asserted that “[b]ecause the extraordinary circumstances spawned by Ms. Corey's misconduct arose before the statute of limitations expired, they continued until June 26, 2020, ” and because he “was reasonably diligent throughout that period, his petition is timely.” (Dkt. No. 35 at 2 (citing case law, but no record evidence).) His latest submission, too, argues diligence only as to the period before termination of review on the First PRP. (See Dkt. No. 39 at 5.)
However, this case differs from Smith in that Ms. Corey's conduct-sufficiently egregious or not-meant that Petitioner never had a shot at filing a timely federal habeas petition without equitable tolling. Smith, in contrast, still had 299 days left in the federal limitations period when he received his casefile. See Smith, 953 F.3d at 586-87. As explained above, the Court believes this distinction ultimately makes no difference. See id. at 601 (“[R]reasonable diligence . . . requires the petitioner to work on his petition with some regularity-as permitted by his circumstances-until he files it ....”). Still, Petitioner's fact pattern is sufficiently different from Smith that jurists of reason could at least debate-even if not ultimately agree- that the outcome should different than in Smith.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
1. Petitioner's objection (Dkt. No. 39) is OVERRULED.
2. His motion for a certificate of appealability (Dkt. No. 40) is GRANTED.
3. The Court MODIFIES the R&R to incorporate the analysis above and ADOPTS the R&R (Dkt. No. 38) as modified.