1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 HANOI BARBARO ACOSTA, 9 Petitioner, CASE NO. 20-920-RSM 10 v. ORDER ADOPTING REPORT AND RECOMMENDATION AND 11 TJ WATSON, DISMISSING CASE 12 Respondent.
13 I. INTRODUCTION 14 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 15 Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #8. Petitioner Hanoi Barbaro 16 Acosta, proceeding pro se, petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254 17 to challenge his state court convictions. Dkt. #1. The R & R recommends that the Court deny the 18 habeas petition, deny Petitioner’s motion for discovery and an evidentiary hearing, and dismiss 19 the case with prejudice. Dkt. #8. Having considered the R & R, Plaintiff’s Objections, Dkt. #12, 20 and the remainder of the record, the Court approves and adopts the R & R and dismisses this case 21 with prejudice without issuing a Certificate of Appealability. 22 // 23 // ORDER ADOPTING REPORT AND 1 II. BACKGROUND 2 On October 11, 1996, Petitioner was sentenced in King County Superior Court to 110 3 months imprisonment for attempted robbery and robbery in the first degree. Dkt. #4 at 1. 4 Petitioner claims he did not appeal his judgment and did not file a petition for writ of certiorari to 5 the U.S. Supreme Court. His memorandum of law in support of his petition states that he was
6 released from state custody in 2004.1 Dkt. #1-3 at 13. It further states that in 2008, Petitioner was 7 convicted in federal court for charges related to transportation of a minor for purposes of 8 prostitution and is currently in federal custody. Id. He claims that the 1996 state court robbery 9 convictions were used to enhance his sentence. Id. 10 On August 29, 2019, Petitioner collaterally challenged his state court conviction by filing 11 a personal restraint petition (“PRP”) in the Washington Court of Appeals alleging denial of 12 effective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010), and denial of due 13 process under the Fifth Amendment. Dkt. #4 at 3. On March 6, 2020, the Washington Court of 14 Appeals denied his PRP for failure “to establish an arguable basis for collateral relief in fact or
15 law. . . .” Dkt. #4-1 at 8. Plaintiff subsequently sought review by the Washington Supreme Court, 16 which denied review on May 19, 2020. Id. at 3-5. 17 On June 24, 2020, Judge Tsuchida issued an R & R concluding that Petitioner’s habeas 18 petition should be dismissed, given that (1) it was filed past the one-year statute of limitations for 19 habeas petitions and not subject to equitable tolling; and (2) his ineffective assistance of counsel 20 claim under Padilla is barred by Teague v. Lane, 489 U.S. 288 (1989). Dkt. #8. The R & R also 21
22 1 It is not apparent to the Court that Petitioner may seek habeas relief under § 2254 related to his 1996 state court convictions, given that he is now held in federal custody for a separate conviction and no longer “a person in custody pursuant to the judgment of a State court . . . .” See 28 U.S.C. § 2254(a). 23 However, because the R & R correctly determined that Petitioner’s habeas petition is time-barred, the Court need not reach this issue. ORDER ADOPTING REPORT AND 1 found no basis to grant discovery or conduct an evidentiary hearing, and recommended denial of 2 a certificate of appealability. Id. Petitioner filed Objections on August 3, 2020. Dkt. #12. 3 III. DISCUSSION 4 A. Legal Standard 5 A district court has jurisdiction to review a Magistrate Judge’s report and recommendation
6 on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any 7 part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the 8 court may accept, reject, or modify, in whole or in part, the findings or recommendations made 9 by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of 10 the report and recommendation to which specific written objection is made. United States v. 11 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 12 B. Petitioner’s Habeas Petition is Time-Barred 13 The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 14 Stat. 1214 (“AEDPA”), imposes a one-year statute of limitations for state prisoners filing federal
15 petitions for habeas corpus. See 28 U.S.C. § 2244(d)(1). The one-year limitation period “shall 16 apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment 17 of a State court.” The limitation period runs from “the date on which the judgment became final 18 by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 19 2244(d)(1)(A). Furthermore, “[t]he time during which a properly filed application for State 20 post-conviction or other collateral review with respect to the pertinent judgment or claim is 21 pending shall not be counted toward any period of limitation under this subsection.” Id. § 22 2244(d)(2). 23
ORDER ADOPTING REPORT AND 1 The R & R determined that Petitioner’s limitations period on his habeas claim related to 2 the 1996 convictions expired in 1998, given that his judgment became final for purposes of the 3 federal habeas statute of limitations in February 1997. Dkt. #8 at 5. In his Objections, Petitioner 4 argues that his petition is not untimely given that (1) failure to review his claims would result in a 5 miscarriage of justice; and (2) the Washington state court ignored the time bar by considering his
6 PRP, thereby allowing this Court to consider his petition. Dkt. #12 at 3-4, 9-13. The Court will 7 address each objection in turn. 8 First, Petitioner argues that he may overcome the procedural bar if he demonstrates (a) 9 cause for the default and actual prejudice would result; or (b) failure to review the claims would 10 “result in a fundamental miscarriage of justice.” Dkt. #12 at 3 (citing Coleman v. Thompson, 501 11 U.S. 722, 750 (1999). Petitioner asks the Court to apply the “miscarriage of justice” exception 12 under Coleman on the basis that “he is actually and factually innocent of the robberies he was 13 accused of in this case.” Id. at 4. The cases he cites address the miscarriage of justice exception 14 to the one-year time bar. See id. at 3-4 (citing Murray v. Carrier, 477 U.S. 478, 485 (1986);
15 McQuiggin v. Perkins, 133 S. Ct. 1924, 1935 (2013)); Mickey v. Ayers, 606 F.3d 1223, 1233 (9th 16 Cir. 2010); Tollett v. Henderson, 411 U.S. 258, 266–67 (1973)). 17 Petitioner’s argument is unavailing.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 HANOI BARBARO ACOSTA, 9 Petitioner, CASE NO. 20-920-RSM 10 v. ORDER ADOPTING REPORT AND RECOMMENDATION AND 11 TJ WATSON, DISMISSING CASE 12 Respondent.
13 I. INTRODUCTION 14 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 15 Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #8. Petitioner Hanoi Barbaro 16 Acosta, proceeding pro se, petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254 17 to challenge his state court convictions. Dkt. #1. The R & R recommends that the Court deny the 18 habeas petition, deny Petitioner’s motion for discovery and an evidentiary hearing, and dismiss 19 the case with prejudice. Dkt. #8. Having considered the R & R, Plaintiff’s Objections, Dkt. #12, 20 and the remainder of the record, the Court approves and adopts the R & R and dismisses this case 21 with prejudice without issuing a Certificate of Appealability. 22 // 23 // ORDER ADOPTING REPORT AND 1 II. BACKGROUND 2 On October 11, 1996, Petitioner was sentenced in King County Superior Court to 110 3 months imprisonment for attempted robbery and robbery in the first degree. Dkt. #4 at 1. 4 Petitioner claims he did not appeal his judgment and did not file a petition for writ of certiorari to 5 the U.S. Supreme Court. His memorandum of law in support of his petition states that he was
6 released from state custody in 2004.1 Dkt. #1-3 at 13. It further states that in 2008, Petitioner was 7 convicted in federal court for charges related to transportation of a minor for purposes of 8 prostitution and is currently in federal custody. Id. He claims that the 1996 state court robbery 9 convictions were used to enhance his sentence. Id. 10 On August 29, 2019, Petitioner collaterally challenged his state court conviction by filing 11 a personal restraint petition (“PRP”) in the Washington Court of Appeals alleging denial of 12 effective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010), and denial of due 13 process under the Fifth Amendment. Dkt. #4 at 3. On March 6, 2020, the Washington Court of 14 Appeals denied his PRP for failure “to establish an arguable basis for collateral relief in fact or
15 law. . . .” Dkt. #4-1 at 8. Plaintiff subsequently sought review by the Washington Supreme Court, 16 which denied review on May 19, 2020. Id. at 3-5. 17 On June 24, 2020, Judge Tsuchida issued an R & R concluding that Petitioner’s habeas 18 petition should be dismissed, given that (1) it was filed past the one-year statute of limitations for 19 habeas petitions and not subject to equitable tolling; and (2) his ineffective assistance of counsel 20 claim under Padilla is barred by Teague v. Lane, 489 U.S. 288 (1989). Dkt. #8. The R & R also 21
22 1 It is not apparent to the Court that Petitioner may seek habeas relief under § 2254 related to his 1996 state court convictions, given that he is now held in federal custody for a separate conviction and no longer “a person in custody pursuant to the judgment of a State court . . . .” See 28 U.S.C. § 2254(a). 23 However, because the R & R correctly determined that Petitioner’s habeas petition is time-barred, the Court need not reach this issue. ORDER ADOPTING REPORT AND 1 found no basis to grant discovery or conduct an evidentiary hearing, and recommended denial of 2 a certificate of appealability. Id. Petitioner filed Objections on August 3, 2020. Dkt. #12. 3 III. DISCUSSION 4 A. Legal Standard 5 A district court has jurisdiction to review a Magistrate Judge’s report and recommendation
6 on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any 7 part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the 8 court may accept, reject, or modify, in whole or in part, the findings or recommendations made 9 by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of 10 the report and recommendation to which specific written objection is made. United States v. 11 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 12 B. Petitioner’s Habeas Petition is Time-Barred 13 The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 14 Stat. 1214 (“AEDPA”), imposes a one-year statute of limitations for state prisoners filing federal
15 petitions for habeas corpus. See 28 U.S.C. § 2244(d)(1). The one-year limitation period “shall 16 apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment 17 of a State court.” The limitation period runs from “the date on which the judgment became final 18 by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 19 2244(d)(1)(A). Furthermore, “[t]he time during which a properly filed application for State 20 post-conviction or other collateral review with respect to the pertinent judgment or claim is 21 pending shall not be counted toward any period of limitation under this subsection.” Id. § 22 2244(d)(2). 23
ORDER ADOPTING REPORT AND 1 The R & R determined that Petitioner’s limitations period on his habeas claim related to 2 the 1996 convictions expired in 1998, given that his judgment became final for purposes of the 3 federal habeas statute of limitations in February 1997. Dkt. #8 at 5. In his Objections, Petitioner 4 argues that his petition is not untimely given that (1) failure to review his claims would result in a 5 miscarriage of justice; and (2) the Washington state court ignored the time bar by considering his
6 PRP, thereby allowing this Court to consider his petition. Dkt. #12 at 3-4, 9-13. The Court will 7 address each objection in turn. 8 First, Petitioner argues that he may overcome the procedural bar if he demonstrates (a) 9 cause for the default and actual prejudice would result; or (b) failure to review the claims would 10 “result in a fundamental miscarriage of justice.” Dkt. #12 at 3 (citing Coleman v. Thompson, 501 11 U.S. 722, 750 (1999). Petitioner asks the Court to apply the “miscarriage of justice” exception 12 under Coleman on the basis that “he is actually and factually innocent of the robberies he was 13 accused of in this case.” Id. at 4. The cases he cites address the miscarriage of justice exception 14 to the one-year time bar. See id. at 3-4 (citing Murray v. Carrier, 477 U.S. 478, 485 (1986);
15 McQuiggin v. Perkins, 133 S. Ct. 1924, 1935 (2013)); Mickey v. Ayers, 606 F.3d 1223, 1233 (9th 16 Cir. 2010); Tollett v. Henderson, 411 U.S. 258, 266–67 (1973)). 17 Petitioner’s argument is unavailing. As this Court has recognized, “[o]nly in an 18 ‘extraordinary case’ may the habeas court grant the writ without a showing of cause or prejudice 19 to correct a ‘fundamental miscarriage of justice’ where a constitutional violation has resulted in 20 the conviction of a defendant who is actually innocent.” Hunt v. Warner, No. C14-1637-RSM, 21 2015 WL 1566041, at *5 (W.D. Wash. Apr. 8, 2015) (quoting Murray, 477 U.S. at 495–96). Here, 22 Petitioner makes no colorable showing of actual innocence. Petitioner therefore fails to 23 demonstrate that his claims are eligible for federal habeas review.
ORDER ADOPTING REPORT AND 1 Plaintiff also objects to the time bar on the basis that a Washington state court considered 2 his PRP on the merits. Dkt. #12 at 9-11 (“If the last state court to which a federal claim is presented 3 ignores a potential state procedural default and reaches the merits of the claim, federal courts may 4 consider the claim.”). In support of this argument, he cites cases addressing consideration of state 5 procedural bars in federal habeas claims. See, e.g., Harris v. Reed, 489 U.S. 255, 256 (1989)
6 (“[P]rocedural default will not bar consideration of a federal claim on habeas review unless the 7 last state court rendering a judgment in the case clearly and expressly states that its judgment rests 8 on a state procedural bar.”); Runningeagle v. Ryan, 686 F.3d 758, 768 (9th Cir. 2012) (“[W]e must 9 determine whether the Arizona courts denied this claim on the merits, or instead determined that 10 the claim was procedurally defaulted under state law.”). Here, the one-year bar is not a state 11 procedural bar—rather, it is a federal statute of limitations imposed by the AEDPA. See 28 U.S.C. 12 § 2244(d)(1). For that reason, Petitioner’s objection related to state procedural bars is inapposite. 13 The remainder of Petitioner’s objections address his ineffective assistance of counsel claim 14 and the retroactivity of Padilla. See Dkt. #12 at 2, 4-9. Having determined that the Petition is
15 untimely in the first instance, the Court need not address the remaining objections. 16 C. Request for Discovery and Evidentiary Hearing 17 Petitioner also objects to the R & R’s recommendation to deny an evidentiary hearing and 18 discovery. Dkt. #12 at 2. The Court finds that Petitioner is not entitled to an evidentiary hearing 19 in this matter because the Petition, files, and totality of the record conclusively demonstrate that 20 his petition is time-barred. See 28 U.S.C. § 2254(e)(2). For that reason, his request for discovery 21 and an evidentiary hearing, Dkt. #6, is properly denied. See also Kemp v. Ryan, 638 F.3d 1245, 22 1269 (9th Cir. 2011) (When a habeas petitioner is not entitled to an evidentiary hearing, then a 23 request for discovery is futile).
ORDER ADOPTING REPORT AND 1 D. Certificate of Appealability 2 Finally, Petitioner objects to the R & R’s recommendation to deny issuance of a COA. 3 The Court finds that no reasonable jurist would disagree that this habeas petition is time-barred. 4 See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For that reason, the Court finds no basis to 5 issue a COA in this case.
6 IV. CONCLUSION 7 Having reviewed the Report and Recommendation of the Honorable Brian A. Tsuchida, 8 United States Magistrate Judge, Petitioner’s Objections, and the remainder of the record, the 9 Court finds and ORDERS: 10 (1) The Court ADOPTS the Report and Recommendation, Dkt. #8. 11 (2) The habeas petition is DISMISSED with prejudice, and issuance of a certificate of 12 appealability is DENIED. 13 (3) The Clerk is directed to send copies of this Order to Petitioner. 14
15 Dated this 27th day of October, 2020. 16 17 A 18 RICARDO S. MARTINEZ 19 CHIEF UNITED STATES DISTRICT JUDGE
21 22 23 ORDER ADOPTING REPORT AND