1 2 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 3 Mar 11, 2020 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 PARKER MASON BACHTOLD, No. 2:19-CV-00222-SAB 10 Petitioner, 11 v. ORDER DENYING HABEAS 12 RELIEF 13 JERI BOE, 14 Respondent. 15 16 Before the Court is Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of 17 Habeas Corpus by a Person in State Custody, ECF No. 1. 18 Petitioner challenges his 2016 Okanogan County guilty plea to first degree 19 murder, first degree robbery, theft of a motor vehicle, two counts of theft of a 20 firearm and juvenile in possession of a firearm. He plead guilty and was sentenced 21 on August 16, 2016, to 360 months’ incarceration and 36 months community 22 custody. He is serving his sentence at Clallam Bay Corrections Center in Clallam 23 Bay, Washington. 24 Petitioner did not file a direct appeal of his conviction or sentence. On 25 August 7, 2017, he filed a timely Personal Restraint Petition (PRP), asserting 26 judicial misconduct and ineffective assistance of counsel as grounds for relief. The 27 PRP was dismissed on October 1, 2018. He filed a subsequent PRP. It was 28 dismissed on May 7, 2019. On June 27, 2019, Petitioner filed his § 2254 Petition in 1 the Eastern District of Washington. 2 As grounds for federal habeas relief, Petitioner asserts the ineffective 3 assistance of counsel and the failure of the trial court to consider the mitigating 4 factors (i.e., his youth). 5 The State argues that Petitioner’s petition is untimely because he filed it 6 after more than one year of untolled time elapsed since his judgment became final 7 and he has failed to show any basis to excuse his untimely filing on the basis of 8 equitable tolling and failed to present a claim of actual innocence. The State also 9 argues that Petitioner failed to properly exhaust his state remedies because he did 10 not present his claims to the Washington Supreme Court and is now procedurally 11 barred from doing so. 12 In his reply, Petitioner argues the untimeliness of the petition should be 13 excused procedurally because of actual innocence as well as a showing of cause 14 and prejudice. 15 Standard of Review 16 Under AEDPA, relief may only be granted if the state court decision in 17 question was either “contrary to, or involved an unreasonable application of, 18 clearly established Federal law” or was “based on an unreasonable determination 19 of the facts in light of the evidence presented in the State court proceeding.” 28 20 U.S.C. § 2254(d)(1)-(2). 21 Tolling 22 AEDPA sets a one-year statute of limitations for filing a federal habeas 23 petition seeking relief from a state court judgment. 28 U.S.C. § 2244(d)(1). This 24 limitations period is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 25 645 (2010). To receive equitable tolling, “the petitioner must establish two 26 elements: (1) that he has been pursuing his rights diligently, and (2) that some 27 extraordinary circumstances stood in his way.” Ramirez v. Yates, 571 F.3d 993, 28 997 (9th Cir. 2009) (quotations omitted). “The petitioner must additionally show 1 that the extraordinary circumstances were the cause of his untimeliness, and that 2 the extraordinary circumstances made it impossible to file a petition on time” Id. 3 (quotation omitted). 4 The United States Supreme Court has recognized that an “actual innocence” 5 showing provides a gateway past the AEDPA statute of limitations. McQuiggin v 6 Perkins, 569 U.S. 383, 397 (2013). A claim of innocence does not by itself provide 7 a basis of relief. Schlup v. Delo, 513 U.S. 298, 315 (1995). Rather, such claims for 8 relief depend on the validity of the constitutional claims. Id. Thus, a claim of 9 innocence is considered “a gateway through which a habeas petitioner must pass to 10 have his otherwise barred constitutional claim considered on the merits.” Id. 11 “If a petitioner presents evidence of innocence so strong that a court cannot have 12 confidence in the outcome of the trial unless the court is also satisfied that the trial 13 was free of nonharmless constitutional error, the petitioner should be allowed to 14 pass through the gateway and argue the merits of his underlying claims.” Id. 15 AEDPA also provides for statutory tolling during the time “a properly filed 16 application for State post-conviction or other collateral review with respect to the 17 pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 18 Washington Court of Appeals Opinion 19 Petitioner filed a timely PRP. In it, he presented two grounds for relief: (1) 20 his guilty plea should be vacated because the state court judge lacked authority to 21 accept the plea and pronounce sentence after Petitioner filed an affidavit of 22 prejudice against him; and (2) his counsel gave him ineffective assistance. ECF 23 No. 15, Ex. 6. 24 The Washington Court of Appeals noted that there is no constitutional right 25 to the removal of a judge; rather the right is created by statute, relying on In re the 26 Marriage of Lemon 59 Wash. App. 568, 572 (1990). ECF No. 15, Ex. 4. It noted 27 that the mere existence of an affidavit of prejudice in the court file is not enough to 28 divest a judge of authority. Id. Since there was nothing in the record that showed 1 the affidavit was brought to the judge’s attention, the affidavit in the court file did 2 not divest the judge of authority to proceed. Id. 3 The Washington Court of Appeals found the judge did not err in proceeding 4 to sentencing without a presentence report, given that Petitioner was not convicted 5 of a crime where Wash. Rev. Code § 9.94A.500 requires the ordering of a 6 presentence report, and there was not chemical dependency finding. Id. It found 7 that Petitioner’s claim that his counsel was ineffective for not requesting a 8 presentence report was without merit. Id. It also concluded that all his claims of 9 ineffective assistance of counsel were unsupported by any facts or legal argument 10 and amounted to conclusory allegations of deficient performance. Id. 11 Petitioner filed a second PRP with the Washington Court of Appeals. In his 12 PRP, he asserted a variety of claims: (1) he was denied a presentence hearing; (2) 13 ineffective assistance of counsel; (3) the court failed to consider his youth as a 14 mitigating factor; (4) the prosecutor improperly overcharged Petitioner in order to 15 obtain a guilty plea; (5) he is entitled to a new sentencing hearing under State v. 16 Mulholland and State v. McFarland, and (6) the State deliberately excluded 17 evidence from his discovery due to its prejudicial nature with respect to the victim. 18 ECF No. 15, Ex. 10. 19 In its Order, the Washington Court of Appeals held that since Petitioner filed 20 his second petition more than one year after the judgment and sentence became 21 final, all his claims were time-barred pursuant to Wash. Rev. Code § 10.73.090(1). 22 ECF No. 15, Ex. 11. 23 Analysis 24 Here, Petitioner does not challenge the State’s assertions that his § 2254 25 petition is untimely.
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1 2 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 3 Mar 11, 2020 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 PARKER MASON BACHTOLD, No. 2:19-CV-00222-SAB 10 Petitioner, 11 v. ORDER DENYING HABEAS 12 RELIEF 13 JERI BOE, 14 Respondent. 15 16 Before the Court is Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of 17 Habeas Corpus by a Person in State Custody, ECF No. 1. 18 Petitioner challenges his 2016 Okanogan County guilty plea to first degree 19 murder, first degree robbery, theft of a motor vehicle, two counts of theft of a 20 firearm and juvenile in possession of a firearm. He plead guilty and was sentenced 21 on August 16, 2016, to 360 months’ incarceration and 36 months community 22 custody. He is serving his sentence at Clallam Bay Corrections Center in Clallam 23 Bay, Washington. 24 Petitioner did not file a direct appeal of his conviction or sentence. On 25 August 7, 2017, he filed a timely Personal Restraint Petition (PRP), asserting 26 judicial misconduct and ineffective assistance of counsel as grounds for relief. The 27 PRP was dismissed on October 1, 2018. He filed a subsequent PRP. It was 28 dismissed on May 7, 2019. On June 27, 2019, Petitioner filed his § 2254 Petition in 1 the Eastern District of Washington. 2 As grounds for federal habeas relief, Petitioner asserts the ineffective 3 assistance of counsel and the failure of the trial court to consider the mitigating 4 factors (i.e., his youth). 5 The State argues that Petitioner’s petition is untimely because he filed it 6 after more than one year of untolled time elapsed since his judgment became final 7 and he has failed to show any basis to excuse his untimely filing on the basis of 8 equitable tolling and failed to present a claim of actual innocence. The State also 9 argues that Petitioner failed to properly exhaust his state remedies because he did 10 not present his claims to the Washington Supreme Court and is now procedurally 11 barred from doing so. 12 In his reply, Petitioner argues the untimeliness of the petition should be 13 excused procedurally because of actual innocence as well as a showing of cause 14 and prejudice. 15 Standard of Review 16 Under AEDPA, relief may only be granted if the state court decision in 17 question was either “contrary to, or involved an unreasonable application of, 18 clearly established Federal law” or was “based on an unreasonable determination 19 of the facts in light of the evidence presented in the State court proceeding.” 28 20 U.S.C. § 2254(d)(1)-(2). 21 Tolling 22 AEDPA sets a one-year statute of limitations for filing a federal habeas 23 petition seeking relief from a state court judgment. 28 U.S.C. § 2244(d)(1). This 24 limitations period is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 25 645 (2010). To receive equitable tolling, “the petitioner must establish two 26 elements: (1) that he has been pursuing his rights diligently, and (2) that some 27 extraordinary circumstances stood in his way.” Ramirez v. Yates, 571 F.3d 993, 28 997 (9th Cir. 2009) (quotations omitted). “The petitioner must additionally show 1 that the extraordinary circumstances were the cause of his untimeliness, and that 2 the extraordinary circumstances made it impossible to file a petition on time” Id. 3 (quotation omitted). 4 The United States Supreme Court has recognized that an “actual innocence” 5 showing provides a gateway past the AEDPA statute of limitations. McQuiggin v 6 Perkins, 569 U.S. 383, 397 (2013). A claim of innocence does not by itself provide 7 a basis of relief. Schlup v. Delo, 513 U.S. 298, 315 (1995). Rather, such claims for 8 relief depend on the validity of the constitutional claims. Id. Thus, a claim of 9 innocence is considered “a gateway through which a habeas petitioner must pass to 10 have his otherwise barred constitutional claim considered on the merits.” Id. 11 “If a petitioner presents evidence of innocence so strong that a court cannot have 12 confidence in the outcome of the trial unless the court is also satisfied that the trial 13 was free of nonharmless constitutional error, the petitioner should be allowed to 14 pass through the gateway and argue the merits of his underlying claims.” Id. 15 AEDPA also provides for statutory tolling during the time “a properly filed 16 application for State post-conviction or other collateral review with respect to the 17 pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 18 Washington Court of Appeals Opinion 19 Petitioner filed a timely PRP. In it, he presented two grounds for relief: (1) 20 his guilty plea should be vacated because the state court judge lacked authority to 21 accept the plea and pronounce sentence after Petitioner filed an affidavit of 22 prejudice against him; and (2) his counsel gave him ineffective assistance. ECF 23 No. 15, Ex. 6. 24 The Washington Court of Appeals noted that there is no constitutional right 25 to the removal of a judge; rather the right is created by statute, relying on In re the 26 Marriage of Lemon 59 Wash. App. 568, 572 (1990). ECF No. 15, Ex. 4. It noted 27 that the mere existence of an affidavit of prejudice in the court file is not enough to 28 divest a judge of authority. Id. Since there was nothing in the record that showed 1 the affidavit was brought to the judge’s attention, the affidavit in the court file did 2 not divest the judge of authority to proceed. Id. 3 The Washington Court of Appeals found the judge did not err in proceeding 4 to sentencing without a presentence report, given that Petitioner was not convicted 5 of a crime where Wash. Rev. Code § 9.94A.500 requires the ordering of a 6 presentence report, and there was not chemical dependency finding. Id. It found 7 that Petitioner’s claim that his counsel was ineffective for not requesting a 8 presentence report was without merit. Id. It also concluded that all his claims of 9 ineffective assistance of counsel were unsupported by any facts or legal argument 10 and amounted to conclusory allegations of deficient performance. Id. 11 Petitioner filed a second PRP with the Washington Court of Appeals. In his 12 PRP, he asserted a variety of claims: (1) he was denied a presentence hearing; (2) 13 ineffective assistance of counsel; (3) the court failed to consider his youth as a 14 mitigating factor; (4) the prosecutor improperly overcharged Petitioner in order to 15 obtain a guilty plea; (5) he is entitled to a new sentencing hearing under State v. 16 Mulholland and State v. McFarland, and (6) the State deliberately excluded 17 evidence from his discovery due to its prejudicial nature with respect to the victim. 18 ECF No. 15, Ex. 10. 19 In its Order, the Washington Court of Appeals held that since Petitioner filed 20 his second petition more than one year after the judgment and sentence became 21 final, all his claims were time-barred pursuant to Wash. Rev. Code § 10.73.090(1). 22 ECF No. 15, Ex. 11. 23 Analysis 24 Here, Petitioner does not challenge the State’s assertions that his § 2254 25 petition is untimely. Nor has he presented any evidence or argument establishing 26 that the time limitations set forth in § 2244 should be equitably tolled. There is 27 nothing in the record establishing that he had been pursuing his rights diligently 28 and that some extraordinary circumstances stood in his way. Although Petitioner relies on “factual innocence” to argue this Court should hear his untimely petition, 2|| Petitioner has not met the high bar necessary for his Petition to proceed. As such, 3|| Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF No. 1, is untimely. 5 Accordingly, IT IS HEREBY ORDERED: 1. Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF No. 1, is DISMISSED. 8 2. The District Court Executive is directed to enter judgment in favor of 9}| Respondent. 10 IT ISSO ORDERED. The Clerk of Court is directed to enter this Order, forward copies to Petitioner and counsel, and close the file. 12 DATED this 11th day of March 2020. 13 14 15 ‘ fucked Festa i Stanley A. Bastian 18 United States District Judge 19 20 21 22) 23 24 25 26 27 28
ORDER DENYING HABEAS RELIEF ~5