Cobb v. Speer

• Court: District Court, W.D. Washington
• Decided: June 17, 2025
• Docket: 2:25-cv-00030
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 EDWARD EARL COBB,

9 Petitioner, Case No. C25-0030-MJP-SKV

10 v. REPORT AND RECOMMENDATION 11 SCOTT SPEER,

12 Respondent.

14 I. INTRODUCTION 15 Petitioner is a state prisoner who is currently confined at the Stafford Creek Corrections 16 Center in Aberdeen, Washington. He has presented to the Court for filing a petition for writ of 17 habeas corpus under 28 U.S.C. § 2241 challenging his confinement pursuant to the judgment and 18 sentence entered in King County Superior Court case number 08-1-07142-8. See Dkt. 8. 19 Though Petitioner presented his petition to the Court as one filed under § 2241, the Court has 20 construed the petition as one filed under 28 U.S.C. § 2254. See Dkt. 9 at 1-2 (citing White v. 21 Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) (“[Section] 2254 is the exclusive vehicle for a 22 habeas petition by a state prisoner in custody pursuant to a state court judgment[.]”)). The 23

REPORT AND RECOMMENDATION 1 petition has not been served on Respondent. After careful review of the petition, and the balance 2 of the record, this Court concludes that Petitioner’s federal habeas petition should be dismissed. 3 II. DISCUSSION

4 Petitioner submitted the instant federal habeas petition to the Court for filing on January 5 6, 2025. See Dkt. 1. As noted above, the petition relates to the judgement and sentence entered 6 in King County Superior Court case number 08-1-07142-8. See Dkt. 8 at 1. Petitioner alleges in 7 his petition that his current custody is unlawful because his judgment and sentence does not 8 reflect that he received credit for time served in the King County Jail prior to his sentencing, as 9 required by RCW 9.94A.505(6). Id. at 3. Petitioner claims that failure to apply such credits 10 violated his rights under the Sixth and Fourteenth Amendments. Id. 11 After reviewing the petition, this Court determined that there were barriers to Petitioner 12 proceeding with this federal habeas action. Thus, on February 7, 2025, the Court issued an Order 13 directing Petitioner to show cause why this action should not be dismissed. Dkt. 9. The Court

14 first observed therein that Petitioner did not appear to have satisfied the exhaustion requirement 15 of 28 U.S.C. § 2254(b). Id. at 2. The Court noted that nothing in the petition suggested 16 Petitioner had presented his claim regarding jail credits to the state appellate courts for review. 17 Id. The Court went on to explain that absent a showing that Petitioner had presented his claim to 18 both the Washington Court of Appeals and the Washington Supreme Court for review, the claim 19 was not eligible for federal habeas review. Id. 20 The Court next observed that even if Petitioner were able to satisfy the exhaustion 21 requirement, it appeared his petition was likely time barred under 28 U.S.C. § 2244(d). Dkt. 9 at 22 2-3. The Court noted that: (1) a one-year statute of limitations applies to federal habeas 23 petitions, and the limitation period generally starts to run from the date of the conclusion of

REPORT AND RECOMMENDATION 1 direct review or the time for seeking such review, whichever is later; (2) a mandate terminating 2 direct review of Petitioner’s judgment and sentence was issued on July 6, 2012; and (3) 3 Petitioner did not present his federal habeas petition to this Court for filing until January 6, 2025,

4 approximately twelve and a half years after direct review of his conviction concluded and, thus, 5 approximately eleven and a half years after it appears the statute of limitations expired. Id. 6 Petitioner was directed to file a response to the Order to Show Cause within thirty days 7 and was advised that his failure to timely respond would result in a recommendation that this 8 action be dismissed. Dkt. 9 at 3. Petitioner thereafter filed a motion seeking to stay this 9 proceeding, apparently to allow him time to exhaust his state court remedies. See Dkt. 10. On 10 March 31, 2025, this Court issued an Order denying Petitioner’s motion to stay. Dkt. 11. The 11 Court explained therein that because it had identified in its Order to Show Cause two potentially 12 dispositive issues, i.e., failure to exhaust state court remedies and timeliness, and because 13 Petitioner had not addressed the timeliness issue in his motion to stay, it would not grant the

14 requested stay but would grant Petitioner an extension of time to file a response to the Order to 15 Show Cause addressing the timeliness issue. See id. at 2. Petitioner was granted an extension of 16 time until April 30, 2025, to file a response to the Order to Show Cause specifically addressing 17 the statute of limitations issue discussed therein. Id. at 3. 18 Petitioner failed to file a response to the Order to Show Cause by the established 19 deadline. However, on May 6, 2025, Petitioner filed a motion seeking an extension of time until 20 May 27, 2025, to respond to the Order to Show Cause. Dkt. 12. The Court granted Petitioner’s 21 motion and advised that if Petitioner failed to file his response by May 27, 2025, the Court would 22 recommend that this action be dismissed. Dkt. 13. 23

REPORT AND RECOMMENDATION 1 To date, Petitioner has not responded to the Order to Show Cause. Because it appears 2 clear that Petitioner’s petition was not timely filed under 28 U.S.C. § 2244(d), and because 3 Petitioner has made no effort to demonstrate otherwise, Petitioner’s federal habeas petition

4 should be dismissed. 5 III. CERTIFICATE OF APPEALABILITY 6 A petitioner seeking post-conviction relief under § 2254 may appeal a district court’s 7 dismissal of his federal habeas petition only after obtaining a certificate of appealability from a 8 district or circuit judge. A certificate of appealability may issue only where a petitioner has 9 made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). 10 A petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with 11 the district court’s resolution of his constitutional claims or that jurists could conclude the issues 12 presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 13 U.S. 322, 327 (2003). Under this standard, this Court concludes Petitioner is not entitled to a

14 certificate of appealability in this matter. 15 IV. CONCLUSION 16 Based on the foregoing, this Court recommends that Petitioner’s federal habeas petition 17 (Dkt. 8) and this action be dismissed with prejudice as untimely under 28 U.S.C. § 2244(d). This 18 Court further recommends that a certificate of appealability be denied. A proposed Order 19 accompanies this Report and Recommendation. 20 Objections to this Report and Recommendation, if any, should be filed with the Clerk and 21 served upon all parties to this suit not later than fourteen (14) days from the date on which this 22 Report and Recommendation is signed. Failure to file objections within the specified time may 23 affect your right to appeal. Objections should be noted for consideration on the District Judge’s

REPORT AND RECOMMENDATION 1 motions calendar fourteen (14) days from the date they are filed. Responses to objections may 2 be filed by the day before the noting date. If no timely objections are filed, the matter will be 3 ready for consideration by the District Judge on July 8, 2025.

4 DATED this 17th day of June, 2025.

5 6 A 7 S. KATE VAUGHAN United States Magistrate Judge 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

REPORT AND RECOMMENDATION