Colbert v. Bennett

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 BOBBY COLBERT, Case No. 2:24-cv-01002-DGE-TLF 7 Petitioner, v. ORDER DIRECTING 8 RESPONDENT TO SUPPLEMENT JASON BENNETT, ANSWER AND STATE COURT 9 RECORD; ORDER CONCERNING Respondent. MOTIONS 10

11 On July 29, 2024, Petitioner Bobby Darrell Colbert filed his federal habeas 12 Petition, pursuant to 28 U.S.C. § 2254, challenging his 2005 Skagit County convictions 13 for rape in the second and third degree. Dkt. 8. He is currently confined at the Stafford 14 Creek Corrections Center in Aberdeen, Washington. Id. Respondent filed an answer on 15 September 5, 2024. Dkt. 21. Respondent argues the federal habeas petition should be 16 dismissed as successive. Id. 17 Petitioner has filed several other federal habeas petitions challenging his 18 conviction, and the Court determined that Petitioner’s habeas petitions were successive 19 and either transferred them to the Ninth Circuit as second or successive petitions, or 20 dismissed the case. See Colbert v. McDonald, C08- 0870-RSL; Colbert v. Sinclair, C11- 21 0076-RSM; Colbert v. Glebe, C12-0563-RAJ; Colbert v. Gilbert, C16-1247-JLR; Colbert 22 v. Gilbert, C16-1663-RSL; Colbert v. Haynes, C18-1350-RSM, Colbert v. Haynes, C19- 23 0467-RAJ; Colbert v. Bennett, C23-1122-JNW; Colbert v. Bennett, C24- 0889-LK; and 24 1 Colbert v. Bennett, C24-1439-DGE-SKV. Here, Petitioner raises a Brady claim and 2 asserts that an allegedly exculpatory DNA report was disclosed by the deputy 3 prosecuting attorney on February 1, 2019. Dkt. 8 at 5. 4 From the limited record before the Court, it is unclear when the Brady claim

5 became ripe. “Notwithstanding the prohibition of second or successive petitions in most 6 cases, not every petition filed after an initial petition has been adjudicated is considered 7 second or successive.” Brown v. Atchley, 76 F.4th 862, 866 (9th Cir. 2023). The Ninth 8 Circuit in Brown v. Atchley explained that “a petitioner does not run afoul of the abuse of 9 the writ doctrine by raising a new claim in a successive petition that could not have been 10 raised in a prior petition.” Id. at 867. 11 The Court orders Respondent to supplement the state court record and file a 12 supplemental brief to clarify the issue of when Petitioner’s Brady claim became ripe, and 13 whether Petitioner’s current petition is, or is not, successive under Brown v. Atchley. 14 Respondent’s deadline for the supplemental record and brief is January 19, 2025.

15 Petitioner may file a response to the State’s supplemental brief on or before February 16 2, 2025. The Court instructs the Clerk to re-note Petitioner’s habeas corpus petition to 17 February 2, 2025. 18 // 19 // 20 // 21 // 22 // 23 //

24 1 The Court further acknowledges Petitioner’s request to note his motions for 2 discovery (Dkt. 9), request for records (Dkt. 11), motion to appoint counsel (Dkt. 15), 3 motion to complete service (Dkt. 17) and motion to take judicial notice (Dkt. 18). The 4 Court previously denied these motions as premature as they were filed prior to the

5 deadline for Respondent’s answer. See Dkts. 14, 19, 20. These motions are no longer 6 premature. The Court instructs the Clerk to note Dockets 9, 11, 15, 17, 18 for February 7 9, 2025. Respondent’s deadline for filing a response to these motions is January 26, 8 2025. Petitioner’s deadline to file an optional reply brief concerning these motions is 9 February 9, 2025. 10 11 Dated this 18th day of December, 2024. 12 13 A 14 Theresa L. Fricke 15 United States Magistrate Judge

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