Colbert v. Bennett

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 BOBBY COLBERT, CASE NO. 2:24-cv-01002-DGE 11 Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 JASON BENNETT, 14 Respondent. 15

16 Before the Court is the Report and Recommendation (“R&R”) of United States 17 Magistrate Judge Theresa L. Fricke. (Dkt. No. 33.) Having reviewed the Report and 18 Recommendation and the remaining record de novo, and considered Petitioner’s objections, the 19 Court ADOPTS the R&R. 20 I. FACTUAL AND PROCEDURAL BACKGROUND

21 On July 29, 2024, Petitioner Bobby Darrell Colbert filed a petition for a writ of habeas 22 corpus pursuant to 28 U.S.C. § 2254, challenging his 2005 Skagit County convictions for rape in 23 the second and third degree. (Dkt. No. 8.) Petitioner challenges his convictions based upon the 24 1 alleged failure of the Skagit County prosecutor to disclose an exculpatory DNA report until 2 February 1, 2019. (Dkt. No. 8 at 5.) 3 On February 20, 2025, Judge Fricke issued an R&R recommending the Court dismiss the 4 petition, or, in the alternative, transfer the case to the Ninth Circuit. (Dkt. No. 33.) Judge Fricke

5 found the petition was second or successive, and noted the Court did not have jurisdiction to 6 consider this petition until after Petitioner applied for, and received, authorization from the Ninth 7 Circuit to file a second or successive petition. (Id. at 8–13.) Judge Fricke also found the petition 8 should be dismissed as time barred. (Id. at 14–16.) On February 25, 2025, Petitioner filed 9 objections to the R&R. (Dkt. No. 35.) 10 On March 12, 2025, Petitioner filed an application with the Ninth Circuit for permission 11 to file a second or successive habeas corpus petition. (Dkt. No. 36.) On April 29, 2025, the 12 Ninth Circuit denied Petitioner’s application. (Dkt. No. 37.) 13 II. LEGAL STANDARD

14 A district court reviews de novo “those portions of the report or specified proposed 15 findings or recommendations to which [an] objection is made.” 28 U.S.C. § 636(b)(1)(C); see 16 also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the 17 magistrate judge’s disposition that has been properly objected to.”). 18 III. DISCUSSION

19 Petitioner’s objections do not address Judge’s Fricke’s reasoning concerning whether his 20 petition is second or successive.1 Pursuant to 28 U.S.C. § 2244(b)(3)(A), a “second or 21

1 Though not a model of clarity, Petitioner appears to argue that his Petition is not barred based 22 on Panetti v. Quarterman, 551 U.S. 930, 947 (2007). (Dkt. No. 35 at 2.) Panetti, however, involved a claim of incompetency raised to prevent an execution; it is inapplicable to the present 23 matter. See 551 at 947 (“The statutory bar on ‘second or successive’ applications does not apply to a Ford [(incompetency)] claim brought in an application filed when the claims is first ripe.”). 24 1 successive petition” may not be filed in the district court until the petitioner first obtains an order 2 from the “appropriate court of appeals” that “authoriz[es] the district court to consider” the 3 petition. Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (“If the petition is second or 4 successive, then the district court lacks jurisdiction and must dismiss the petition unless and until

5 the court of appeals grants an application to file it.”). Here, the Ninth Circuit has denied 6 Petitioner’s application to file a second or successive petition and the Court lacks jurisdiction to 7 consider the petition. 8 IV. ORDER

9 The Court, having reviewed the Report and Recommendation, the petition for writ of 10 federal habeas corpus relief, objections to the Report and Recommendation, and the remaining 11 record de novo, does hereby find and ORDER: 12 1) The Court ADOPTS the Report and Recommendation (Dkt. No. 33); 13 2) Petitioner’s 28 U.S.C. § 2254 petition (Dkt. No. 8) is DISMISSED because the 14 Court lacks jurisdiction. 15 3) Petitioner is DENIED issuance of a certificate of appealability. 16 17 Dated this 4th day of June, 2025. 18 A 19 David G. Estudillo 20 United States District Judge

22 23 24