Robert Fred Elliot, a/k/a Robert Fred Elliott v. Ron Haynes

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ROBERT FRED ELLIOT, a/k/a ROBERT FRED ELLIOTT, CASE NO. 3:25-cv-05781-JHC-GJL 11 Petitioner, REPORT AND RECOMMENDATION 12 v. Noting Date: April 8, 2026 14 Respondent.

15 The District Court has referred this action to United States Magistrate Judge Grady J. 16 Leupold. Petitioner Robert Fred Elliot,1 proceeding pro se and In Forma Pauperis (“IFP”), filed 17 a federal habeas Petition pursuant to 28 U.S.C. § 2254, seeking relief from a state court 18 conviction. Dkt. 1. For the reasons set forth herein, the Court concludes the Petition is time 19 barred and RECOMMENDS the Petition be DISMISSED with prejudice and a certificate of 20 appealability be DENIED. 21 22 23

24 1 The record indicates two spellings of Petitioner’s name. 2 On May 5, 2019, a jury found Petitioner guilty of felony indecent exposure and 3 obstructing a law enforcement officer. Dkt. 20-1, Ex. 1 at 1, 2; Ex. 6 at 13. The jury also returned 4 special verdicts finding sexual motivation and rapid recidivism. Id. On May 17, 2019, the Pierce

5 County Superior Court entered judgment and sentenced Petitioner to 30 months of confinement 6 and 36 months of community custody. Dkt. 20-1, Ex. 1 at 7. Petitioner did not file a direct appeal 7 from the superior court’s judgment.2 Dkt. 20-1, Ex. 6 at 14. 8 On November 24, 2019, Petitioner filed a Personal Restraint Petition (“PRP”) in the 9 Washington Court of Appeals,3 Dkt. 20-1, Ex. 4, followed by a supplemental motion for 10 appropriate relief on October 25, 2021. Dkt. 20-1, Ex. 2. On December 15, 2021, the court of 11 appeals granted Petitioner’s motion to supplement the PRP and accepted for consideration the 12 supplemental brief received on November 24, 2021. Dkt. 20-1, Ex. 6 at 89; Ex. 8 at 1. 13 In his PRP and supplemental briefing, Petitioner argued: “(1) his sentence of 30 months 14 of confinement and 36 months of community custody exceeds the statutory maximum sentence

15 of 60 months; (2) that the decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), 16 affects his sentence; (3) that he was induced to go to trial because of the State’s aggressive plea 17 offer; (4) that the State presented insufficient evidence of sexual motivation; and (5) that his trial 18 counsel was ineffective for not arguing that he had the freedom of speech to make a statement 19

20 2 Petitioner alleges he believed his attorney had appealed the superior court’s judgment and only discovered his attorney had failed to do so after the one-year statute of limitations had expired. Dkt. 8 at 13–14. 21 3 The Washington Court of Appeals Division II date stamped the PRP as filed “2019 NOV 24 PM 1:52.” Id. Respondent’s appellate brief responding to the PRP also indicates the PRP was filed in November 2019. Dkt. 20-1, 22 Ex. 6 at 14. However, in these federal habeas proceedings, Respondent asserts Petitioner filed his PRP on November 24, 2020, twice within the Response, and relies on this erroneous date to argue statutory tolling is unavailable under 23 the AEDPA. See Dkt. 19 at 3, 8. This material discrepancy could have significant implications in this case. Thus, when considering the AEDPA period of limitations, the Court relies on the court of appeals November 24, 2019, 24 date stamp to assess the Petition’s timeliness under the AEDPA as discussed further below. 1 during the crime.” Dkt. 20-1, Ex. 8 at 1. In response, the State conceded, “that as to issue (1), the 2 combined sentences render Elliott’s judgment and sentence facially invalid and thus his petition 3 not time barred.” Dkt. 20-1, Ex. 8 at 2. On July 26, 2022, the court of appeals issued an 4 unpublished opinion accepting the State’s concession that the combined sentence of 30 months

5 in confinement and 36 months in community custody ordered by the superior court was facially 6 invalid, and remanding Petitioner’s judgment and sentence for correction. Id. The court denied 7 the remainder of Petitioner’s PRP as time barred and thus denied his request for appointment of 8 counsel. Id. 9 Petitioner sought discretionary review by the Washington Supreme Court, and a Deputy 10 Commissioner denied review on October 3, 2022. Dkt. 20-1, Ex. 10. The ruling recognized the 11 conceded sentencing error warranted limited relief but found the remaining grounds “were at 12 best a mixture of nonexempt grounds for relief and potentially exempt grounds under RCW 13 10.73.100, making the petition untimely.” Ex. 10 at 1–2. 14 On November 9, 2022, the court of appeals issued a certificate of finality, Dkt. 20-1, Ex.

15 11, and the superior court entered an order correcting Petitioner’s judgment and sentence, Dkt. 16 20-1, Ex. 12. Petitioner did not appeal the corrected judgment. 17 On September 3, 2025, Petitioner filed the instant habeas Petition. Dkt. 1. On January 28, 18 2026, Respondent filed a Response to the instant Petition with an accompanying state court 19 record, asserting the Petition was filed outside of the one-year statute of limitations. Dkts. 19, 20. 20 Respondent maintains the Petition is therefore time barred and should be dismissed with 21 prejudice. Dkt. 19 at 9. To date, Petitioner has not filed a reply and his time for doing so has 22 passed. Thus, the instant Petition is ripe for disposition. 23 //

24 2 Petitioner filed his Petition on September 3, 2025. Dkt 1. However, Respondent argues 3 Petitioner filed his Petition after the one-year statute of limitations prescribed by the 4 Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2241 et seq.,

5 and further argues Petitioner is not entitled to any form of tolling that would excuse the late 6 filing. Dkt. 19 at 7–9. Petitioner has offered no response. See Dkt. 7 A. Statute of Limitations – 28 U.S.C. § 2244(d) 8 Pursuant to AEDPA, a one-year statute of limitations applies to federal habeas petitions. 9 Section 2244(d)(1)(A) requires a prisoner to file a habeas petition within one year of “the date on 10 which the judgment became final by the conclusion of direct review or the expiration of the time 11 for seeking such review.” 12 If a petitioner fails to seek direct review of his conviction in state court, the state-court 13 judgment becomes final when the time for seeking direct review elapses. See Gonzalez v. Thaler, 14 565 U.S. 134, 149 (2012). To seek direct review in Washington state courts, a notice of appeal

15 must be filed with the court of conviction within thirty days after entry of final judgment. Wash. 16 RAP 5.1 and 5.2; see also Wash. CR 6 (computation of time in Washington state courts). Thus, if 17 a petitioner does not timely file a notice of appeal, the judgment of conviction becomes final 18 after thirty days, triggering the start of AEDPA’s one-year limitations period. 28 U.S.C. § 19 2244(d)(1)(A). Once AEDPA’s limitations period begins, it is tolled while a “properly filed application 20 for state post-conviction or other collateral review. . . is pending.” 28 U.S.C. § 2244(d)(2); Pace 21 v. DiGulielmo, 544 U.S. 408, 410 (2005). In other words, the time in which a petitioner properly 22 seeks collateral review of his conviction in state court will not count against him for purposes of 23 filing a timely habeas petition in federal court. 24 1 Respondent argues the judgment and sentence entered May 17, 2019, is the appropriate 2 final judgment for assessing AEDPA’s one-year limitations period under Section 2244(d)(1)(A) 3 rather than the corrected sentence entered on November 9, 2022. Dkt. 19 at 8. While Petitioner 4 has not offered a response, there is a colorable argument that the corrected sentence entered

5 November 9, 2022, “replace[d] an invalid sentence with a valid one,” thus becoming the final 6 judgment under the AEDPA. See Colbert v. Haynes, 954 F.3d 1232, 1236 (9th Cir. 2020) 7 (holding “sentencing errors stemming from a trial court exceeding its statutory authority render a 8 sentencing judgment invalid” under Washington law); see also Dkt. 20-1, Ex. 6 at 18 (Respondent’s appellate brief concession: “By imposing a sentence where a combination of 9 confinement and community custody ordered exceeds the statutory maximum for felony indecent 10 exposure, the trial court exceeded its statutory authority.”). 11 Regardless, the Court need not reach this issue on the limited briefing here. The instant 12 Petition was clearly filed after the expiration of the AEDPA’s statute of limitations utilizing 13 either date for the reasons set forth below. 14 1. Judgment and Sentence Entered May 17, 2019 15 The record reflects that Petitioner did not challenge the initial May 17, 2019, judgment 16 and sentence by filing a direct appeal. See Dkt. 8 at 2; Dkt. 20-1, Ex. 1 State of Washington v. 17 Robert Fred Elliott, Superior Court for Pierce County Case No. 18-1-04739-2. As a result, 18 Petitioner’s conviction and judgment became final on June 17, 2019, and AEDPA’s one-year 19 limitations period began to run the following day.4 See Patterson v. Stewart, 251 F.3d 1243, 20 21 22 4 Petitioner had thirty days to file a direct appeal, from May 17, 2019, to June 16, 2019, which was a Sunday. Wash. 23 RAP 5.1 and 5.2. See also Wash. CR 6 (computation of time in Washington state courts). If the last day is a Saturday, Sunday or legal holiday, “the period runs until the end of the next day which is neither a Saturday, 24 a Sunday, or a legal holiday”—which would be Monday, June 17, 2019. 1 1245–46 (9th Cir. 2001) (applying Fed. R. Civ. P. 6(a) to calculate time limits under AEDPA); 2 see also Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). 3 The statute of limitations then ran until Petitioner filed his PRP on November 24, 2019. 4 Accordingly, 160 days had run on the statute of limitations before the PRP was filed, leaving 265

5 days remaining on the statute of limitations. The statute of limitations was tolled during 6 the period the PRP was pending—until the court of appeals issued the certificate of finality on 7 November 9, 2022. Dkt. 20-1, Ex. 11; see Phongmanivan v. Haynes, 800 F. App’x 567, 568 (9th 8 Cir. 2020) (concluding federal statute of limitations was tolled from the time petitioner’s PRP was filed until the state appellate court issued a certificate of finality). The statute of limitations 9 began to run again the following day and expired 260 days later, on July 28, 2023. Petitioner did 10 not file his federal habeas corpus petition until September 3, 2025, more than two years after the 11 AEDPA limitations period expired. Thus, unless equitable tolling applies, the Petition is 12 untimely based upon the May 17, 2019, judgment and sentence. 13 2. Corrected Sentence Entered November 9, 2022 14 Similarly, the Petition is also untimely when calculating the statute of limitations based 15 upon the November 9, 2022, corrected sentence entered by the superior court. Petitioner did not 16 appeal the amended sentence, and his time to seek direct review therefore expired 30 days later 17 on December 9, 2022. The statute of limitations began to run the following day and expired one 18 year later, on December 11, 2023.5 Petitioner has not filed any state motions for collateral review 19 of his amended sentence and is therefore not entitled to statutory tolling pursuant to 28 U.S.C. § 20 2244(d)(2). Thus, considering the corrected sentence on November 9, 2022, as the final 21 22 23 5 Because the statute of limitations expired on Sunday, December 10, 2023, Petitioner had until the following 24 Monday, December 11, 2023, to file a timely federal habeas petition. 1 judgment under AEDPA, the instant Petition was not filed until September 3, 2025, over one 2 year and eight months after the one-year time period of limitations expired. 3 Therefore, based on either possible date of final judgment, the Petition is untimely. As a 4 result, the Petition must be dismissed as time barred unless equitable tolling applies.

5 B. Equitable Tolling 6 The AEDPA statute of limitations is subject to equitable tolling where the petitioner 7 pursued his rights diligently and “some extraordinary circumstance stood in his way and 8 prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citations and quotations 9 omitted). To receive equitable tolling, a petitioner must show the extraordinary circumstances 10 “were the but-for and proximate cause of his untimeliness.” Ansaldo v. Knowles, 143 F. App’x. 11 839, 840 (9th Cir. 2005). 12 While Petitioner has not argued equitable tolling under the AEDPA specifically, the 13 Petition claims he had no knowledge that he could appeal the superior court’s judgment and that 14 his attorney failed to submit a notice of appeal on his behalf after the guilty verdict. Dkt. 8 at 6,

15 7, 9, 13–14. Even so, this does not constitute the type of extraordinary circumstance that would 16 entitle Petitioner to equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) 17 (holding that “a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary 18 circumstance”); Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (observing that 19 the equitable tolling standard “has never been satisfied by a petitioner’s confusion or ignorance 20 of the law alone”). Plaintiff represented himself throughout the PRP process, and he waited more 21 than one year and eight months after the court of appeals’ certificate of finality and superior 22 court’s corrected sentence to file the instant Petition. He has not identified any extraordinary 23 circumstances beyond his control that prevented him from timely filing. Therefore, Petitioner has

24 1 not shown he is entitled to equitable tolling, and the Court finds that his Petition is barred by 2 AEDPA’s one-year limitations period. 4 The decision to hold an evidentiary hearing is committed to the Court’s discretion.

5 Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A] federal court must consider whether such a 6 hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would 7 entitle the applicant to federal habeas relief.” Id. at 474. In determining whether relief is 8 available under 28 U.S.C. § 2254(d)(1), the Court’s review is limited to the record before the 9 state court. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). A hearing is not required if the 10 allegations would not entitle the petitioner to relief under §2254(d). Landrigan, 550 U.S. at 474. 11 “It follows that if the record refutes the applicant’s factual allegations or otherwise precludes 12 habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Further, the 13 Supreme Court has held that when reviewing a federal habeas petition under 28 U.S.C. § 2254, 14 the federal court may not consider any facts beyond the factual record presented to the state post-

15 conviction relief court – unless one of the limited exceptions of 28 U.S.C. § 2254(e)(2) applies. 16 Shinn v. Ramirez, 596 U.S. 366, 381–82 (2022). 17 The Court finds that an evidentiary hearing is neither necessary nor permitted by AEDPA 18 in this case because, as discussed in this Report and Recommendation, the Petition may be 19 resolved on the existing state court record. 21 A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district 22 court’s dismissal of the federal habeas petition only after obtaining a certificate of appealability 23 (COA) from a district or circuit judge. See 28 U.S.C. § 2253(c). “A certificate of appealability

24 1 may issue . . . only if the [petitioner] has made a substantial showing of the denial of a 2 constitutional right.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by 3 demonstrating that jurists of reason could disagree with the district court’s resolution of his 4 constitutional claims or that jurists could conclude the issues presented are adequate to deserve

5 encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack 6 v. McDaniel, 529 U.S. 473, 484 (2000)). 7 No jurist of reason could disagree with this Court’s evaluation of Petitioner’s claims or 8 would conclude the issues presented in the Petition should proceed further. Therefore, the Court 9 concludes Petitioner is not entitled to a certificate of appealability. 11 Petitioner’s § 2254 habeas Petition is untimely as it was filed more than one year after the 12 court of appeals’ certificate of finality and the superior court’s corrected sentence became final. 13 There are no extraordinary circumstances in this case requiring the application of equitable 14 tolling principles. Therefore, the Petition is barred by the one-year limitations period imposed

15 under 28 U.S.C. § 2244(d), and the Court RECOMMENDS the Petition be DISMISSED with 16 prejudice. No evidentiary hearing is required and a certificate of appealability should be denied. 17 A proposed Order accompanies this Report and Recommendation. 18 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties 19 shall have fourteen (14) days from service of this report to file written objections. See also Fed. 20 R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of 21 de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of 22 those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda 23 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time

24 1 limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on April 8, 2 2026, as noted in the caption. 3 4 Dated this 25th day of March, 2026.

5 A 6 Grady J. Leupold 7 United States Magistrate Judge

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