Smith v. Thrasher

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 ALBERT K. SMITH, CASE NO. C24-5901JLR 11 Petitioner, ORDER v. 12 TIM THRASHER, 13 Respondent. 14

15 I. INTRODUCTION 16 Before the court are (1) United States Magistrate Judge Theresa L. Fricke’s report 17 and recommendation, in which she recommends that the court dismiss pro se Petitioner 18 Albert K. Smith’s 28 U.S.C. § 2254 petition for a writ of habeas corpus as time-barred 19 and (2) Mr. Smith’s objections thereto. (R&R (Dkt. # 25); Objections (Dkt. # 26); see 20 Petition (Dkt. # 4).) The court has considered Magistrate Judge Fricke’s report and 21 recommendation, Mr. Smith’s objections, the relevant portions of the record, and the 22 governing law. Being fully advised, the court ADOPTS the report and recommendation, 1 DISMISSES Mr. Smith’s habeas petition as time-barred, and DENIES a certificate of 2 appealability.

3 II. BACKGROUND 4 Because Mr. Smith has not objected to the report and recommendation’s 5 discussion of his state-court conviction, appeals, and personal restraint petitions (“PRPs”) 6 the court adopts that discussion in its entirety. (R&R at 1-4; see generally Objections.) 7 Mr. Smith filed the instant § 2254 habeas petition on October 25, 2024. (See Prop. 8 Petition (Dkt. # 1).) He challenges his March 31, 2017 conviction and sentence,

9 following a jury trial, on two counts: theft in the first degree and identity theft in the first 10 degree. (See generally Petition; see State Court Record (Dkt. # 16), Ex. 1, at 64-76 11 (judgment and sentence).) Mr. Smith raised four grounds for habeas relief in his petition, 12 including violation of his right to a fair trial by failing to present sufficient evidence to 13 support his convictions; two violations of his Sixth Amendment right to confrontation;

14 and failure to prove all elements of first-degree theft beyond a reasonable doubt. (See 15 R&R at 4 (citing Petition; Affidavit (Dkt. # 4-2)).) 16 After reviewing Mr. Smith’s state-court appeals and PRPs, Magistrate Judge 17 Fricke concluded that judgment on Mr. Smith’s March 31, 2017 conviction and sentence 18 became final on July 30, 2019—90 days after the Washington Supreme Court denied his

19 petition for review. (See id. at 5-6.) Thus, absent tolling, the one-year statute of 20 limitation for Mr. Smith to file his habeas corpus petition expired no later than July 30, 21 2020. (See id. at 7); see 28 U.S.C. § 2244(d)(1). Magistrate Judge Fricke concluded that 22 the statute of limitations had not been tolled because (1) Mr. Smith did not timely seek 1 collateral review of his conviction and sentence in state court, preventing tolling under 28 2 U.S.C. § 2244(d)(2) (R&R at 6-7); and (2) Mr. Smith was not entitled to equitable tolling

3 because he did not establish that “extraordinary circumstances” prevented him from filing 4 a timely petition (id. at 7-10); see Holland v. Florida, 560 U.S. 631, 649 (2010) 5 (requiring petitioner to show that he has been pursuing his rights diligently and that some 6 extraordinary circumstance prevented timely filing); see also Pace v. DiGuglielmo, 544 7 U.S. 408, 418 (2005) (denying the federal habeas petition of a petitioner who filed 8 beyond the deadline without any valid justification). Magistrate Judge Fricke further

9 concluded that Mr. Smith was not entitled to raise an actual innocence claim because he 10 failed to support his claim of actual innocence with reliable evidence. (R&R at 10-13); 11 see 28 U.S.C. § 2244(d)(1)(D); McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) 12 (providing an equitable exception to the statute of limitations where petitioner “persuades 13 the district court that, in light of the new evidence, no juror, acting reasonably, would

14 have voted to find him guilty beyond a reasonable doubt”). 15 Having concluded that Mr. Smith’s habeas petition was barred by the statute of 16 limitations, Magistrate Judge Fricke found that an evidentiary hearing was unnecessary 17 because the petition could be resolved on the existing state court record. (R&R at 13.) 18 She recommends that the court deny a certificate of appealability because “no jurist of

19 reason” could disagree with the conclusion that Mr. Smith’s petition is barred or conclude 20 that the issues presented in his petition should proceed further. (Id. at 14 (first citing 28 21 U.S.C. § 2253(c)(2); and then citing Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). 22 1 Mr. Smith filed his objections on September 8, 2025. (See Objections) Mr. Smith 2 objects to the report and recommendation on the following grounds:

3 (1) Honorable Judge Fricke denied tolling[,] [i]ndicating tolling do[es] not apply to covid. 4 (2) Petitioner failed to exercise due diligen[ce]. 5 (3) New evidence was clearly available. (4) New evidence was not part of the record. 6 (5) Petitioner fails to establish a constitutional error and only uses v[a]gue ref[erences]. 7 (6) Surgery is not argued in state court[.] 8 (7) Ineffective coun[sel] was not argued in state court.

9 (Id. at 1-2.) Respondent did not respond to Mr. Smith’s objections. (See generally Dkt.) 10 III. ANALYSIS 11 A district court has jurisdiction to review a magistrate judge’s report and 12 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). The district court “shall 13 make a de novo determination of those portions of the report or specified proposed 14 findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “A 15 judge of the court may accept, reject, or modify, in whole or in part, the findings or 16 recommendations made by the magistrate judge.” Id. Because Mr. Smith is proceeding 17 pro se, the court must interpret his petition and objections liberally. See Bernhardt v. Los 18 Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003). 19 The court has carefully considered Mr. Smith’s objections and has reviewed 20 Magistrate Judge Fricke’s report and recommendation de novo in light of those 21 objections. Having done so, the court agrees with Magistrate Judge Fricke’s 22 1 recommendations for the reasons set forth in the report and recommendation. 2 Accordingly, the court OVERRULES Mr. Smith’s objections and ADOPTS the report

3 and recommendation in its entiretly. The court DISMISSES Mr. Smith’s habeas corpus 4 petition with prejudice. 5 IV. CONCLUSION 6 For the foregoing reasons, the court OVERRULES Mr. Smith’s objections (Dkt. 7 # 26) and ADOPTS Magistrate Judge Fricke’s report and recommendation (Dkt. # 25) in 8 its entirety. Mr. Smith’s 28 U.S.C. § 2254 petition for a writ of habeas corpus is

9 DISMISSED with prejudice. A certificate of appealability is DENIED for the reasons set 10 forth in Magistrate Judge Fricke’s report and recommendation. The Clerk is DIRECTED 11 to close this case. 12 Dated this 25th day of September, 2025. 13 A 14 15 JAMES L. ROBART United States District Judge 16 17 18 19 20 21 22