6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 JESS RICHARD SMITH, CASE NO. C21-556-RSM 9 Petitioner, 10 ORDER ADOPTING REPORT AND RECOMMENDATION AND v. DISMISSING ACTION 11 JEFFREY UTTECHT, 12 Respondent. 13
14 I. INTRODUCTION 15 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 16 Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #9. The Court has reviewed 17 Petitioner Smith’s habeas petition, the R & R, Petitioner’s objections thereto, and the remaining 18 record. For the reasons stated below, the Court ADOPTS the R & R and DISMISSES this case 19 with prejudice on the basis that Petitioner’s habeas petition is untimely. 20 // 21 // 22
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 II. BACKGROUND 2 The Court adopts the relevant factual background set forth in the R & R. See Dkt. #9. 3 Petitioner Smith, proceeding pro se and in forma pauperis (“IFP”) in this action, is a state prisoner 4 currently confined at the Coyote Ridge Corrections Center in Connell, Washington. Petitioner
5 seeks relief from his 2006 King County Superior Court convictions by jury verdict for first-degree 6 felony murder and first-degree manslaughter under 28 U.S.C. § 2254. Dkt. #8 at 1. Petitioner 7 raises one ground for relief: “the state punished Smith twice for the same offense after guilty plea 8 conviction.” Id. at 5. 9 In 2001, Petitioner pled guilty to one count of felony murder in the second degree 10 predicated on second degree assault. The Washington State Court of Appeals reversed Petitioner’s 11 felony murder conviction in light of In re Pers. Restraint of Andress, 56 P.3d 981 (Wash. 2002) 12 and In re Pers. Restraint of Hinton, 100 P.3d 801 (Wash. 2004), which held that assault could not 13 be a predicate felony for a second degree murder conviction. See State v. Smith, No, 48449-4-I,
14 125 Wash. App. 1026 (Wash. Ct. App. Jan. 31, 2005). In August 2006, a jury found Petitioner 15 guilty in separate verdicts of felony murder in the first degree and manslaughter in the first degree. 16 On April 8, 2014, Petitioner filed his first habeas petition challenging his 2006 conviction. 17 See Smith v. Obenland, Case No. 14-517-BJR. The Honorable Barbara Rothstein, United States 18 District Judge, dismissed that petition as untimely on April 1, 2015. See id., Dkt. #34. In that 19 decision, Judge Rothstein concluded that Petitioner’s conviction became final on April 14, 2010 20 when the mandate was issued in the direct appeal of the 2006 judgment and sentence. Id. at 6. 21 Petitioner’s motion to vacate, transferred to the Washington Court of Appeals to be treated as a 22 personal restraint petition (“PRP”), tolled the statute of limitations from October 18, 2010 until
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 July 3, 2012 when the Washington Court of Appeals dismissed the petition on Petitioner’s own 2 motion. Id. The one-year statute of limitations period under 28 U.S.C. § 2244(d)(1) therefore 3 began to run again and expired on March 29, 2013. Judge Rothstein concluded that Petitioner filed 4 his petition on April 8, 2014, more than one year after the tolling date, and failed to demonstrate
5 extraordinary circumstances warranting equitable tolling. Id. at 6-9. Petitioner appealed to the 6 U.S. Court of Appeals for the Ninth Circuit, and the Ninth Circuit denied issuance of appealability 7 and closed the appeal. Id., Dkt. #45. 8 Petitioner filed the instant petition on April 27, 2021. Dkt. #1. He claims it is timely and 9 not secondary or successive because it attacks new double jeopardy errors that “are not 10 procedurally defaulted in state court.” Dkt. #8 at 13-14. In the R & R, Judge Tsuchida determined 11 that the petition was barred by the one-year statute of limitations under 28 U.S.C. § 2244(d) and 12 that none of the three statutory exceptions to the limitations period apply. Dkt. #9. He therefore 13 recommended that the petition be denied with prejudice. Id. Petitioner timely filed Objections to
14 the R & R. Dkt. #10. 15 III. DISCUSSION 16 A. Legal Standard 17 A district court has jurisdiction to review a Magistrate Judge’s report and recommendation 18 on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any 19 part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the 20 court may accept, reject, or modify, in whole or in part, the findings or recommendations made 21 by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of 22
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 the report and recommendation to which specific written objection is made. United States v. 2 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 3 B. Petitioner’s Objections 4 Petitioner’s Objections state that his petition attacks a new judgment from his remand
5 proceedings following his second direct appeal. Dkt. #10 (“Smith’s double jeopardy claim 6 attacks a ‘new’ judgment, stemming from his 2010 Resentencing hearing upon remand of his 7 ‘second direct appeal’ in State v. Smith, 2009 Wn. App. LEXIS 218 (2009).”). He argues that 8 the R & R erred in finding that he already raised his double jeopardy claim in a prior PRP because 9 that PRP was dismissed as a “mixed petition.” Dkt. #10 at 5 (citing Smith v. Washington, 135 S. 10 Ct. 1720 (2015)). For that reason, Petitioner argues, the Magistrate Judge erred in applying the 11 “second and successive petition” denial standard as opposed to the “new judgment” standard set 12 forth in Magwood v. Patterson, 561 U.S. 320 (2010) and U.S. v. Scott, 124 F.3d 1328 (10th Cir. 13 1997). Id. He also objects that his petition was not served on or answered by Respondent Uttecht.
14 Id. at 2. 15 Petitioner’s Objections do not demonstrate error in the conclusion of the R & R that his 16 petition is time-barred under 28 U.S.C. § 2244(d), which sets forth a one-year limitation period 17 from the date on which the judgment became final by the conclusion of direct review or 18 expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). Magwood and Scott both 19 addressed instances where the petitioner was resentenced, thus leading to a new judgment. See 20 Magwood, 561 U.S. 320; Scott, 124 F.3d 1328. Here, in contrast, Petitioner was not resentenced 21 such that a new, appealable judgment was entered. 22
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 JESS RICHARD SMITH, CASE NO. C21-556-RSM 9 Petitioner, 10 ORDER ADOPTING REPORT AND RECOMMENDATION AND v. DISMISSING ACTION 11 JEFFREY UTTECHT, 12 Respondent. 13
14 I. INTRODUCTION 15 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 16 Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #9. The Court has reviewed 17 Petitioner Smith’s habeas petition, the R & R, Petitioner’s objections thereto, and the remaining 18 record. For the reasons stated below, the Court ADOPTS the R & R and DISMISSES this case 19 with prejudice on the basis that Petitioner’s habeas petition is untimely. 20 // 21 // 22
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 II. BACKGROUND 2 The Court adopts the relevant factual background set forth in the R & R. See Dkt. #9. 3 Petitioner Smith, proceeding pro se and in forma pauperis (“IFP”) in this action, is a state prisoner 4 currently confined at the Coyote Ridge Corrections Center in Connell, Washington. Petitioner
5 seeks relief from his 2006 King County Superior Court convictions by jury verdict for first-degree 6 felony murder and first-degree manslaughter under 28 U.S.C. § 2254. Dkt. #8 at 1. Petitioner 7 raises one ground for relief: “the state punished Smith twice for the same offense after guilty plea 8 conviction.” Id. at 5. 9 In 2001, Petitioner pled guilty to one count of felony murder in the second degree 10 predicated on second degree assault. The Washington State Court of Appeals reversed Petitioner’s 11 felony murder conviction in light of In re Pers. Restraint of Andress, 56 P.3d 981 (Wash. 2002) 12 and In re Pers. Restraint of Hinton, 100 P.3d 801 (Wash. 2004), which held that assault could not 13 be a predicate felony for a second degree murder conviction. See State v. Smith, No, 48449-4-I,
14 125 Wash. App. 1026 (Wash. Ct. App. Jan. 31, 2005). In August 2006, a jury found Petitioner 15 guilty in separate verdicts of felony murder in the first degree and manslaughter in the first degree. 16 On April 8, 2014, Petitioner filed his first habeas petition challenging his 2006 conviction. 17 See Smith v. Obenland, Case No. 14-517-BJR. The Honorable Barbara Rothstein, United States 18 District Judge, dismissed that petition as untimely on April 1, 2015. See id., Dkt. #34. In that 19 decision, Judge Rothstein concluded that Petitioner’s conviction became final on April 14, 2010 20 when the mandate was issued in the direct appeal of the 2006 judgment and sentence. Id. at 6. 21 Petitioner’s motion to vacate, transferred to the Washington Court of Appeals to be treated as a 22 personal restraint petition (“PRP”), tolled the statute of limitations from October 18, 2010 until
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 July 3, 2012 when the Washington Court of Appeals dismissed the petition on Petitioner’s own 2 motion. Id. The one-year statute of limitations period under 28 U.S.C. § 2244(d)(1) therefore 3 began to run again and expired on March 29, 2013. Judge Rothstein concluded that Petitioner filed 4 his petition on April 8, 2014, more than one year after the tolling date, and failed to demonstrate
5 extraordinary circumstances warranting equitable tolling. Id. at 6-9. Petitioner appealed to the 6 U.S. Court of Appeals for the Ninth Circuit, and the Ninth Circuit denied issuance of appealability 7 and closed the appeal. Id., Dkt. #45. 8 Petitioner filed the instant petition on April 27, 2021. Dkt. #1. He claims it is timely and 9 not secondary or successive because it attacks new double jeopardy errors that “are not 10 procedurally defaulted in state court.” Dkt. #8 at 13-14. In the R & R, Judge Tsuchida determined 11 that the petition was barred by the one-year statute of limitations under 28 U.S.C. § 2244(d) and 12 that none of the three statutory exceptions to the limitations period apply. Dkt. #9. He therefore 13 recommended that the petition be denied with prejudice. Id. Petitioner timely filed Objections to
14 the R & R. Dkt. #10. 15 III. DISCUSSION 16 A. Legal Standard 17 A district court has jurisdiction to review a Magistrate Judge’s report and recommendation 18 on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any 19 part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the 20 court may accept, reject, or modify, in whole or in part, the findings or recommendations made 21 by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of 22
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 the report and recommendation to which specific written objection is made. United States v. 2 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 3 B. Petitioner’s Objections 4 Petitioner’s Objections state that his petition attacks a new judgment from his remand
5 proceedings following his second direct appeal. Dkt. #10 (“Smith’s double jeopardy claim 6 attacks a ‘new’ judgment, stemming from his 2010 Resentencing hearing upon remand of his 7 ‘second direct appeal’ in State v. Smith, 2009 Wn. App. LEXIS 218 (2009).”). He argues that 8 the R & R erred in finding that he already raised his double jeopardy claim in a prior PRP because 9 that PRP was dismissed as a “mixed petition.” Dkt. #10 at 5 (citing Smith v. Washington, 135 S. 10 Ct. 1720 (2015)). For that reason, Petitioner argues, the Magistrate Judge erred in applying the 11 “second and successive petition” denial standard as opposed to the “new judgment” standard set 12 forth in Magwood v. Patterson, 561 U.S. 320 (2010) and U.S. v. Scott, 124 F.3d 1328 (10th Cir. 13 1997). Id. He also objects that his petition was not served on or answered by Respondent Uttecht.
14 Id. at 2. 15 Petitioner’s Objections do not demonstrate error in the conclusion of the R & R that his 16 petition is time-barred under 28 U.S.C. § 2244(d), which sets forth a one-year limitation period 17 from the date on which the judgment became final by the conclusion of direct review or 18 expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). Magwood and Scott both 19 addressed instances where the petitioner was resentenced, thus leading to a new judgment. See 20 Magwood, 561 U.S. 320; Scott, 124 F.3d 1328. Here, in contrast, Petitioner was not resentenced 21 such that a new, appealable judgment was entered. 22
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 Petitioner appears to argue that the state trial court’s order dated October 21, 2010, which 2 vacated his manslaughter conviction, constitutes a “new” judgment. See Dkt. #10 at 1, 4. The 3 Washington Court of Appeals considered whether this order constituted a resentencing and found 4 that the vacatur of his manslaughter conviction “did not constitute resentencing because the trial
5 court did not exercise independent judgment, or review, or rule on any issue as to the felony 6 murder conviction.” Smith v. Obenland, Case No. 14-517-BJR, Dkt. #34 at 4. Petitioner raised 7 a similar argument again before Judge Rothstein, claiming that his first habeas petition was 8 timely since the judgment did not become final until October 21, 2010. See id. at 6-7. Judge 9 Rothstein concluded that the October 21, 2010 vacatur was not an appealable judgment but 10 “merely mirrored the decision by the Court of Appeals on direct appeal, and the trial court had 11 no discretion to do anything else.” Id. at 7. Consequently, she concluded that Petitioner’s 12 conviction became final on April 14, 2010 when the mandate was issued in the direct appeal of 13 the 2006 judgment and sentence. Id. Taking into account Petitioner’s direct appeals and
14 personal restraint petitions, Judge Rothstein determined that the statute of limitations for seeking 15 federal habeas review of Petitioner’s 2006 convictions expired on March 29, 2013. Id. at 6. 16 Nothing in Petitioner’s Objections explains why the 2010 order—contrary to the 17 conclusions of two different courts—amounts to a “new” judgment for purposes of calculating 18 the 1-year limitations period. Accordingly, given Judge Rothstein’s previous determination that 19 Petitioner’s April 2014 petition was untimely, the present habeas petition challenging the same 20 King County convictions is likewise untimely. The R & R properly recommended dismissal of 21 Petitioner’s claims as time-barred. 22 //
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 C. Certificate of Appealability 2 Petitioner made no objection as to the R & R’s recommendation to deny issuance of a 3 certificate of appealability (“COA”). Accordingly, having reviewed the record and the R & R, 4 the Court adopts the R & R’s conclusion that Petitioner has failed to demonstrate that “jurists of
5 reason could disagree with the district court’s resolution of his constitutional claims or that jurists 6 could conclude the issues presented are adequate to deserve encouragement to proceed further.” 7 Dkt. #9 at 6 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). 8 IV. CONCLUSION 9 Accordingly, having reviewed Petitioner’s habeas petition, the Report and 10 Recommendation of Judge Tsuchida, Petitioner’s Objections, and the remainder of the record, the 11 Court hereby finds and ORDERS: 12 (1) The Report and Recommendation, Dkt. #9, is APPROVED and ADOPTED. 13 (2) The habeas petition is dismissed with prejudice and issuance of a certificate of
14 appealability is denied. 15 (3) The Clerk shall send a copy of this Order to the parties and to the Honorable Brian A. 16 Tsuchida. 17 18 DATED this 27th day of July, 2021. 19 A 20 21 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 22
23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION