Stover v. White

• Court: District Court, W.D. Washington
• Decided: May 3, 2024
• Docket: 3:23-cv-05649
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SHANNON WAYNE STOVER, CASE NO. 3:23-cv-05649-LK 11 Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 LISA ANDERSON, 14 Respondent. 15

16 This matter comes before the Court on the Report and Recommendation (“R&R”) of 17 United States Magistrate Judge Theresa L. Fricke. Dkt. No. 12. Judge Fricke recommends 18 dismissing pro se Petitioner Shannon Stover’s federal habeas petition brought pursuant to 28 19 U.S.C. § 2254. Id. at 1. Mr. Stover timely objected to the R&R. Dkt. No. 13. Having reviewed 20 Judge Fricke’s recommendations, Mr. Stover’s objections, and the balance of the record, the Court 21 adopts the R&R. 22 I. BACKGROUND 23 A. State Court Procedural History 24 Mr. Stover is currently confined at the Monroe Correctional Complex (“MCC”). Dkt. No. 1 3 at 1.1 In October 2017, Mr. Stover pleaded guilty in Clark County Superior Court to two counts 2 of Unlawful Imprisonment, one count of Intimidating a Witness, one count of Unlawful Possession 3 of a Firearm in the First Degree, and two counts of Attempted Rape in the Third Degree. Dkt. No. 4 8-1 at 69, 94–105. On November 1, 2017, he was sentenced to 360 months of confinement. Id. at

5 69, 71–72, 78, 87–89. 6 Approximately four years later, in October 2021, Mr. Stover filed a “Notice of Appeal” 7 which the state court of appeals dismissed as untimely. Dkt. No. 8-1 at 2, 128. That ruling became 8 final on January 13, 2022. Id. at 130; see also Dkt. No. 3 at 32. Mr. Stover then filed a personal 9 restraint petition (“PRP”) in the court of appeals in April 2022, which the court likewise dismissed 10 as untimely on November 4, 2022. Dkt. No. 3 at 22–23. On November 29, 2022, Mr. Stover filed 11 a motion for reconsideration in the court of appeals, which that court forwarded to the Washington 12 Supreme Court for consideration as a motion for discretionary review under Rule of Appellate 13 Procedure 16.14(c). Dkt. No. 8-1 at 133–42, 145–46. The Supreme Court denied Mr. Stover’s 14 motion on January 31, 2023 because he failed to show that his sentence is facially invalid. Dkt.

15 No. 3 at 25–26; Dkt. No. 8-1 at 148–49. And on May 3, 2023, the court denied his subsequent 16 motion to modify its ruling. Dkt. No. 3 at 27; Dkt. No. 8-1 at 216.2 Thus, the court of appeals’ 17 dismissal of Mr. Stover’s PRP became final on May 3, 2023. Dkt. No. 3 at 28. 18 On January 17, 2023, Mr. Stover filed a second PRP in Clark County Superior Court, styled 19

20 1 In his petition, Mr. Stover properly named Daniel White as respondent because at the time of filing, White was the Superintendent of the Twin Rivers Unit (“TRU”) at MCC. Id.; see also Rumsfeld v. Padilla, 542 U.S. 426, 434–35 21 (2004) (explaining that the proper respondent to a habeas petition is the person with “immediate custody” over the petitioner); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (same). During the pendency of these proceedings, however, White appears to have been replaced by Lisa Anderson. See Department of Corrections 22 Washington State, State Prisons, https://doc.wa.gov/corrections/incarceration/prisons/contact.htm#mcc (last visited May 2, 2024). Accordingly, the Court substitutes as respondent Mr. Stover’s current immediate custodian at MCC, 23 Superintendent Anderson, pursuant to Federal Rule of Civil Procedure 25(d). 2 In the interim, on April 12, 2023, Mr. Stover also submitted a “Statement of Additional Authority” to the Washington 24 Supreme Court. Dkt. No. 8-1 at 212–13. 1 as a motion for relief from judgment or order pursuant to Criminal Rule 7.8(b), which the court 2 denied as time-barred and transferred to the court of appeals. Dkt. No. 3 at 30–35; Dkt. No. 8-1 at 3 160–65. The court of appeals dismissed Mr. Stover’s petition as untimely on March 7, 2023. Dkt. 4 No. 8-1 at 167–70. And on April 5, 2023, the Washington Supreme Court denied Mr. Stover’s

5 request for discretionary review. Id. at 179–90 (motion), 254–56 (denial). Mr. Stover also filed a 6 motion to modify that ruling, Dkt. No. 8-1 at 151–58, which the Supreme Court denied on June 7, 7 2023, Dkt. No. 3 at 44–45. 8 B. Habeas Petition and R&R 9 Mr. Stover filed his habeas petition pursuant to 28 U.S.C. § 2254 in this court on July 19, 10 2023, raising seven claims with respect to his state court criminal proceedings: (1) incorrect 11 offender score; (2) illegal exceptional sentence; (3) significant change in law; (4) police and 12 prosecutorial misconduct; (5) actual innocence; (6) ineffective assistance of counsel; and 13 (7) denial of a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Dkt. No. 3 at 1–20; 14 Dkt. No. 3-1 at 1–21.

15 After Respondent was served and filed a response, Dkt. Nos. 4, 7, Judge Fricke issued her 16 R&R recommending dismissal with prejudice because the one-year statute of limitations under the 17 Antiterrorism and Effective Death Penalty Act (“AEDPA”) expired for Mr. Stover on December 18 1, 2018, and therefore his petition is time-barred. Dkt. No. 12 at 4–6, 10. Judge Fricke also 19 explained that because Mr. Stover’s collateral attacks on his state court proceedings were found to 20 be untimely, they cannot serve as a basis for statutory tolling under 28 U.S.C. § 2244(d)(2). Id. at 21 6. Further, the R&R found that Mr. Stover failed to demonstrate the type of extraordinary 22 circumstances necessary to entitle him to equitable tolling, or to show actual innocence sufficient 23 to exempt him from AEDPA’s statute of limitations. Id. at 6–8. Last, Judge Fricke recommends

24 denying Mr. Stover an evidentiary hearing and a certificate of appealability. Id. at 9–10. 1 Mr. Stover timely objected to the R&R, reiterating his claim that he is actually innocent 2 and that an evidentiary hearing is required. Dkt. No. 13 at 1–6. He also objects to the R&R’s failure 3 to address the substance of his request for a Franks hearing or his claim of ineffective assistance 4 of counsel. Id. at 6–10.

5 II. DISCUSSION 6 A. Legal Standards 7 1. Reviewing the R&R 8 The Court “shall make a de novo determination of those portions of the report or specified 9 proposed findings or recommendations to which objection is made,” and “may accept, reject, or 10 modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 11 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (the Court “must determine de novo any 12 part of the magistrate judge’s disposition that has been properly objected to.”). As the statute and 13 rule suggest, the Court reviews findings and recommendations de novo “if objection is made, but 14 not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

15 2. AEDPA Statute of Limitations and Equitable Exceptions 16 A person in custody pursuant to a state court judgment may petition for a writ of habeas 17 corpus within one year of the latest of the following: 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 19 (B) the date on which the impediment to filing an application created by State action 20 in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 21 (C) the date on which the constitutional right asserted was initially recognized by 22 the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 23 (D) the date on which the factual predicate of the claim or claims presented could 24 have been discovered through the exercise of due diligence. 1 28 U.S.C. § 2244(d)(1). Under AEDPA, this one-year statute of limitations is tolled during the 2 time “which a properly filed application for State post-conviction or other collateral review with 3 respect to the pertinent judgment or claim is pending[.]” 28 U.S.C. § 2244(d)(2); see Stewart v. 4 Cate, 757 F.3d 929, 934 (9th Cir. 2014). And because AEDPA’s limitations period is not a 5 jurisdictional bar, it may be equitably tolled if a petitioner can show “‘(1) that he has been pursuing 6 his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented 7 timely filing.” Holland v. Florida, 560 U.S. 631, 645, 649 (2010) (quoting Pace v. DiGuglielmo, 8 544 U.S. 408, 418 (2005)). 9 In addition, “a credible claim of actual innocence constitutes an equitable exception to 10 AEDPA’s limitations period[.]” Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc); 11 accord McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). This rare exception “serves as an 12 additional safeguard against compelling an innocent man to suffer an unconstitutional loss of 13 liberty, guaranteeing that the ends of justice will be served in full.” Lampert, 653 F.3d at 934 14 (cleaned up). A claim of actual innocence is “not itself a constitutional claim, but instead a gateway 15 through which a habeas petitioner must pass to have his otherwise barred constitutional claim 16 considered on the merits.” Schlup v. Delo, 513 U.S. 298, 315 (1995) (citation omitted). To be 17 entitled to this equitable exception, “the petitioner must show that it is more likely than not that no 18 reasonable juror would have convicted him in the light of the new evidence,” id. at 327, “not 19 merely . . . that a reasonable doubt exists in the light of the new evidence,” id. at 329; see also 20 Lampert, 653 F.3d at 937–38 (“The evidence of innocence must be ‘so strong that a court cannot 21 have confidence in the outcome of the trial unless the court is also satisfied that the trial was free 22 of nonharmless constitutional error.’” (quoting Schlup, 513 U.S. at 316)). “‘New’ evidence under 23 Schlup does not actually have to be newly discovered,” but rather “‘newly presented,’ as in ‘not 24 1 presented at trial.’” Gable v. Williams, 49 F.4th 1315, 1322 (9th Cir. 2022), cert. denied sub nom. 2 Steward v. Gable, 143 S. Ct. 1796 (2023). This standard “requires the district court to make a 3 probabilistic determination about what reasonable, properly instructed jurors would do.” Schlup, 4 513 U.S. at 329; see also Gable, 49 F.4th at 1323 (“Ultimately, Schlup demands a holistic review

5 of all the new evidence against the full record.”). And importantly, “actual innocence” in this 6 context “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 7 U.S. 614, 623 (1998). 8 B. Mr. Stover’s Petition Is Time-Barred 9 Mr. Stover does not object to the R&R’s conclusion that, absent the application of statutory 10 or equitable exceptions, his habeas petition is time-barred. See generally Dkt. No. 13. And 11 although his objections rehash the same arguments he made in his petition and reply and do not 12 raise any novel issues that were not considered by Judge Fricke, the Court independently dismisses 13 his petition. 14 First, Mr. Stover filed his federal habeas petition on July 19, 2023, more than one year after

15 the AEDPA statute of limitations began to run following the expiration of the period for him to 16 seek direct review on any of his claims. See 28 U.S.C. § 2244(d)(1)(A); Dkt. No. 12 at 5–6; see 17 also Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (under Section 2244(d)(1)(A), a judgment 18 becomes final when the time for seeking direct review in state court expires); Dkt. No. 8-1 at 128 19 (dismissing late-filed October 2021 direct appeal as untimely).3 And Mr. Stover does not object to 20

3 Mr. Stover does not specify, nor can the Court discern, a “date on which the factual predicate of the claim or claims 21 presented could have been discovered through the exercise of due diligence” under 28 U.S.C. § 2244(d)(1)(D) in order to make his petition timely. See generally Dkt. Nos. 3, 3-1, 10, 13. Rather, Mr. Stover primarily argues that the one- 22 year AEDPA statute of limitations does not apply based on the holdings in Martinez v. Ryan, 566 U.S. 1 (2012) and Weber v. Sinclair, No. C08-1676-RSL, 2014 WL 1671508, at *1 (W.D. Wash. Apr. 28, 2014), aff’d, 679 F. App'x 639 23 (9th Cir. 2017). See Dkt. No. 3 at 18–19; Dkt. No. 3-1 at 16–19; Dkt. No. 10 at 2–4, 6–7; Dkt. No. 13 at 8, 10. However, Martinez and its progeny are inapposite because “Martinez does not address or create an exception to the AEDPA statute of limitations,” but instead recognizes “a narrow means by which a prisoner can show ‘cause’ to excuse a state 24 1 the R&R’s conclusion that his subsequent untimely pursuit of post-conviction relief in state court 2 did not toll AEDPA’s statute of limitations under Section 2244(d)(2). See generally Dkt. No. 13; 3 Dkt. No. 12 at 5–6; see also Pace, 544 U.S. at 417 (“Because the state court rejected petitioner’s 4 [state] petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling

5 under § 2244(d)(2).”); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 6 2244(d) does not permit the reinitiation of the limitations period that has ended before the state 7 petition was filed.”). 8 Second, the R&R accurately addressed Mr. Stover’s arguments regarding the equitable 9 exception of actual innocence. Dkt. No. 12 at 6–8.4 At best, his “newly presented” evidence creates 10 “a reasonable doubt,” Schlup, 513 U.S. at 329, or speaks to the “legal insufficiency” of the 11 underlying proceedings, Bousley, 523 U.S. at 623. Mr. Stover does not show that “it is more likely 12 than not that no reasonable juror would have convicted him in the light of the new evidence.” 13 Schlup, 513 U.S. at 327. For instance, Mr. Stover points to slight inconsistencies regarding 14 witnesses’ descriptions of vehicles and the location of shrubbery outside his home as his new

15 evidence. See, e.g., Dkt. No. 3-1 at 6–9, 12–15; Dkt. No. 13 at 2–4. Otherwise, Mr. Stover simply 16 makes conclusory assertions in support of his claim of actual innocence. See, e.g., Dkt. No. 3-1 at 17 5 (“I presented a significant amount of ‘newly presented evidence’ that should have triggered the 18 ‘gateway actual innocence claim’ and allowed me to present to the court procedurally barred 19

20 procedural default of a claim based upon alleged ineffective assistance of counsel at trial.” McDowell v. Ryan, No. CV-19-00918-PHX-GMS (JZB), 2020 WL 1015182, at *5 (D. Ariz. Feb. 5, 2020), report and recommendation 21 adopted, 2020 WL 1000052 (D. Ariz. Mar. 2, 2020); see also Hendon v. Burton, No. 23-CV-02775-HSG, 2023 WL 7440289, at *2 (N.D. Cal. Nov. 9, 2023); Gant v. Barnes, No. CV 14-2618-CJC (SP), 2017 WL 3822063, at *8 (C.D. Cal. July 19, 2017), report and recommendation adopted, 2017 WL 3738384 (C.D. Cal. Aug. 28, 2017). 22 4 As both Respondent and Judge Fricke point out, Mr. Stover does not adequately demonstrate that equitable tolling applies in general based on his diligence and extraordinary circumstances. See Dkt. No. 7 at 11–12; Dkt. No. 12 at 6– 23 7; see also Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc) (“[I]t is only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing that equitable tolling 24 may be the proper remedy.”). 1 evidence of both actual innocence as well as 4th, 14th and 6th Amendment ineffective assistance 2 of counsel claims.”); id. at 15 (“The evidence that I have produced is ‘newly presented’, and in 3 itself should prove to this court, that without false and fabricated evidence, the outcome would 4 most certainly have been different[.]”); Dkt. No. 10 at 4–5 (“[T]he evidence I presented in support

5 of my allegations regarding my claim and request for an evidentiary-Franks hearing . . . is in fact 6 ‘newly presented’ evidence, as it is very material to the allegations, and at no time had ever been 7 presented before the trial court.”); Dkt. No. 13 at 4 (“Taking into consideration all the evidence 8 proffered, there simply is no evidence, outside of falsified evidence, that proves Mr. Stover had 9 anything to do with alleged crimes.”); id. at 5 (“[E]very allegation that Mr. Stover puts forward is 10 wholly supported, and in fact IS new and reliable.”). Mr. Stover’s showing does not meet the high 11 bar necessary to “pass through” the Schlup gateway and have his otherwise barred constitutional 12 claims considered on the merits. Schlup, 513 U.S. at 316. This is particularly so in light of the 13 officer affidavit in the record—which Mr. Stover does not dispute—attesting that the police 14 recovered video evidence from Mr. Stover’s property showing him engaging in some of the

15 activities to which he pleaded guilty. See Dkt. No. 8-1 at 63. 16 Accordingly, the Court adopts the R&R’s conclusion that Mr. Stover’s petition should be 17 dismissed with prejudice because it is time-barred. 18 C. Evidentiary Hearing 19 Mr. Stover objects to Judge Fricke’s recommendation that this matter be decided without 20 an evidentiary hearing. See Dkt. No. 12 at 9; Dkt. No. 13 at 4–6. “In deciding whether to grant an 21 evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant 22 to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal 23 habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). A hearing is not required if the

24 allegations would not entitle the petitioner to relief under 28 U.S.C. § 2254(d). Id. Here, because 1 the timeliness of Mr. Stover’s petition as well as his actual innocence claim can be resolved on the 2 record before it, the Court agrees that no evidentiary hearing is necessary. See Stewart v. Cate, 757 3 F.3d 929, 942 (9th Cir. 2014) (affirming district court’s denial of evidentiary hearing where new 4 evidence did not adequately support actual innocence claim); see also Roberts v. Marshall, 627

5 F.3d 768, 772–73 (9th Cir. 2010) (no obligation to hold evidentiary hearing when no extraordinary 6 circumstance caused untimely filing of habeas petition). 7 D. Certificate of Appealability 8 Last, Judge Fricke recommends that the Court deny a certificate of appealability because 9 Mr. Stover has not made the required “substantial showing of the denial of a constitutional right.” 10 Dkt. No. 12 at 9–10 (quoting 28 U.S.C. § 2253(c)(2)). “A petitioner satisfies this standard by 11 demonstrating that jurists of reason could disagree with the district court’s resolution of his 12 constitutional claims or that jurists could conclude the issues presented are adequate to deserve 13 encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 14 Mr. Stover does not specifically object to this aspect of the R&R, and the Court adopts this

15 recommendation as well because no reasonable jurist would conclude that the issues presented in 16 this petition should proceed further. 17 III. CONCLUSION 18 For the foregoing reasons, it is hereby ORDERED that: 19 (1) The Court OVERRULES Mr. Stover’s Objections, Dkt. No. 13, and ADOPTS the 20 Report and Recommendation, Dkt. No. 12. 21 (2) Mr. Stover’s petition is DISMISSED with prejudice. 22 (3) A certificate of appealability is DENIED. 23 //

24 // 1 (4) The Clerk is directed to send uncertified copies of this Order to Judge Fricke, all 2 counsel of record, and Mr. Stover. 3 4 Dated this 3rd day of May, 2024.

5 A 6 Lauren King United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23