Flett v. Stout, : 2:14-CV-0104 JPH
| Decision Date | 30 June 2014 |
| Docket Number | NO: 2:14-CV-0104 JPH,: 2:14-CV-0104 JPH |
| Court | U.S. District Court — District of Washington |
| Parties | GARY ARLAN FLETT, Petitioner, v. MAGGIE MILLER- STOUT, Respondent. |
BEFORE THE COURT is a Report and Recommendation by Magistrate Judge Hutton to dismiss Petitioner's habeas petition as untimely and because Petitioner is not entitled to the relief he seeks (ECF No. 5). The Court has considered Petitioner's timely Objections (ECF No. 6). Petitioner, a prisoner at the Airway Heights Corrections Center, is proceeding pro se and has paid the full $5.00 filing fee for this action; Respondent has not been served.
Petitioner objects to the finding that his habeas petition is time-barred under 28 U.S.C. § 2244(d). In his petition, Petitioner challenges the imposition ofconditions to his term of Community Placement by the Department of Corrections. The state appellate courts found his Personal Restraint Petition challenging the imposition of these conditions to be meritless. The Washington State Supreme Court issued its decision on December 21, 2012. Mr. Flett's habeas corpus petition was not mailed to the Court until April 16, 2014 (ECF No. 1, Attachment #1).
Petitioner asserts that "the time which the pertinent claim was pending should not be counted toward any period of limitation under 28 U.S.C. 2244(d)." It is not clear from the submissions when the federal limitations period actually commenced for Petitioner under 28 U.S.C. § 2244(d)(1), following his re-sentencing in 2001. Even liberally assuming that the Personal Restraint Petition "tolled" the running of a federal limitations period, the limitations period would have resumed on December 21, 2012, when the Washington State Supreme Court denied review. "[I]t is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review." See Wixom v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001). Because Petitioner submitted his federal habeas petition 481 days after a tolled limitations period presumably resumed, the present petition is clearly untimely under 28 U.S.C. § 2244, absent equitable tolling.
Petitioner asserts that the law-library was "shut down for renovations" between January 2, 2013, and early April 2013, which allegedly impeded hisaccess to legal resources. This would account for, at most, 98 days if the library remained closed through April 10, 2013. Petitioner, however, indicates that this merely impeded his access to legal resources. He does not claim that he was denied access altogether, or that he was unable to work on his federal habeas petition in his cell.
Petitioner also asserts that "a modified lock-down at the end of every month" impeded his efforts one day a month, requiring him to seek emergency access to the law library. Assuming without deciding that this excused an additional 16 days Petitioner has presented no facts showing that he diligently pursued his rights between December 12, 2012, and April 16, 2013. Holland v. Florida, 560 U.S. 631, 649 (2010). Therefore, Petitioner's federal habeas petition is untimely under 28 U.S.C. § 2244(d).
Petitioner's second objection is to the finding that he is not entitled to the relief he seeks. Petitioner contends that he is entitled, under state law, to have his case remanded to the trial court to specify "the exact term of community placement and specify any special conditions of placement." See State v. Ramos, 171 Wash.2d 46, 48, 246 P.3d 811 (2011).
Petitioner, however, admits that the trial court did specify his term of community placement as 24 months. He does not assert any "special conditions of placement" likely to be imposed. Petitioner is serving a 480 month sentence basedon his 1996 convictions. He does not allege that he has been denied release from incarceration because the DOC "corrected" what it viewed as errors of law in Petitioner's judgment and sentence. See Dress v. Washington State Dep't of Corr., 168 Wash....
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