Opinion
CASE NO. 2:20-cv-01327-RSM-BAT
11-20-2020
NIKOLAY VLADIMIROV SLOBODA , Petitioner, v. DEPARTMENT OF CORRECTIONS (MONROE)
REPORT AND RECOMMENDATION
Petitioner, Nilolay V. Sloboda, submitted for filing a petition for writ of habeas corpus on September 1, 2020. Dkt. 1. After he paid the filing fee on September 11, 2020, the Court filed the habeas petition. Petitioner filed his matter using a Form Petition for Writ of Habeas Corpus under 28 U.S.C § 2241. Dkt. 1, 4. However, because petitioner challenges his 2007 state conviction and sentence in King County Superior Court, Case Number 04-1-11764-6 for second degree murder with the deadly weapon enhancement, and seeks release from the conviction and sentence, the Court construes the petition as brought under 28 U.S.C § 2254.
On October 28, 2020, respondent filed the state court record and a response contending the habeas petition should be dismissed as untimely. Dkts. 7, 8. The response was noted for November 20, 2020 for the Court's consideration. Petitioner has not filed any pleadings in opposition to respondent's response. The Court has reviewed the habeas petition, respondent's response, the state court record, and the balance of the record and recommends the petition should be DISMISSED with prejudice as untimely. The Court also recommends DENIAL of issuance of a certificate of appealability (COA).
DISCUSSION
A. Background
In 2007, petitioner was convicted of murder in the second degree while armed with a deadly weapon and sentenced in the King County Superior Court, Washington, to serve 244 months of imprisonment. Dkt. 8 ex. 1 (judgment and sentence). Petitioner filed a direct appeal and the Court of Appeals issued a decision affirming the conviction and sentence on November 24, 2008. Dkt. 8 ex. 2 (State v. Sloboda, 147 Wn. App 1034 (Div. I. 2008)). Petitioner did not seek review of the State Court of Appeal's decision in the Washington Supreme Court and did not file a writ of certiorari in the United States Supreme Court.
Petitioner filed his first state petition for collateral relief (personal restraint petition or PRP) challenging his King County conviction in the King County Superior Court on September 16, 2011. The Superior Court transferred the PRP to the Washington Court of Appeals. Dkt. 8, ex. 4 and 5. The Washington Court of Appeals dismissed the PRP as untimely and petitioner did not seek review of that decision. Id. ex. 6.
On September 1, 2020, petitioner submitted for filing the petition for writ of habeas corpus now before the Court.
B. Section 2241 versus Section 2254
The present habeas petition was submitted using a form "Petition for Writ of Habeas Corpus under 28 U.S.C. 2241." Section 2241 provides the authority for granting habeas relief to a person "who is not in custody pursuant to a state court judgment" but, rather, who is in custody for some other reason, such as pretrial detention or awaiting extradition. White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004). In contrast, when a prisoner is in custody pursuant to a state court judgment, § 2254 constitutes the only habeas remedy for any challenge to his detention, regardless of the nature of such a challenge. White, 370 F.3d at 1009-10 (holding § 2254 was a state prisoner's exclusive remedy when he sought to challenge his transfer from a state prison to a privately-run prison in another state). "Section 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction." Id.
28 U.S.C. § 2241 and 28 U.S.C. § 2254 thus cover separate situations." White, 370 F.3d at 1008. A federal court faced with a habeas petition must conduct "a 'status inquiry into the source of the petitioner's custody, and not an inquiry into the target of the petitioner's challenge.'" Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (citation omitted). "[I]t is only when § 2254 does not apply to a state prisoner (because he is not in custody pursuant to a state court judgment) that he can resort to the Constitution, Article I, Section 9, Clause 2, and § 2241 (to the extent it is different than the Great Writ protected by the Constitution)." White, 370 F.3d at 1007; see also id. ("when a [state] prisoner begins in the district court, § 2254 and all associated statutory requirements apply no matter what statutory label the prisoner has given the case'") (citation omitted).
Here, petitioner requests federal habeas relief from his state conviction and sentence seeking immediate release from imprisonment arguing (1) he acted in self-defense; (2) he should have been charged as a juvenile instead of an adult; and (3) he is a good person. Dkt. 4 (habeas petition). Petitioner is challenging his state conviction and sentence underlying his current incarceration, and his request for relief must therefore be brought under § 2254. The Court accordingly construes petitioner's habeas petition as brought under § 2254.
B. Timeliness of § 2254 Habeas Petition
A federal habeas corpus petition filed under § 2254 by persons imprisoned under a state court judgment is subject to a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A), "[t]he limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . ." Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (emphasis added).
For purposes of 28 U.S.C. § 2244(d)(1)(A), direct review generally concludes and the judgment becomes final either upon the expiration of the time for filing a petition for writ of certiorari with the Supreme Court, or when the Court rules on a timely filed petition for certiorari. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). When there is no direct review or the direct review process terminates prior to reaching the state's highest court, however, the judgment becomes final on an earlier date. Gonzalez v. Thaler, 132 S. Ct. 641, 652-56 (2012); Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001). If the intermediate appellate court affirms the judgment and sentence on direct appeal, and the petitioner does not timely seek review by the state supreme court, the direct review process concludes upon expiration of time for seeking review by the state supreme court and the judgment becomes final on that date. Gonzalez, 132 S. Ct. at 653-54.
In this case, in September 2007 a jury found petitioner guilty of intentional murder in the second degree, and felony murder in the second degree. The jury also found petitioner committed the offense while armed with a deadly weapon. The state trial judge sentenced petitioner to 244 months of imprisonment. Petitioner filed a direct appeal and on November 24, 2008, the Washington State Court of Appeals affirmed the conviction and sentence. State v. Sloboda, 147 Wash. App.1034, (Div. I, 2008). Washington State Court records do not indicate petitioner sought further review following affirmance by the State Court of Appeals, though petitioner avers his case was "transferred" by the State Court of Appeals" to the "Supreme Court" and the State Supreme Court denied relief on September 27, 2019. The State Court record submitted by respondent also indicate that petitioner did not seek review of the Court of Appeals decision issued in 2008 and which denied relief.
See https://dw.courts.wa.gov/index.cfm?fa=home.casesummary&casenumber=607332&searchtype=aName&crt_itl_nu=form.CRT_ITL_NU&filingDate=2007-10-1800:00:00.0&courtClassCode=A&casekey=12647289&courtname=COA, Division I
Because petitioner did not seek further state review following the State Court of Appeal's 2008 decision and did not file a writ of certiorari in the Supreme Court, his judgment became final for purposes of the federal habeas statute of limitations no later than December 25, 2008. This is because the Court of Appeals issued a decision affirming the conviction, petitioner did not seek review of the decision in the Washington State Supreme Court, and the 90th day by which he could have filed a petition for writ of certiorari in the Supreme Court expired December 25, 2008.
The federal habeas limitations time thus started to run from December 25, 2008 and expired a year later in December 2009. By the time petitioner filed his first PRP challenging his murder conviction on September 16, 2011, (Dkt. 8, Ex. 5) the time to bring a federal habeas corpus petition had long expired. The claims petitioner raises in his federal habeas petition are claims he knew about in 2008 and which he in fact previously raised in his direct appeal. In his federal habeas petition he contends he should be granted habeas relief from his state conviction and sentence and released immediately because (1) he acted in self-defense; (2) he should have been charged as a juvenile instead of an adult; and (3) he is a good person.
In the decision issued on direct appeal, the Court of Appeals noted petitioner raised as additional grounds for relief that he acted in self-defense, his actions were reasonable and that the state failed to meet its burden of proof. The Court rejected these claims. Dkt. 8, ex. 2 at 16. The Court of Appeals also rejected the other claims petitioner through counsel raised: the trial court erred in denying a motion to proceed pro se with standby counsel; the prosecutor committed reversible misconduct during closing argument by vouching for the credibility of a witness; and the state's evidence was insufficient to disprove self-defense.
Because the present federal habeas action is untimely, the Court has considered whether there are equitable reasons to toll the statute of limitations. Holland v. Florida, 560 U.S. 631, 130 (2010) ("§ 2244(d) is subject to equitable tolling in appropriate cases"). "[A] petitioner is entitled to equitable tolling only if he shows (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing." Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir.), cert. denied, 568 U.S. 1053 (2012). (quoting Holland, 130 S.Ct. at 2562) (internal quotation marks omitted). "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. (quoting Holland, 130 S.Ct. at 2565) (internal quotation marks omitted). "[T]he requirement that extraordinary circumstances 'stood in his way' suggests that an external force must cause the untimeliness, rather than, as we have said, merely 'oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.'" Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir.2008)).
Nonetheless, "[g]rounds for equitable tolling under § 2244(d) are 'highly fact-dependent.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (per curiam)); see also Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir.2011) ("[l]ike any equitable consideration, whether a prisoner is entitled to equitable tolling under AEDPA will depend on a fact-specific inquiry by the habeas court which may be guided by 'decisions made in other similar cases'" (quoting Holland, 130 S.Ct. at 2563)).
Here, all of the claims that petitioner presents in the federal habeas petition are claims based upon information he possessed in 2007; indeed, some of the claims now presented were in fact presented on direct appeal to the Washington Court of Appeals that year. There is thus no reason why petitioner failed to file a PRP by December 2009 rather than waiting until 2010 and 2011 to seek collateral relief. As the Washington Court of Appeals noted in its order dismissing petitioner's PRP, petitioner sought PRP relief so he could testify he was acting in self-defense, that he never intended the victim to die, and that the Superior Court should reduce his sentence and release him. Dkt. 8, ex. 6. The Court of Appeals noted that more than one year had elapsed since petitioner's murder conviction and sentence had become final following direct review and that his PRP was therefore untimely. The Court of Appeals accordingly dismissed petitioner's PRP as untimely, and also because it failed to identify any grounds for relief. Id.
The history of this case establishes petitioner could have raised the claims he now presents many years ago. Instead of raising the claims in a timely fashion in the state courts and then filing a timely federal habeas petition, he waited until long past the statute of limitations had expired. The time by which a federal habeas petition was required to be brought lapsed many years ago. There are no equitable grounds to toll the statute of limitations and the present habeas petition is thus untimely and should accordingly be dismissed with prejudice.
CERTIFICATE OF APPEALABILITY
If the district court adopts the Report and Recommendation, it must determine whether a certificate of appealability ("COA") should issue. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). A COA may be issued only where a petitioner has made "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Wilson-El v. Cockrell, 537 U.S. 322, 327 (2003).
The undersigned recommends a COA not be issued because no reasonable jurist could disagree the habeas petition should be dismissed as untimely.
CONCLUSION
The Court recommends DENYING the present habeas petition on the merits as untimely and DISMISSING the case with prejudice. Issuance of a COA should be denied.
Any objections to this Recommendation must be filed and served upon all parties no later than December 4, 2020. The Clerk should note the matter for December 4, 2020, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. Objections and responses shall not exceed eight (8) pages. The failure to timely object may affect the right to appeal.
DATED this 20th day of November, 2020.
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge