Jamison v. Gilbert, No. 2:2016cv00079 - Document 21 (E.D. Wash. 2016)

Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS. ThePetition and the claims therein are dismissed with prejudice. The Court denies a certificate of appealability. Case closed. Signed by Senior Judge Justin L. Quackenbush. (CV, Case Administrator) **7 PAGES, PRINT ALL** (Tyler Jamison, Prisoner ID: 361091)

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Jamison v. Gilbert Doc. 21 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON 4 5 6 7 8 9 10 11 TYLER JAMISON, ) ) ) Petitioner, ) vs. ) ) ) MARGARET GILBERT, ) ) ) Respondent. ) ) No. 2:16-CV-00079-JLQ MEMORANDUM OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS BEFORE THE COURT is Petitioner's Petition under 28 U.S.C. § 2254 for Writ of 12 Habeas Corpus (ECF No. 11), Respondent's Answer (ECF No. 17), and Petitioner's Reply 13 (ECF No. 20). Pursuant to Rule 8(a) of the Rules Governing Section 2254 Cases, this 14 court has reviewed the record and determined no evidentiary hearing is warranted. 15 I. Introduction and Factual Background 16 Petitioner was convicted, after a jury trial, of two counts of Assault of a Child in 17 the First Degree on July 20, 2012. On October 1, 2012, Petitioner was sentenced to a 18 total term of 360 months, composed of 180 months on each count to be served 19 consecutively. (ECF No. 191, Ex. 1). The abuse inflicted on Petitioner's infant daughter is 20 set forth in great detail in the May 20, 2014 unpublished opinion of the Washington 21 Court of Appeals. (Id. at Ex. 2). A detailed factual recitation will not be repeated here, 22 but the introductory paragraph of the Washington Court of Appeals' Opinion gives a brief 23 summary of the nature of the offense: 24 25 26 Tyler Jamison choked, smothered, squeezed, and bounced his infant daughter, S.J., on multiple occasions, in an attempt to stop the baby's crying. Jamison fractured his daughter's ribs, bruised much of her body, and caused her severe brain damage. As a result of the horrific acts, S.J. is now blind. A feeding tube sustains her. She is nonresponsive. (Id. at Ex. 2 p. 1). 27 28 1 Portions of the State Court record are referenced on the docket at ECF No. 19 and available in paper format in Clerk's Office. ORDER 1 Dockets.Justia.com 1 The instant Petition argues his two convictions were for the same criminal conduct 2 and that such is a violation of the Double Jeopardy provision of the Constitution. He 3 argues his two 180-month sentences were required to be run concurrently, and it was 4 error to run them consecutively. Respondent contends Petitioner's claim is barred by the 5 one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty 6 Act ("AEDPA"). Respondent further argues that if this court does reach the merits, 7 Petitioner is not entitled to relief as the state court adjudication was not an unreasonable 8 application of clearly established federal law. 9 II. Discussion 10 A. Statute of Limitations 11 Respondent, Margaret Gilbert, Superintendent of Stafford Creek Corrections 12 Center, filed her Answer on July 18, 2016 in which she claims the Petition for Writ of 13 Habeas Corpus is untimely under the so called Antiterrorism and Effective Death Penalty 14 Act ("AEDPA"), 28 U.S.C. § 2244, et. seq. Respondent seeks denial of the Petition with 15 prejudice on the basis that it is time-barred. 16 1. Timeline of Events Relevant to Statute of Limitations 17 1. July 20, 2012 - Petitioner is convicted by the jury of two counts of First Degree 18 19 20 21 22 23 24 25 26 27 28 Assault of a Child. 2. October 1, 2012 - Judgment and Sentence is entered in Washington Superior Court of Spokane County. 3. Petitioner timely appealed to the Washington Court of Appeals. Petitioner was represented by counsel on appeal. 4. May 20, 2014 - the Washington Court of Appeals affirmed in an unpublished opinion. 5. July 16, 2014 - Petitioner filed a pro se Petition for Review with the Washington Supreme Court. 6. November 5, 2014 - Washington Supreme Court issued an Order denying the Petition for Review. ORDER 2 1 7. November 18, 2014 - Washington Court of Appeals issued its mandate stating 2 that as of November 5, 2014, its Opinion of May 20, 2014, became the decision 3 terminating review. 4 8. March 22, 2016 - Petition for Writ of Habeas Corpus filed in this court. 5 The AEDPA imposes a one-year statute of limitations on habeas corpus petitions 6 filed by state prisoners in federal court. Specifically, 28 U.S.C. § 2244 provides in 7 relevant part: (d)(1) A 1-year period of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The 9 limitation period shall run from the latest of – (A) the date on which the judgment became final by the conclusion of direct 10 review or the expiration of the time for seeking such review; * * * * * 11 8 (2) The 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 13 not be counted toward any period of limitation under this subsection. 18 U.S.C. § 2244(d)(1) - (2). 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent argues after the Washington Supreme Court denied the Petition for Direct Review, Petitioner had 90-days to file a petition for writ of certiorari with the United States Supreme Court. (U.S. Supreme Court Rule 13.1) Respondent argues the judgment became final on February 3, 2015, 90 days after the denial of direct review because Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. If Respondent's position is correct, under AEDPA, the one-year statute of limitations began to run on February 3, 2015 and expired on February 3, 2016, unless the statute was tolled. Under § 2244(d)(2), the statue of limitations is tolled when a state application for post-conviction relief is pending. The Record submitted by Respondent does not reflect any post-conviction relief proceedings in state court. Respondent states, "Jamison did not file a post-conviction collateral challenge in state court." (ECF No. 17, p. 10). Petitioner does not refute this assertion. The one-year AEDPA statute of limitations has been upheld as constitutional. See Green v. White, 223 F.3d 1001 (9th Cir. 2000)("We join the other circuits that have considered the issue and hold that AEDPA's one-year limitation does not constitute a per ORDER 3 1 se violation of the Suspension Clause."). The one-year limitation does not render the writ 2 of habeas corpus inadequate or ineffective as it allows a petitioner a reasonable 3 opportunity to have his claims heard on the merits. Id. at 1004. Further, the limitations 4 period is not jurisdictional and is subject to equitable tolling. Id. at 1003-1004. Petitioner 5 has advanced no argument for equitable tolling. 6 In his Reply brief (ECF No. 20), Petitioner cites to RCW 10.73.100 and argues the 7 1-year statute of limitations does not apply because he is asserting a Double Jeopardy 8 claim. The statute he cites in support of his argument is a Washington state statute, 9 which reads in part: "The time limit specified in RCW 10.73.090 does not apply to a 10 petition or motion that is based solely on one or more of the following grounds ... (3) The 11 conviction was barred by double jeopardy under Amendment V of the United States 12 Constitution...". RCW § 10.73.100. This statute, by its plain terms, applies to RCW 13 10.73.090, which sets a one-year time limit for petitions or motions for collateral attack 14 which are filed in state court. The state statute does not extend the federal one-year 15 statute of limitations contained in the AEDPA. See Ferguson v. Palmateer, 321 F.3d 820, 16 823 (9th Cir. 2003)("It is unreasonable for a federal habeas petitioner to rely on a state 17 statute of limitations rather than the AEDPA's statute of limitations."). 18 On the record before the court, Respondent's argument is well taken. Petitioner did 19 not file a petition for writ of certiorari to the United States Supreme Court, nor did he file 20 a petition for post-conviction relief in state court. Accordingly, the AEDPA one-year 21 period of limitation began to run on February 3, 2015. The filing of his Petition in this 22 court, on March 22, 2016, was untimely. 23 B. The Merits 24 As Petitioner's filing was untimely, this court need not address the merits. 25 However, Respondent has presented argument on the merits, and the court will briefly 26 address the claims. Petitioner raises two arguments: 1) Double Jeopardy - - Petitioner 27 contends he was charged and convicted of two counts of Assault of a Child in the First 28 Degree; and 2) Same Criminal Conduct - Petitioner claims he can show the two ORDER 4 1 convictions were for the same criminal conduct which requires concurrent sentences. 2 (ECF No. 11, p. 5-7). Both of these issues were raised on direct appeal and addressed by 3 the Washington Court of Appeals. The Court of Appeals stated: "Jamison's two 4 convictions do not offend the double jeopardy prohibition because he committed more 5 than one offense, act, or transaction." (ECF No. 19, Ex. 2 at p. 13). The Court of Appeals 6 additionally found "each count required proof of a legal element, which the other does 7 not." (Id.). Specifically, the court stated: "Count two uniquely required the jury find that 8 the defendant had previously engaged in a pattern or practice of assaulting S.J., which 9 resulted in bodily harm that was greater than transient physical pain or minor temporary 10 marks." (Id.). 11 Petitioner has not established the Washington Court of Appeals decision is 12 "contrary to, or involved an unreasonable application of, clearly established Federal law, 13 as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d); Visciotti 14 v. Martel, 839 F.3d 845 (9th Cir. 2016). The Washington Court of Appeals found the 15 counts required different legal elements, and found the facts supported a finding he had 16 committed more than one offense. The court stated: "He committed multiple attacks or 17 intrusions on the safety of his daughter." (ECF No. 19, Ex. 2 at p. 13). Petitioner has not 18 established this is an "unreasonable determination of the facts in light of the evidence 19 presented in the State court proceeding." 28 U.S.C. 2254(d). 20 Concerning the same criminal conduct argument, Jamison states: "I can meet the 21 requirements to show same criminal conduct which would require concurrent sentences." 22 (ECF No. 11, p. 7). However, even if Jamison could now, on federal habeas review, 23 "meet the requirements to show same criminal conduct," that was his burden before the 24 trial court. The Washington Supreme Court in State v. Graciano, 176 Wash.2d 531 25 (2013), held a defendant bears the burden of production and persuasion on same criminal 26 conduct claims. The Washington Supreme Court stated a same criminal conduct finding 27 favors the defendant by lowering his offender score, and "because this finding favors the 28 defendant, it is the defendant who must establish the crimes constitute the same criminal ORDER 5 1 conduct." Id. at 539. The Washington Supreme Court further stated "same criminal 2 conduct does not have a constitutional dimension" and the legislature could allocate the 3 burden of proof. Id. at 539-540. "Two crimes manifest the same criminal conduct only if 4 they require the same criminal intent, are committed at the same time and place, and 5 involve the same victim." Id. at 540. In evaluating whether Jamison's convictions 6 constituted "same criminal conduct," the Washington Court of Appeals stated: "Tyler 7 Jamison intentionally assaulted S.J. repeatedly over the course of several weeks." (ECF 8 No. 19, Ex. 2 at p. 18). The Washington Court of Appeals observed that although both 9 counts of conviction encompassed Jamison's conduct on April 5th, "count two 10 encompasses more than just the morning of the 5th. Count two includes when Jamison 11 bounced S.J. on the couch previously, when Jamison fractured S.J.'s ribs about two weeks 12 prior, and when Jamison first choked S.J. prior to her March 17 emergency room visit." 13 (Id. at 19). Petitioner has not established this is an "unreasonable determination of the 14 facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). 15 III. Conclusion 16 Defendant's Petition was not filed within one-year of the date on which his 17 judgment became final and is time-barred. 28 U.S.C. § 2244(d)(1). In reviewing the 18 merits, ex gratia, the court finds Petitioner has not made a showing his sentence was the 19 result of unreasonable application of clearly established federal law, or involved an 20 unreasonable determination of facts. 28 U.S.C. § 2254(d)(1)&(2). 21 IT IS HEREBY ORDERED: 22 1. Petitioner's Petition for Writ of Habeas Corpus (ECF No. 11) is untimely under 23 the one-year AEDPA statute of limitations and Petitioner has presented no valid reason 24 for the tolling of the statute. 25 26 27 28 2. Petitioner's Petition for Writ of Habeas Corpus (ECF No. 11) is DENIED. The Petition and the claims therein are dismissed with prejudice. 3. Pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings, this court "must issue or deny a certificate of appealability when it enters a final order adverse ORDER 6 1 to the applicant." A certificate of appealability may issue only if the applicant has made a 2 substantial showing of the denial of a constitutional right, and the certificate must 3 indicate which specific issue or issues satisfy the showing. Slack v. McDaniel, 529 U.S. 4 473, 483 (2000). A “substantial showing” includes demonstrating reasonable jurists 5 could debate whether the petition should have been resolved in a different manner or the 6 issues presented were adequate to deserve encouragement to proceed further. Id. at 483- 7 84. Petitioner has not made such showing and the court DENIES a certificate of 8 appealability. 9 IT IS SO ORDERED. The Clerk is hereby directed to file this Order, enter Judgment in favor of Respondent, furnish copies to counsel and Mr. Jamison, and close the file. DATED this 2nd day of December, 2016. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER 7

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