Dawson v. Key

[3] 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 COURTNEY WAYNE DAWSON, Case No. 2:21-cv-1695-DGE-TLF 7 Petitioner, v. ORDER ADOPTING REPORT AND 8 RECOMMENDATION (DKT. NO. 25) JAMES R. KEY, [9] Respondent. [10] 11 The Court, having reviewed the Report and Recommendation (Dkt. No. 25) of United 12 States Magistrate Judge Theresa L. Fricke, Petitioner Courtney Wayne Dawson’s objections 13 (Dkt. No. 26), and the remaining record, hereby finds and ORDERS: 14 (1) The Report and Recommendation is APPROVED and ADOPTED. 15 a. The Court notes that, contrary to Petitioner’s assertions (Dkt. No. 26 at 1– 16 2), Judge Fricke did address his equitable tolling arguments. (See Dkt. 17 No. 25 at 9–11) (noting that “[t]he record before the Court indicates that 18 extraordinary forces did not prevent petitioner from raising the issue of 19 breach of plea agreement before the expiration of the AEDPA statute of 20 limitation.”). The Court agrees with the Report and Recommendation. 21 Petitioner has not put forward evidence that extraordinary circumstances 22 prevented him from filing a timely habeas petition. Ramirez v. Yates, 571 23 F.3d 993 , 997 (9th Cir. 2009). Nor has he presented evidence of ‘“serious [24] 1 instances of attorney misconduct”’ that prevented him from raising the 2 issue of a breach of the terms of his plea agreement on habeas review in a 3 timely fashion. See Milam v. Harrington, 953 F.3d 1128, 1133 (9th Cir. 4 2020) (quoting Holland v. Fla., 560 U.S. 631 , 652 (2010)); cf. Holland, 5 560 U.S. at 636–43 (2010) (discussing petitioner’s diligent efforts to 6 remind counsel of habeas deadlines and counsel’s negligence). 7 b. Petitioner also objects to the Report and Recommendation because it 8 failed to analyze whether his procedural default could be excused for 9 ineffective assistance of counsel under Martinez v. Ryan, 566 U.S. 1 10 (2012). (Dkt. No. 2–3.) However, the equitable exception established 11 under Martinez only applies to procedural default under state rules and 12 cannot mitigate Petitioner’s obligation under federal law to timely file his 13 habeas petition. See Shinn v. Ramirez, 142 S. Ct. 1718 , 1736 (2022) 14 (‘“Where Congress has erected a constitutionally valid barrier to habeas 15 relief, a court cannot decline to give it effect.”’) (quoting McQuiggin v. 16 Perkins, 569 U.S. 383, 402 (2013) (Scalia, J., dissenting). 17 (2) Petitioner’s federal habeas corpus petition is DISMISSED with prejudice; 18 (3) a Certificate of Appealability is DENIED; and 19 (4) the Clerk is directed to send copies of this Order to petitioner, to Magistrate Judge 20 Theresa L. Fricke and to any other party that has appeared in this action. 21 Dated this 27th day of March, 2023. [1] A [2] David G. Estudillo