Smith v. Thrasher

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA — 6 — ALBERT K. SMITH, Case No. 3:24-cv-05901-JLR-TLF 7 Petitioner, v. ORDER DIRECTING PARTIES TO 8 SUBMIT SUPPLEMENTAL TIM THRASHER, BRIEFING — 9 — Respondent. — 10 — 11 The District Court has referred this action to United States Magistrate Judge 12 Theresa L. Fricke. Petitioner Albert K. Smith, proceeding pro se, filed a federal habeas 13 Petition pursuant to 28 U.S.C. § 2254 , seeking relief from a state court conviction. Dkt. 14 4. Mr. Smith is in custody under a Kitsap County judgment and sentence imposed on 15 March 31, 2017 for theft in the first degree and identity theft in the first degree. Dkt. 16-1 16 at 65-70 (State’s Exhibit 1, Judgment and Sentence, Kitsap County Cause No. 16-117 00732-3). 18 In Respondent’s Answer and Memorandum of Authorities, Respondent argues 19 Mr. Smith’s petition is untimely under 28 U.S.C. § 2244 (d) and should be dismissed on 20 that basis. Dkt. 15. 21 In his petition, Mr. Smith argues the Court should decide that 28 U.S.C. § 22 2244(d) does not bar him from raising an actual innocence claim, and he urges the 23 Court to consider the merits. He contends he has made a substantial showing of actual — 24 — 1 innocence through new evidence. Dkt. 4-1 at 15-16. Mr. Smith asserts there are tax 2 forms that would qualify as new evidence of actual innocence; he alleges the 3 documents in question were in the possession of the State in June 2017, but not 4 disclosed to Mr. Smith and his attorney until December 12, 2017. Dkt. 16-1 at 289-290 5 (State’s Exhibit 9, Pro Se Supplemental SAG, Court of Appeals Cause No. 50397-2-II). 6 He alleges if these tax forms were presented to the jury, they would not have found him 7 guilty of theft in the first degree and identity theft in the first degree. Id. See also Dkt. 4-1 8 at 26; Dkt. 4-2 at 14-31. 9 The United States Supreme Court has held that there is an equitable exception 10 to the AEDPA statute of limitations for a credible showing of actual innocence. 11 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The Supreme Court has cautioned, 12 however, that tenable actual innocence claims are rare. Id. “[A] petitioner does not meet 13 the threshold requirement unless he persuades the district court that, in light of the new 14 evidence, no juror, acting reasonably, would have voted to find him guilty beyond a 15 reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also 16 House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup standard is 17 demanding and rarely met). 18 To determine whether this standard is met, the Court considers “all the evidence, 19 including that alleged to have been illegally admitted (but with due regard to any 20 unreliability of it) and evidence tenably claimed to have been wrongly excluded or to 21 have become available only after trial.” Schlup, at 328 (internal quotation omitted); Lee 22 v. Lampert, 653 F.3d 929 , 938-945 (9th Cir. 2011) (en banc). The petitioner is required 23 to produce new reliable evidence not presented at trial, to substantiate a claim of actual — 24 — 1 innocence – factual innocence, not simply legal insufficiency -- that would open the 2 gateway under Schlup. Id. , at 324; Jaramillo v. Stewart, 340 F.3d 877, 882-884 (9th Cir. 3 2003); Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002). 4 In order to make a credible claim of actual innocence, a petitioner must “support 5 his allegations of constitutional error with new reliable evidence – whether it be 6 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 7 evidence – that was not presented at trial.” Schlup, 513 U.S. at 324 . The Supreme 8 Court in McQuiggin further held that, “a federal habeas court, faced with an actual9 innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, 10 not as an absolute barrier to relief, but as a factor in determining whether actual 11 innocence has been reliably shown.” Id. at 387 . 12 Respondent references Mr. Smith’s “new evidence” and “actual innocence” 13 argument briefly without discussing the specific new evidence Mr. Smith refers to in his 14 petition. Dkt. 15 at 13. At this time, the Court does not have sufficient briefing to 15 determine whether Mr. Smith has made a credible showing of actual innocence based 16 on the tax forms that were not presented during his trial. 17 Thus, the Court ORDERS the following: 18 1) Respondent must submit supplemental briefing addressing Mr. Smith’s 19 claim of actual innocence and whether Mr. Smith’s petition should be 20 equitably tolled as a result. Respondent’s brief should be submitted by 21 June 20, 2025. 22 2) Mr. Smith can respond to Respondent’s supplemental briefing on this 23 limited issue by July 11, 2025; and — 24 — 1 3) The Clerk is directed to re-note Mr. Smith’s petition to July 11, 2025. — 2 — — 3 — — 4 — Dated this 30th day of May, 2025. — 5 — — 6 — 7 A 8 Theresa L. Fricke United States Magistrate Judge — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —