JERRY L. HARRIS v. SANDRA CARTER
CASE NO. C05-885-JLR-MJB
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
January 31, 2006
MONICA J. BENTON, United States Magistrate Judge
REPORT AND RECOMMENDATION
I. INTRODUCTION AND SUMMARY CONCLUSION
Petitioner Jerry L. Harris is a state prisoner currently incarcerated at the Clallam Bay Corrections Center in Clallam Bay, Washington. He seeks relief under
The Washington Court of Appeals summarized the facts of related to petitioner‘s conviction as follows:
On October 21, 1995, Rene Vivas was shot and killed outside Murdock‘s Restaurant and Lounge in Ferndale, Washington. Todd Mihalcea, Murdock‘s bouncer, broke up a fight that night involving defendant Brett Johnston. Later that evening, he stopped another fight in Murdock‘s parking lot where several people were beating Johnston. Mihalcea took Johnston back to his associates, defendants Jerry Harris and Michael Sawyer. The three men persuaded Mihalcea not to call the police. When Mihalcea discovered the credit card the defendants presented was expired, they agreed to go to a cash machine to pay their tab. Mihalcea recorded the license plate number of Johnston‘s El Camino.
Kim Smith was a patron at Murdock‘s that evening and sat with Vivas and a group of other people, including defendant Harris. Smith noticed that Vivas had a large amount of money and wore an apparently valuable necklace. She also noticed that Harris was watching Vivas and whenever Harris noticed Smith looking at him, he looked away. Smith had “one of those funny feelings” about Harris and asked her companions if they knew who he was. No one did.
At closing time, Harris left Murdock‘s and walked around the corner out of Mihalcea‘s view. Soon afterwards, Vivas left Murdock‘s and followed Harris‘s route. Mihalcea heard a gunshot a short time later. Robbie Berg, a member of the band that had been playing at Murdock‘s, also heard the gunshot. He went around the corner and saw two men standing over Vivas’ prone body. One of the men pointed a gun at Berg and told him to leave. Berg ran and called 911. Mihalcea ran around the corner, saw Vivas lying on the ground and heard people running away.
Two Ferndale Police Officers were parked across the street from Murdock‘s at the time of the shooting. They heard the shot, and shortly afterwards were dispatched to Murdock‘s. After speaking with Mihalcea, they broadcast the El Camino‘s license plate number. Washington State Patrol Trooper Dan W. Turner heard the broadcast. He was following Johnston‘s El Camino because he suspected Johnston was driving under the influence of alcohol. Trooper Turner stopped the El Camino and saw defendants Harris and Sawyer in the passenger seats. Backup officers arrived a short time later and confirmed that Mihalcea‘s descriptions of the three men at Murdock‘s matched the men in the El Camino.
After a few hours, the defendants were taken for a gunshot residue test. No residue was found on any of their hands, but some of the officers saw “blood on the lower part of Mr. Harris’ right leg.” Harris also had
blood on his socks, shirt, and coat. Between 6 a.m. and 7 a.m., officers seized all three defendants’ clothing without a warrant. The clothing had been inventoried and was in the custody of the jail. At noon the same day, police served search warrants for hairs and fibers on the three defendants. Analysis at a forensic laboratory established that DNA from blood found on Harris‘s pants matched Vivas’ DNA profile. Later that afternoon, Detective Bob Watson and Russell Robinson interviewed Sawyer in the Whatcom County Jail after Sawyer waived his Miranda rights. Based on the information Sawyer gave them, the detectives found Vivas’ necklace and wallet in the dashboard of the El Camino,1 a gun Harris threw out of the window, and a second spent shell casing. Forensic analysis of the gun established that it ejected the spent shell casings found near Vivas’ body and in the El Camino.
The defendants were charged with aggravated first degree murder and first degree felony murder. Harris moved pretrial and during trial to sever his case from the codefendants. He also moved to admit certain “confessions” Sawyer made during his months in custody before trial that allegedly exonerated Harris. After a hearing, the trial court denied all the motions.
Harris tried to offer details of a robbery at the Evergreen Motel in Bellingham four days before Vivas was murdered. During the robbery, Sawyer threatened Steve Whitten with a gun, then pistol-whipped him. The gun discharged and grazed Whitten‘s head. Harris held Whitten‘s wife to keep her from helping Whitten. Harris also kicked Whitten and yelled at him to give Sawyer the money they wanted. Sawyer and Harris were convicted of the robbery in July 1996. The trial court denied the motion to admit details of the Evergreen robbery as irrelevant and prejudicial.
During trial, Sawyer‘s counsel asked Detective Watson if he knew that Sawyer was not a “gun person.” Harris again moved to present evidence of the Evergreen robbery to rebut the interference that Sawyer did not handle guns. The trial court denied the motion, struck the question and answer, and instructed the jury to disregard them.
Harris was convicted of aggravated first degree murder. The parties later realized that many of the jury instructions used by the jury during their deliberations included citations to authority.
Dkt. #9 at Ex. 7 Unpublished Opinion, State v. Sawyer, 1999 WL 619071 (Wash. App.
Petitioner timely appealed his conviction to the Washington Court of Appeals, Div. I (“court of appeals“), raising a number of issues. Id. at Ex. 3. The court of appeals affirmed his conviction in an unpublished opinion issued on August 16, 1999. Id. at Ex. 7. Petitioner sought discretionary review in the Washington State Supreme Court (“state supreme court“), which denied the petition for review without comment on February 29, 2000. Id. at Ex. 9.
On February 20, 2001, Petitioner filed a Personal Restraint Petition (“PRP“) in the court of appeals. Id. at Ex. 10. On August 25, 2003, the court of appeals issued an unpublished opinion affirming petitioner‘s conviction. Id. at Ex. #18. Petitioner‘s motion for discretionary review in the state supreme court was denied by the Court Commissioner. Id. at Ex. 21. On February 4, 2004, the state supreme court denied petitioner‘s motion to modify the commissioner‘s ruling. Id. at Ex. 23. Petitioner then filed a motion for hearing of the motion to modify by the full court en banc, or alternatively, for reconsideration of denial of the motion to modify. Id. at Ex. 24. However, the court clerk placed the pleading in the closed file pursuant to RAP 17.2(a) and RAP 12.4(a). Id. at Ex. 25.3
Petitioner filed a third PRP in the state supreme court on October 11, 2004. Id. at Ex. 34. On March 14, 2005, the commissioner of the state supreme court issued a ruling dismissing the PRP on the basis that is was procedurally barred. Id. at Ex. 36. Petitioner‘s motion to modify the commissioner‘s ruling was denied by the court, without comment. Id. at Ex. 38. On June 8, 2005, the state supreme court issued a Certificate of Finality certifying that the commissioner‘s ruling on March 14, 2005 was final. Id. at Ex. 39.
Petitioner filed the present petition for writ of habeas corpus pursuant to
III. GROUNDS FOR REVIEW
Petitioner raises the following six grounds in his federal habeas petition:
- Whether admission of those portions of the out-of-court declaration of nontestifying codefendant Sawyer which minimized his own involvement and inculpated Mr. Harris violated the Confrontation Clause of the U.S. Constitutions [sic], especially in light of Crawford, Lilly, Bruton, Richardson, and Gray.
- Whether improper redaction of the codefendant‘s statement to allow admission of material inculpatory of Mr. Harris but to exclude material that was exculpatory violated the constitutional rights to due process and a fair trial, and to present a complete defense.
Whether the trial court erred in instructing the jury that it could attribute aggravating factors to Mr. Harris, even if they were committed by one of the codefendants, in violation of the plain language of the accomplice liability statute and the aggravated murder statute, thus violating the constitutional guaranties of due process, a fair trial, and to be free of cruel and/or unusual punishment. - Whether the codefendant‘s lawyer‘s closing argument comment on Mr. Harris’ right to remain silent violates the Constitutional guaranty of due process, a fair trial, and the right to remain silent.
- Whether the trial court erred in failing to give the jury an explanatory or cautionary instruction when it dismissed the aggravated murder first degree charge against codefendant Mr. Johnston, but did not dismiss the aggravated murder charge against Mr. Harris; whether such error violates the constitutional guaranty of due process and a fair trial; and whether trial counsel was ineffective in failing to request such an instruction.
- Whether the number and severity of the errors in this case, considered in combination, amounts to cumulative error in violation of the due process and fair trial guaranties of the U.S. Constitution.
IV. DISCUSSION
Respondent argues that petitioner‘s federal habeas petition is time-barred based on
Thus, under the statute, a judgment becomes “final” in one of two ways -- either by the conclusion of direct review by the highest court, including the United States Supreme Court, to review the judgment, or by expiration of the time to seek such review, again from the highest court from which such direct review can be sought. Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001); cf. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (“We hold that the period of direct review includes the period within which a petitioner can file a petition for writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.“).
On direct review, the state supreme court denied petitioner‘s petition for discretionary review on February 29, 2000. Dkt. # 9 at Ex. 9. Petitioner then had 90 days after entry of the order to file a petition for writ of certiorari in the United States Supreme Court.
Here, Petitioner‘s federal habeas petition was filed on May 11, 2005, almost four years outside the limitations period. Accordingly, his federal habeas petition is timely only if his state court PRPs tolled AEDPA‘s statute of limitations for all but 365 days or less between the date on which the limitations period began to run and the filing of his federal habeas petition.
A. Statutory Tolling
The AEDPA provides that the one-year statute of limitations is tolled for “[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.”
In this case, it is undisputed that Petitioner‘s first PRP tolled the statute of limitations because it was filed on February 20, 2001, slightly more than three months before his one-year limitations period for filing a federal habeas petition expired. See Dkt. # 9 at Ex. 10. The limitations period remained tolled until February 4, 2004, the date the state supreme court denied petitioner‘s motion to modify the court commissioner‘s ruling denying petitioner‘s motion for discretionary review. See Dkt. # 9 at Ex. 23. Likewise, petitioner does not challenge respondent‘s argument that under Pace, neither of petitioner‘s last two PRPs were “properly filed” because the state supreme court commissioner ruled that they were untimely. Thus, under Pace, neither of the last two PRPs operated to further toll the one-year limitations period under
B. Equitable Tolling
“[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (citation omitted). The Ninth Circuit has made it clear that “[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a prisoner‘s control makes it impossible to file a petition on time.” Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc) (citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1997)); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997). When external forces, rather than a lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); Kelly, 163 F.3d at 541; Beeler, 128 F.3d at 1288-89. The petitioner bears the burden of proving that he is entitled to equitable tolling. See Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); see also Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993).
Here, Petitioner asserts that he “sought state appellate and post-conviction relief early and continuously, without letting any periods of time elapse while sleeping on his rights.” Dkt. #12 at 4. He argues that he is entitled to equitable tolling because he justifiably relied on the pre-Pace controlling precedent in the Ninth Circuit, Dictado v. DuCharme, 244 F.3d 724 (9th Cir. 2001), where the court ruled that state post conviction petitions which the state courts determine to be “untimely” may nevertheless be considered “properly filed” under
This court agrees that Petitioner has not met his burden of proving entitlement to equitable tolling. Petitioner has simply not identified any extraordinary circumstances “beyond his control” that made it impossible for him to file a timely federal habeas petition. The fact that Dictado was controlling Ninth Circuit law pre-Pace, in no way
V. CONCLUSION
For the reasons set forth above, I recommend that Respondent‘s motion to dismiss (Dkt. #9) be GRANTED, thereby denying Petitioner‘s
DATED this 31st day of January, 2006.
MONICA J. BENTON
United States Magistrate Judge