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28 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PAUL ANTHONY TUMA,

Petitioner,

v.

ALICE PAYNE,

Respondent.

Case No. C05-5827RJB

ORDER ADOPTING REPORT

AND RECOMMENDATION

This matter comes before the Court upon the Report and Recommendation of J. Kelley

Arnold, United States Magistrate Judge. Dkt. 24-1. The Court has reviewed the Report and

Recommendation, Petitioner’s Objections to the Report and Recommendation, the entire file, and is

fully advised.

Petitioner filed the instant case on December 23, 2005. Dkt. 1. He challenges his 2002

Thurston County conviction by guilty plea for manufacturing a controlled substance,

methamphetamine. Dkt. 5. Petitioner alleges in his Complaint that 1) the statute he was convicted

on was unconstitutional on its face, 2) he was not afforded constitutionally sufficient counsel and 3)

his Fourteenth Amendment rights were violated. Id. 

The procedural facts are recounted in the Report and Recommendation and shall not be

repeated here. The Report and Recommendation recommends dismissal of the instant petition as

time barred. Dkt. 24-1. 

Case 3:05-cv-05827-RJB Document 28 Filed 06/15/06 Page 1 of 2
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28 ORDER - 2

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a

petitioner has only one year within which to bring a habeas petition. 28 U.S.C. § 2244(d)(1). The

one year time limit begins to run from the latest of: 

(A) the date on which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the

Supreme Court, if the right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

(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 not be

counted toward any period of limitation under this subsection.

Id. Upon review of the record, the one year statue of limitations expired in May of 2004. Petitioner

objects, and makes reference to “newly discovered evidence,” a crime laboratory report dated May

21, 2002. Dkt. 26. Petitioner fails to show that this report could not have been discovered through

the exercise of due diligence. Petitioner does not show that any of the remaining above exceptions

apply. Petitioner merely reargues the merits of his petition. Dkt. 26. This petition should be

dismissed with prejudice. 

Therefore, it is hereby ORDERED that,

(1) The Court ADOPTS the Report and Recommendation;

(2) The petition is DISMISSED WITH PREJUDICE for the reasons set forth in the

Report and Recommendation.

(3) The clerk is directed to send copies of this Order to Petitioner, counsel for

Respondent, and to the Hon. J. Kelley Arnold.

DATED this 15th day of June, 2006.

ARobert J. Bryan

United States District Judge 

Case 3:05-cv-05827-RJB Document 28 Filed 06/15/06 Page 2 of 2