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ORDER - 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EPHRAIM R. SMITH,

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

No. C06-0175MJP

ORDER DENYING PETITIONER’S

HABEAS PETITION WITH

PREJUDICE

This matter comes before the Court on Judge Theiler’s Report and Recommendation. Plaintiff

has filed objections. Having reviewed Mr. Smiths’ petition for writ of habeas corpus, respondent’s

answer thereto, the Report and Recommendation of Mary Alice Theiler, United States Magistrate

Judge, Petitioner Smith’s objections to the Report and Recommendation, and the remaining record,

the Court hereby ADOPTS Judge Theiler’s Report and Recommendation and DISMISSES the

habeas petition with prejudice.

Background

Petitioner Ephraim R. Smith, proceeding pro se, filed a writ of habeas corpus pursuant to 28

U.S.C. § 2254. Respondent submitted a motion to dismiss in lieu of an answer, arguing that the

habeas petition is time barred under 28 U.S.C. § 2244(d). Judge Theiler recommends in the Report

and Recommendation that the habeas petition should be dismissed because it is time barred by the

one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A). Mr. Smith objects to Judge

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ORDER - 2 

Theiler’s Report and Recommendation and asserts that the habeas petition was timely filed. 

Specifically, he argues that his first four grounds for relief in his habeas petition should be equitably

tolled while the remaining two grounds were timely filed.

Analysis

Mr. Smith objects to the Report and Recommendation’s conclusion that he did not timely file

his first four grounds for relief. Mr. Smith concedes that he filed his first four grounds outside the

one-year limitations period. But Mr. Smith asserts that his first four grounds for relief should be

equitably tolled because his attorney failed to timely file his habeas petition. Equitable tolling is the

only recognized exception to the statute of limitations. Calderon v. U.S. Dist. Ct., 128 F.3d 1283,

1288 (9th Cir. 1997). While the Ninth Circuit recognizes that equitable tolling may be appropriate in

the case of egregious attorney misconduct, it also has held that equitable tolling is not available to

petitioners who file untimely claims due to their own lack of diligence. Spitsyn v. Moore, 345 F.3d

769, 800 (9th Cir. 2003). In this case, Mr. Smith’s untimely filing was a direct result of his lack of

diligence. Mr. Smith argues that the facts in his case are similar to those in Spitsyn, but his case is

distinguishable from Spitsyn. The petitioner in Spitsyn retained his attorney long before the filing

deadline. In contrast, Mr. Smith did not retain his attorney until March 2002, two months after the

filing deadline had passed. Although Mr. Smith had contacted his attorney before the deadline, he did

not give his attorney the retainer fee until after the deadline. Unlike the attorney in Spitsyn who was

retained before the deadline, and had a clear duty to file the petition at the constant behest of his

client, Mr. Smith’s attorney did not have such a duty because he was not yet retained. Given that Mr.

Smith has not asserted any other external circumstances that delayed him from timely filing his

petition, Mr. Smith is unable to establish that he is entitled to the equitable tolling exception.

Mr. Smith also objects to the Report and Recommendation’s conclusion that he did not timely

file his fifth and six grounds for relief pursuant to 28 U.S.C. § 2244(d)(1)(C) and (D). Section

2244(d)(1)(C) provides that the statute will run from the date on which the constitutional right

asserted was initially recognized by the Supreme Court if the right has been made retroactively

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ORDER - 3 

applicable to cases on collateral review. Section 2244(d)(1)(D) provides that the statute will run

from the date on which the “factual predicate of the claim or claims could have been discovered

through the exercise of due diligence.” 

Regarding his fifth ground for relief, Mr. Smith argues that two Washington Supreme court

cases held unconstitutional the accomplice liability jury instruction given at his trial. Mr. Smith

asserts that the statute should run from the date on which the Washington Supreme Court cases were

decided because 28 U.S.C. § 2244 does not specify that the “Supreme Court” is the “Supreme Court

of the United States.” However, a plain reading of 28 U.S.C. § 2244 suggests that the “Supreme

Court” is merely shorthand for the “Supreme Court of the United States.” For example, in section

2244(c), the “Supreme Court of the United States” is later referred to as the “Supreme Court.” 

Moreover, in other subsections of this section, state courts are specifically referred to as “state

courts.” For example, 28 U.S.C. § 2244(c) mentions “the judgment of a State court.” Thus, a plain

reading of the statute suggests that “Supreme Court” only refers to the “Supreme Court of the United

States” and not any state supreme court. As such, the two Washington Supreme court cases are not

covered by 28 U.S.C. § 2244.

Mr. Smith also bases his sixth ground for relief on 28 U.S.C. § 2244(d)(1)(C) and argues that

the trial court imposed a firearm enhancement whereas the jury verdict authorized a deadly weapon

enhancement in contravention of the United State Supreme Court’s holding in Blakely v. Washington,

542 U.S. 296 (2004). However, the Ninth Circuit has held that Blakely does not apply retroactively

to convictions that became final before that decision was announced. Schardt v. Payne, 414 F.3d

1025, 1038 (9th Cir. 2005). Mr. Smith’s conviction became final on September 28, 1999, when the

Washington Supreme Court denied review. Because Blakely was decided on June 24, 2004, it does

not apply to Mr. Smith’s conviction. Mr. Smith is therefore unable to establish that § 2244(d)(1)(C)

applies.

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ORDER - 4 

Conclusion

Because Petitioner’s federal habeas petition is time barred under §2244(d)(1) and Petitioner

fails to establish the applicability of equitable tolling to his first four grounds of relief or the

applicability of §2244(d)(1)(C) and (D) to his fifth and sixth grounds, the Court ADOPTS the Report

and Recommendation and DISMISSES Petitioner’s habeas petition with prejudice.

The Clerk of the Court shall direct a copy of this order be sent to all counsel of record.

Dated this 19th day of October, 2006.

AMarsha J. Pechman

 United States District Judge

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