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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WILLIAM BURKETT 

Petitioner,

v.

MAGGIE MILLER-STOUT,

Respondent.

Case No. C05-5612FDB

REPORT AND

RECOMMENDATION 

 

 NOTED FOR: 

 November 18th, 2005

This action has been referred to the undersigned Magistrate Judge pursuant to Title 28

U.S.C. §§ 636(b)(1)(A) and 636 (b)(1)(B) and Local Magistrates' Rules MJR 3 and MJR 4. 

Petitioner filed this action under 28 U.S.C. § 2254.

The case was originally filed as a Civil Rights action but plaintiff seeks relief from a criminal

conviction and is clearly seeking relief only available in Habeas Corpus. (Dkt. # 5 and 6). The Court

declined to serve the case as a civil rights complaint, construed the action as a habeas petition, and

directed petitioner to show cause as it did not appear the petitioner had exhausted any state

remedies. (Dkt. # 8).

In reply petitioner has withdrawn his pending motions for relief from judgment and indicates

that under the amendments made by the Antiterrorism and Effective Death Penalty Act, AEDPA he

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is time barred from filing a habeas petition under 28 U.S.C. § 2254. Accordingly, the court now

recommends this action be DISMISSED WITH PREJUDICE as time barred.

STANDARD

Federal courts may intervene in the state judicial process only to correct wrongs of a

constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). Section 2254 is explicit in that a

federal court may entertain an application for writ of habeas corpus “only on the ground that [the

petitioner] is in custody in violation of the constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a)(1995). The Supreme Court has stated many times that federal habeas corpus relief

does not lie for errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990); Pulley v. Harris, 465 U.S.

37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991). 

Further, a habeas corpus petition shall not be granted with respect to any claim adjudicated

on the merits in the state courts unless the adjudication either (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, as determined

by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). A

determination of a factual issue by a state court shall be presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.

§2254(e)(1).

DISCUSSION

One Year Limitation Period of 28 U.S.C. § 2244(d)

Federal habeas corpus petitions are subject to a statue of limitations under the 1996

amendments to 28 U.S.C. § 2244(d), which were signed into law April 24, 1996 as part of the

Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2244(d) provides as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court. The limitation period shall run

from the latest of-

(A) the date on which the judgment became final by 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

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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 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.

Petitioner admits his petition is time barred. (Dkt. # 9).

CONCLUSION

This petition is time barred. Accordingly, the petition should be DISMISSED WITH

PREJUDICE. A proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.

R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on November 18th, 2005, as noted in

the caption. 

Dated this 31st day of October, 2005.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge 

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