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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CHARLES P. FRICK,

Plaintiff,

v.

DAREN SWENSON,

Defendant.

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CASE NO. C06-0104-JLR

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Respondent has filed an answer, raising the statute of limitations as a bar to the court’s

consideration of petitioner’s petition. Petitioner has not filed a response to respondent’s answer.

Because respondent is correct in his argument, petitioner’s petition should be dismissed as

untimely pursuant to 28 U.S.C. § 2244(d).

PROCEDURAL HISTORY

Petitioner pled guilty in 1983 to several counts of rape and was sentenced, under the

indeterminate sentencing scheme then in effect, to a potential maximum term of life imprisonment.

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(Doc. #11, Ex. 1). Petitioner’s sentence was originally suspended but, after violating terms of his

probation, petitioner was sentenced in 1984 to prison for a period of life with possibility of parole.

(Id., Ex. 2). Petitioner did not file a direct appeal.

In 1994, petitioner had his first hearing to determine whether he was suitable for parole.

(Id., Ex. 7). He was denied parole primarily because he had refused to participate in programs

designed to treat sexual deviancy. (Id.) In 1997, after another parole hearing, he was again denied

parole for similar reasons. (Doc. #11, Ex. 8). Petitioner’s minimum sentence was increased by

120 months. (Id.) Most recently, in 2005, petitioner was found again not to be parolable and his

sentence was increased by 60 months. (Id., Ex. 9).

In December, 2004, petitioner filed a post-conviction challenge to his sentence (“personal

restraint petition or PRP”) in Washington state court. (Id., Ex. 10). The Washington Court of

Appeals denied the petition. (Id., Ex. 13). Petitioner then sought review by the Washington

Supreme Court and the court denied review. (Id., Ex. 17).

On January 27, 2006, petitioner filed the instant petition under 28 U.S.C. § 2254. (Doc.

#4). On March 16, 2006, respondent filed his answer to the petition, along with the state court

record. (Doc. #9, #11). Petitioner has not filed a response, and the matter is now ready for

review.

DISCUSSION

In his § 2254 motion, petitioner raises two grounds for relief. First, petitioner contends

that he “is being unlawfully restrained in excess of the sentence imposed by the trial court . . .”

(Doc. #4 at 2). Second, petitioner contends that the State breached his plea agreement. (Id. at

3). However, the court need not address the merits of these claims because petitioner’s habeas

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petition is barred by the federal statute of limitations.

Petitions filed pursuant to 28 U.S.C. § 2254 are governed by the one-year statute of

limitations provided in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

See 28 U.S.C § 2244(d). When, as here, a conviction becomes final before the effective date of

AEDPA, which was April 24, 1996, the petitioner has until one year after that date, or until April

23, 1997, to file a federal habeas petition. See Miles v. Prunty , 187 F.3d 1104, 1105 (9th Cir.

1999).

Petitioner did not file the instant petition until 2006, well beyond the 1997 deadline

imposed by AEDPA. Although under AEDPA a properly filed petition for postconviction relief

tolls the statute of limitations, here, petitioner did not seek such relief until 2004, when he filed

his PRP in state court. (Doc. #11, Ex. 10). By that time, the deadline for filing a federal petition

had already passed.

Petitioner did not file a response to respondent’s answer and thus does not offer any

counterargument that his petition here is timely. However, in his answer, respondent attributes

to petitioner a counterargument that the petition is timely under 28 U.S.C. § 2244(d)(1)(D).

(Doc. #9 at 11). According to this counterargument, the petition is timely because the “factual

predicate” of the claim is that petitioner’s sentence exceeded what he considers to be the maximum

term, 20 years imprisonment, and this factual predicate did not become apparent until petitioner

had actually served the 20 years, which occurred in October 2002. (Id.) Therefore, under this

theory, the statute of limitations did not begin to run until October 2002.

Petitioner’s counterargument is unavailing for several reasons. First, the court notes that

petitioner did not raise this argument here. The document cited by respondent as the source for

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 Respondent argues that in addition to the statute of limitations bar, the petition is also

barred by procedural default because petitioner failed to exhaust his claims in state court. (Doc.

#9 at 11). However, the court need not address this alternative argument in light of the conclusion

reached above regarding the timeliness of the petition.

REPORT AND RECOMMENDATION

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this counterargument is petitioner’s reply to the parole board’s response to his PRP in state court.

 (Doc. #11, Ex. 12). In addition, petitioner’s reply does not appear to even make the argument

described by respondent. (Id. at 3). Second, even if petitioner did argue that his petition was

timely on this basis, the argument would fail because it is clear from the record that (a) the factual

predicate of the claim was apparent when the parole board extended petitioner’s sentence beyond

20 years in 1997 (Doc. #11, Ex. 8); and (b) even if the statute of limitations did not start to run

until October 2002, the one-year period would have expired in October 2003, more than two years

before petitioner filed the instant habeas petition. Thus, even under the scenario purportedly

depicted by petitioner, the petition would still be time-barred.1

CONCLUSION

For the foregoing reasons, petitioner’s petition under 28 U.S.C. § 2254 is barred by the

applicable statute of limitations and should be dismissed. A proposed Order is attached.

DATED this 28th day of April, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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