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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

HERMAN BARNES, JR.,

Petitioner,

v.

PEGGY SUE JUERGENS, et al.,

Respondent.

Case No. C06-5060 RBL/KLS

REPORT AND

RECOMMENDATION 

 

NOTED FOR: 

 August 25, 2006

This habeas corpus action has been referred to United States Magistrate Judge Karen L.

Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Petitioner filed this

action under 28 U.S.C. § 2241, arguing that his conviction is unconstitutional because on appeal, his

counsel refused to raise the insanity defense. The undersigned recommends the petition be dismissed

with prejudice as it is time barred. 

FACTS

Petitioner challenges his 1993 federal court conviction, following a bench trial, for armed

bank robbery, use of a firearm during a crime of violence, and being a felon in possession of a

firearm. (Case No. CR-92-380-1-JET; Dkt. # 61). On June 25, 1993, petitioner was sentenced to

270 months imprisonment followed by five years supervised release. (Id. at Dkt. # 84, 86). 

Petitioner appealed to the Ninth Circuit, arguing that the District Court erred in not departing

downward, because he was coerced into committing the crimes. (Id. at Dkt. # 87 (Notice of

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Appeal)); See also, United States of America v. Herman Barnes, Jr., 46 F.3d 1146 (9th Cir. 1995,

unpub. op.)). The Ninth Circuit affirmed the decision of the District Court on January 13, 1995,

holding that:

“failure to depart, when the record is silent on the issue of authority,

and sentence is imposed within the applicable guideline range, is not

unlawful and is not appealable on that basis.” U.S. v. Garcia-Garcia,

927 F.2d 489, 491 (9th Cir. 1991).

Id.

After reviewing the petition prior to service, this court noted that petitioner was challenging

the constitutionality of his sentence (a § 2255 action), and ordered petitioner to show cause why his

petition should not be dismissed as time barred. (Dkt. # 5). In response, petitioner stated that while

he waived his right to a jury trial, he did not waive his insanity defense. (Dkt. # 6). Petitioner also

claimed that his appellate counsel advised him that she was not appointed to represent him on a 2255

petition, but that he could raise the issue of his competency in a 2255 petition. (Id.). Attached as

Exhibit B to petitioner’s response, is a letter from petitioner’s appellate counsel, dated September 12,

1994, in which his counsel states: 

Your request that I obtain the medical records is not within the scope

of my charge to represent you on your appeal, so I cannot obtain the

medical records. You are no doubt aware that you could raise the

issue of your competency in a 2255 petition. I am not appointed to

represent you on the petition, but I have enclosed the petition for your

information.

(Id. at Exh. B).

Petitioner signed his petition for writ of habeas corpus on January 29, 2006, over eleven

years later.

EVIDENTIARY HEARING

A district court must grant a federal habeas petitioner' s motion for an evidentiary hearing 

“unless the motion and the files and records of the case conclusively show that the prisoner is entitled

to no relief.” 28 U. S.C. § 2255. United States v. Rodriquez, 347 F.3d 818, 824 (9th Cir. 2003). A

defendant is not entitled to a hearing unless the defendant (1) alleges specific facts which, if true,

would entitle him to relief; and (2) the petition, files and record of the case cannot conclusively show

that he is entitled to no relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). 

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Petitioner has not sought a hearing in this matter. Additionally, petitioner is not entitled to a hearing

as the motion, files and records of the case conclusively show that his petition is time barred.

DISCUSSION

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

amendments to 28 U.S.C. § 2255, which were signed into law April 24, 1996 as part of the

Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2255 provides, in pertinent

part:

A 1-year period of limitation shall apply to a motion under this section. 

The limitation period shall run from the latest of –

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created

by governmental action in violation of the Constitution or laws

of the United States is removed, if the movant was prevented

from making a motion by such governmental action;

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

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

the Supreme Court and made retroactively applicable to cases

on collateral review; or

(4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of

due diligence.

28 U.S.C. § 2255.

In 1993, when the district court entered judgment against petitioner and he was sentenced,

there was no limit on the time within which he could file a motion under § 2255. See 28 U.S.C. §

2255 (1994) (“A motion for such ruling can be brought at any time.”). Under AEDPA, however,

federal prisoners are required to bring a collateral attack under § 2255 within one year of the date

their conviction becomes final. See 28 U.S.C. § 2255. Like all defendants whose convictions

became final before AEDPA’s enactment, petitioner was entitled to a one-year grace period after

AEDPA’s effective date to file his § 2255 motion. See Patterson v. Stewart, 251 F.3d 1243, 1246

(9th Cir. 2001). That grace period expired on April 26, 1997. Therefore, petitioner’s motion filed on

January 29, 2006, was filed well beyond the expiration of the statute of limitations.

There is also nothing in the record to suggest that the statute of limitations is subject to

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equitable tolling. Although the “AEDPA’s statute of limitations is subject to equitable tolling,” it is

“unavailable in most cases.” Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (citation omitted). 

Equitable tolling “is appropriate only ‘if extraordinary circumstances beyond a prisoner’s control

make it impossible to file a petition on time.’” Id. (citations omitted); Frye v. Hickman, 273 F.3d

1144, 1146 (9th Cir. 2001); Allen v. Lewis, 255 F.3d 798, 799-800 (9th Cir. 2001). “External

forces,” not petitioner’s “lack of diligence” must account for his or her failure to file a timely

petition. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Ignorance of the law, “even for an

incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d

1217, 1220 (9th Cir. 2000) (quoting Fisher, 174 F.3d at 714). 

Here, the record indicates that petitioner was aware that he could raise the issue of his

competency in a 2255 petition at the latest when he received the September 12, 1994 letter from his

appellate counsel. Although he was given an opportunity to provide the court with an explanation

for the lateness of his filing, he has failed to do so. There is no indication that extraordinary

circumstances beyond petitioner’s control made it impossible for him to file his petition on time. 

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 and Recommendation 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 August 25,

2006, as noted in the caption. 

Dated this 2nd day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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