1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NARCRISSUS SWANIGAN,

Petitioner,

v.

JEF UTHECHT,

Respondent.

Case No. C06-5120FDB

REPORT AND

RECOMMENDATION

NOTED FOR:

September 22nd, 2006

This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and local Rules MJR 3 and 4. 

INTRODUCTION AND SUMMARY CONCLUSION 

Petitioner challenges a 1995 Pierce County conviction by jury trial for one count of first

degree robbery, one count first degree assault. He was originally sentenced to 330 months. Having

reviewed the pleadings and the record in this case the court concludes this petition is time barred. 

The petition should be DISMISSED.

Case 3:06-cv-05120-FDB Document 16 Filed 08/28/06 Page 1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION- 2

FACTS

 The Washington State Court of Appeals summarized the facts as follows:

 Daniel McPhie was siting in his car, in a Tacoma bowling alley lot one

evening. Narcrissus Swanigan approached McPhie, knocked on his window, and

pulled out a gun. Swanigan and two other men then unlocked the car doors and got

in. Swanigan sat in the front passenger seat, and the other two got in back The three

men ordered McPhie to drive.

The man sitting in the passenger side back seat then pointed a gun at McPhie’s

head and told the man seated behind McPhie to grab the wheel because “I’m going to

waste [McPhie}.” The man pulled the trigger, but the gun did not fire. He pulled the

trigger a second time, but the gun still did not fire. The man then hit McPhie several

times on the head, causing a bleeding wound that required stitches. 

McPhie pulled into a nightclub parking lot. Swanigan held his gun up to

McPhie, and one of the men in the back seat demanded money. When one of the men

in the back seat warned that a security guard was approaching, McPhie grabbed

Swanigan’s gun. McPhie and Swanigan struggled, the gun went off, and the bullet hit

McPhie in the leg, causing some nerve damage. Meanwhile, the man seated behind

McPhie got out, opened McPhie’s door and demanded his money. McPhie does not

remember if he gave his money to the man, or if the man reached into his pocket and

took the money. McPhie testified he had either $460 or $ 480 dollars on him, and

knew the exact denominations.

Police officers found Swanigan and the other two suspects hiding in the

woods a short distance from the parking lot. In Swanigan’s pocket, the officers

found ten .357 rounds and McPhie’s car keys. The officers also found $480 in

Swanigan’s shirt pocket, in the same denominations that McPhie had lost.

(Dkt. # 14, Exhibit 3).

PROCEDURAL HISTORY

Petitioner filed a direct appeal and the Washington State Court of Appeal’s affirmed the

conviction on December 30th, 1996. (Dkt. # 14, Exhibit 3).

Petitioner filed a motion for discretionary review which was denied May, 6th, 1997. (Dkt. #

14, Exhibit 4). On October 21st, 1996, while his direct appeal was pending, petitioner filed his first

personal restraint petition. (Dkt. # 14, Exhibit 5). One of the issues raised in this petition was that a

12 month dead weapon firearm enhancement for the first degree assault charge was improper

because the statute providing for that enhancement was not in effect at the time petitioner was

charged. The Washington State court of Appeals agreed with petitioner and granted him relief on

this issue. (Dkt. # 14, Exhibit 6). The court entered its order January 17th, 1997. (Dkt. # 14, Exhibit

Case 3:06-cv-05120-FDB Document 16 Filed 08/28/06 Page 2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 Dkt. # 14, Exhibit 7 is a printout of the state procedural history and not copies of

briefs or actual orders. Respondent does not explain the reason he relies on this printout rather than

produce the actual documents. 

REPORT AND RECOMMENDATION- 3

7)1

.

One year and four months later, on May 5th, 1998, petitioner filed his second personal

restraint petition. (Dkt. # 14, Exhibit 7). The petition was dismissed as successive and as an abuse

of the writ pursuant to RCW 10.73.140. (Dkt. # 14, Exhibit 8). Petitioner filed for discretionary

review and the motion was denied March 23rd, 1999. (Dkt. # 14, Exhibit 7).

Over five years later petitioner filed his third personal restraint petition. (Dkt. # 14, Exhibit

9). The petition was dismissed as time barred pursuant to RCW 10.73,090. (Dkt # 14, Exhibit 10). 

Petitioner did not file for discretionary review. 

On May 13th, 2005 petitioner filed another personal restraint petition. (Dkt. # 14, Exhibit

11). Respondent refers to this filing as the fourth petition but the state court refers to the filing as

Mr Swanigan’s fifth petition. In either event, the petition was dismissed as time barred and

successive. Petitioner filed for discretionary review, and on January 25th, 2006 review was denied. 

(Dkt. # 14, Exhibit 13). 

Mr. Swanigan filed his federal habeas corpus petition on March 6th, 2006 and he raises the

following issues:

1. Miscalculation of his offender score.

2. One Year statute of limitations.

3. Prosecutorial misconduct.

4. Ineffective assistance of counsel.

(Dkt. # 4).

EVIDENTIARY HEARING

If a habeas applicant has failed to develop the factual basis for a claim in state court, an

evidentiary hearing may not be held unless (A) the claim relies on (1) a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court that was previously

Case 3:06-cv-05120-FDB Document 16 Filed 08/28/06 Page 3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION- 4

unavailable, or there is (2) a factual predicate that could not have been previously discovered through

the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error, no reasonable fact finder would

have found the applicant guilty of the underlying offense. 28 U.S.C. §2254(e)(2) (1996). 

Petitioner's claims rely on established rules of constitutional law. Further, petitioner has not set forth

any factual basis for his claims that could not have been previously discovered by due diligence. 

Finally, the facts underlying petitioner's claims are insufficient to establish that no rational fact finder

would have found him guilty of the crime. Therefore, petitioner is not entitled to an evidentiary

hearing.

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)

Case 3:06-cv-05120-FDB Document 16 Filed 08/28/06 Page 4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION- 5

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

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.

For Mr. Swanigan the one year time frame would have commenced 90 days after his

conviction was affirmed on May 6th, 1997. This is because his first personal restraint petition was

filed and decided before his direct appeal was over. (Dkt. # 14, Exhibits 4, 5, and 6). Thus the one

year began to run on August 4th, 1997. The one year time frame ran for 274 day and tolled on May

5th, 1998 when Mr. Swanigan filed his second personal restraint petition. The running of the one

year time frame was tolled until March 23rd, 1999 when the Washington State Supreme Court denied

review. (Dkt. # 14, Exhibit 7) . The last day of the one year time frame expired June 21st, 1999. 

Petitioner did not file another state collateral petition until May 4th, 2004. (Dkt. # 14, Exhibit

9). By 2004 he was several years time barred and he cannot file a federal habeas corpus petition. 

The court recommends DISMISSAL of this petition as time barred.

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

Case 3:06-cv-05120-FDB Document 16 Filed 08/28/06 Page 5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION- 6

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 September 22nd, 2006, as noted in

the caption.

Dated this 28th day of August, 2006.

/S/ J. Kelly Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:06-cv-05120-FDB Document 16 Filed 08/28/06 Page 6 of 6