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

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

BERNARD OTIS HUFF 

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

Case No. C06-5105RJB

REPORT AND

RECOMMENDATION 

 

 NOTED FOR: 

 SEPTEMBER 22nd, 2006

This habeas corpus 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.

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner challenges his Pierce County convictions for three counts of unlawful delivery of a

controlled substance, one count of unlawful possession of a controlled substance with intent to

deliver, and one count of bail jumping. Petitioner was sentenced to 144 months imprisonment on

September 11th, 2002. The court has reviewed the file and concurs with the Washington State

Assistant Attorney General that this petition is procedurally defaulted and time barred. Accordingly,

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 1 of 8
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

Page - 2

the petition should be DISMISSED.

FACTS AND PROCEDURAL HISTORY

The only issues raised by petitioner deal with his sentencing hearing. The Washington Court

of Appeals summarized the facts of the hearing as follows.

At his sentencing hearing Huff initially challenged an Illinois conviction for

manufacturing a controlled substance (marijuana) and demanded that the State meet

its burden to prove the conviction by a preponderance of the evidence. The trial court

agreed and prepared to reschedule the sentencing hearing for later that week in order

to allow the State time to obtain a certified copy of the Illinois judgment and

sentence. But Huff personally objected to waiting a few days for the Illinois judgment

and sentence. Instead, Huff advised the court that he wished to stipulate to the Illinois

conviction so that he could be sentenced that day.

Huff, his counsel, and the prosecutor then signed a typed stipulation, which

stated that (1) the Illinois crime occurred on February 17, 1989; (2) it was equivalent

to a class C felony in Washington and counted as three points toward his offender

score; (3) none of his prior convictions listed in the stipulation had “`washed out’

under [former] RCW 9.94A.360(2)”; (4) the criminal history and “scoring” listed in

the stipulation were “correct”; and (5) his offender score was, therefore, also

“correct.” The stipulation did not provide the dates of Huff’s conviction, sentence,

incarceration, or release from confinement for the Illinois conviction or the length of

his Illinois sentence. The next conviction noted after the 1989 crime was Huff’s

sentence in December 1996 for unlawful possession of a controlled substance, also a

class C felony.

Huff’s offender score was 15 for the drug-related convictions and 9 for the

bail-jumping conviction. The standard sentencing ranges were 108-144 months for the

drug-related convictions and 51-60 months for the bail jumping.

During the sentencing hearing, the State argued that the bail-jumping sentence

should run consecutively to the drug offense sentences and that Huff should receive a

high-end standard-range sentence. Huff argued that the sentences should run

concurrently because (1) “the officers appeared to deliberately stack the offenses to

boost the offender score”; and (2) if the police had arrested Huff after the first drug

buy, his offender score would have been lower. The State countered that no

deliberate stacking had occurred and that the officers were merely trying to gather

information for a search warrant.

The court sentence Huff to 144 months on each of the drug counts and to 60

months on the bail-jumping count, all sentences to run concurrently, for a total of 144

months confinement.

(Dkt. # 13, Exhibit 7).

Petitioner, through counsel appealed and argued:

1. The sentencing court erred in calculating the offender score and 

2. Counsel provided ineffective assistance of counsel at the sentencing hearing.

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 2 of 8
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

Page - 3

(Dkt. # 13, Exhibit 3). Petitioner filed a pro se brief and argued:

1. Ineffective assistance of counsel

2. Insufficient evidence.

3. The trial Judge was bias.

4. Prosecutorial misconduct.

5. He should have only been convicted of simple possession of controlled substances

rather than delivery. 

(Dkt. # 13, Exhibit 5).

On December 9th, 2003 the Washington State Court of Appeals affirmed the conviction and

sentence. (Dkt. # 13, Exhibit 7). On January 7th, 2004, two days before the deadline for filing a

petition for review, Mr. Huff sought a 30 day extension of time. (Dkt. # 13, Exhibit 8). His motion

was denied by the deputy clerk of the Washington Supreme Court. (Dkt. # 13, Exhibit 9). Thus, no

motion for discretionary review was considered and no issue raised in the direct appeal was

exhausted. 

On February 10th, 2004 Mr. Huff filed a renewed motion for an extension of time, a motion to

modify the clerks ruling, and an untimely motion for discretionary review. (Dkt. # 13, Exhibit 10 to

12). On April 6th, 2004 the Washington State Supreme Court denied the motion to modify the

deputy clerk’s ruling. (Dkt. # 13, Exhibit 13). Again, no issue was exhausted.

On November 8th, 2004 petitioner filed a motion for relief from judgment in the Pierce

County Superior Court. (Dkt. # 13, Exhibit 15). Mr. Huff argued his Illinois conviction had

“washed-out” and should not have been included in his offender score. The motion was transferred

to the Washington State Court of Appeals to be handled as a Personal Restraint Petition.

On March 28th, 2005 the Washington State Court of Appeals summarily denied the petition

as the issue had been raised and addressed on direct appeal. (Dkt. # 13, Exhibit 17). The court

refused to revisit an issue it has already ruled on.

Petitioner filed a motion for reconsideration of the order denying his personal restraint

petition. The Washington State Court of Appeals considered the motion as a motion for

discretionary review and forwarded the motion to the State Supreme Court. (Dkt. # 13, Exhibit 18). 

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 3 of 8
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

Page - 4

On July 7th, 2005 the court commissioner concurred with the Washington State Court of Appeal and

held that the issue was addressed on direct appeal. The commissioner held in the alternative:

Even if Mr. Huff can now factually show that his 1989 conviction had washed

out, because he affirmatively agreed at sentencing that the Illinois conviction had not

washed out and was properly part of his offender score, and because he further

waived any evidentiary hearing on the prior conviction, the trial court properly

counted the conviction. State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004).

The judgment and sentence did not show on its face that the Illinois conviction had

washed out, so Mr. Huff may not avoid the determination that he waived any error in

the counting of the conviction. See id. at 231-32. Mr. Huff contends that he was

mentally incompetent to stipulate to the counting of the Illinois conviction, but he

does not show that to be the case.

Moreover, Mr. Huff was not prejudiced by any error. Had the Illinois

conviction not been counted, his offender scores for the drug crimes would still have

exceeded nine, and thus his standard sentence range would have been the same,

resulting in the same total prison term. See State v. Argo, 81 Wn. App. 552, 569, 915

P.2d 1103 (1996).

(Dkt. # 13, Exhibit 19, page 3). Thus no issue in this petition has been exhausted as the issues were

procedurally defaulted by petitioner’s failure to file a timely motion for discretionary review on his

direct appeal. His subsequent filings were not considered on the merits.

Mr. Huff then filed the Federal Habeas Corpus Petition now before the court. He raises the

following issues:

Counsel was ineffective for failing to brief and argue for an exceptional

downward sentence and for failing to argue the Illinois conviction “washed-out” and

therefore should not be included in his offender score.

(Dkt. # 1).

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

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. 

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 4 of 8
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

Page - 5

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

A. Exhaustion.

In order to satisfy the exhaustion requirement, petitioner’s claims must have been fairly

presented to the state's highest court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). A federal habeas petitioner must provide the state

courts with a fair opportunity to correct alleged violations of prisoners' federal rights. Duncan v.

Henry, 513 U.S.364, 115 S.Ct. 887, 888 (1995). It is not enough that all the facts necessary to

support the federal claim were before the state courts or that a somewhat similar state law claim was

made. Id, citing Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 5 of 8
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

Page - 6

(1982). 

Petitioner’s direct appeal exhausted no issues as he did not file a timely motion for

discretionary review. (Dkt. # 13, Exhibits 8 through 13). His subsequent attempt to raise his

ineffective assistance of counsel claim was procedurally barred in state court as the issues were

considered by the State Court of Appeals on direct appeal. (Dkt. # 13, Exhibits 17 and 19). No

issue has been exhausted.

B. Procedural Bar.

Normally, a federal court faced with an unexhausted petition dismisses the petition without

prejudice, so that the petitioner has an opportunity to exhaust the claims in state court. Now,

however, petitioner is barred from filing another petition in state court as any attempt to file another

petition will be deemed successive and time barred. See, RCW 10.73.090 and 10.73.140.

Federal Courts generally honor state procedural bars unless it would result in a “fundamental

miscarriage of justice.” or petitioner demonstrates cause and prejudice. Coleman v. Thompson, 501

U.S. 722, 750 (1991). Petitioner here cannot show cause and prejudice in state court. 

To show cause in federal court petitioner must show that some objective factor external to

the defense prevented petitioner from complying with state procedural rules relating to the

presentation of his claims. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). Here, petitioner simply

failed to file a timely petition for discretionary review from his direct appeal. Thus, petitioner cannot

show cause that excuses his procedural default in state court. Accordingly, the petition is

procedurally defaulted and should not be considered.

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

In addition to being procedurally defaulted this petition is time barred. 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

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 6 of 8
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

Respondent argues the statute began to run 30 days after the Washington State Court of

Appeals issued its ruling. While Respondent may be correct the court has used the more lenient 90

day time frame for filing a petition of Cert. with the Untied States Supreme Court.

REPORT AND RECOMMENDATION

Page - 7

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.

At the latest, petitioner’s conviction became final for purposes of 28 U.S.C. § 2244(d) 90

days after his conviction was affirmed on December 9th, 2003.1 (Dkt. # 13, Exhibit 7). This means

the statue began to run March 8th, 2004. Nothing was filed that tolled the statute for 245 days. The

filing of a motion for an extension of time that was denied and the filing of untimely briefs did not

toll running of the one year. On November 8th, 2004 the statute tolled when petitioner filed his

motion for relief from judgment. (Dkt. # 13, Exhibit 15).

The one year time frame began to run again on July 8th, 2005 when the Washington State

Supreme Court terminated review of his Personal Restraint Petition. (Dkt. # 13, Exhibit 19). The

remaining 120 days on the one year ran expired on November 5th, 2005. This petition was not filed

until February 16th, 2006 and is over three months time barred

CONCLUSION

This petition is procedurally barred and in the alternative 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

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 7 of 8
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

Page - 8

72(b), the clerk is directed to set the matter for consideration on September 22nd, 2006, as noted in

the caption.

Dated this 30th day of August, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:06-cv-05105-RJB Document 23 Filed 08/31/06 Page 8 of 8