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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JAMES REGINALD BARNES,

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

Case No. C06-5214FDB

REPORT AND

RECOMMENDATION 

Noted for November 10, 2006

Petitioner is a state prisoner currently incarcerated at the Stafford Creek Corrections Center

pursuant to a February 23, 2000, convictions for First Degree and Attempted First Degree Theft arising

out of Pierce County. Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 challenging his state 

convictions. The matter is before the court on Respondent’s motion to dismiss (Doc. 14). After a careful

review of the record, the undersigned submits the following report and recommends that the Court deny

the petition for writ of habeas corpus as untimely.

DISCUSSION

A one-year period of limitation applies to federal petitions for writ of habeas corpus. The relevant 

statute states:

(d)(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;

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(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 constitutional right asserted was initially 

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

the Supreme Court and made retroactively applicable to cases on collateral

review; or

(D) 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.

28 U.S.C. § 2244(d).

The one year period of limitation is subject to equitable tolling, thus, the period may be equitably

tolled by the court “if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a

petition on time.” Id. at 1288, citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1997). 

The Ninth Circuit commented, “We have no doubt that district judges will take seriously Congress’s desire

to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is

surmounted.” Id. at 1289. The Supreme Court recently held, “that time limits, no matter their form, are

‘filing’ conditions. Because the state court rejected petitioner’s PCRA petition as untimely, it was not

properly filed, and he is not entitled to statutory tolling under § 2244(d)(2). Pace v. DiGuglielmo, 544

U.S. 408, 125 S. St. 1807, 1814 (2005).

Here, petitioner was convicted and sentenced by the state trial court on or about February 29,

2000. Mr. Barnes immediately appealed this conviction and the direct appeal process ended on April 1,

2003, when the State Supreme Court issued its decision denying review. The State Court of Appeals

entered its mandate on April 30, 2003. Petitioner also filed several collateral challenge to his sentence and

convictions in the state courts. The first round of the state court collateral challenges ended on or about

February 20, 2004, when the State Supreme Court denied review of Mr. Barnes’ Personal Restraint

Petition. Mr. Barnes’ subsequent attempt to challenge his convictions and sentences was time barred by

the State Court of Appeals, which was affirmed by the Washington State Supreme Court.

Giving Mr. Barnes the benefit of any doubt, the federal one-year period of limitation started to run

on April 26, 2004, when the Washington Court of Appeals entered a certificate of finality, following the

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State Supreme Court’s refusal to review his Personal Restraint Petition. Unless tolled for a legitimate

reason, the one year period expired one year later, or on or about May 1, 2005. The court finds no

reason to toll the period of limitations beyond this date. Mr. Barnes filed subsequent state court

proceedings, but they were properly time barred by the state courts and thus were not properly filed and

cannot constitute a basis for tolling the federal one-year period of limitation. Mr. Barnes did not file his

writ of habeas corpus with this court until April 18, 2006, well after the one-year time limit had expired.

CONCLUSION

Petitioner did not timely filed his petition for writ of habeas corpus. Respondent’s motion to

dismiss the petition should be GRANTED. 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 10, 2006, as

noted in the caption. 

DATED this 20th day of October, 2006.

/s/ J. Kelley Arnold 

J. Kelley Arnold

United States Magistrate Judge

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