Fuentes v. Key

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Jun 09, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON NICHOLAS A. FUENTES, III, NO: 2:19-CV-410-RMP 8 Petitioner, ORDER GRANTING MOTION TO 9 v. SUBSTITUTE RESPONDENT AND DISMISSING ACTION WITH JAMES KEY, PREJUDICE

11 Respondent.

13 By Order filed January 28, 2020, the Court directed Petitioner Nicholas A.

14 Fuentes, III, a prisoner currently housed at the Airway Heights Corrections Center, to show cause why this action should not be dismissed as time barred under 28 16 U.S.C. § 2244(d). ECF No. 7. Petitioner had presented his pro se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on November 27, 2019, and is proceeding pro se and in forma pauperis; Respondent has not been served.

20 The Court granted Plaintiff an extension of time to comply with the Order to Show Cause, and Plaintiff filed his Response, titled, “Motion to: Show Cause” on May 18, 2020. ECF No. 13. He subsequently filed a document identifying James Key as his current custodian which the Court liberally construes as a Motion to Substitute the Proper Respondent. ECF No. 14. That Motion, ECF No. 14, is GRANTED. The District Court Clerk shall TERMINATE Respondent Donald Holbrook and ADD James Key.

6 The Court has reviewed the file, including Petitioner’s “Statement of the Case,” ECF No. 14 at 2−11, and is fully informed. Although granted the opportunity to do so, Petitioner has failed to demonstrate a statutory basis to delay the commencement of the federal limitations period regarding his May 5, 2015 Spokane County conviction for possession of heroin. See 28 U.S.C. § 2244(d). He has also failed to demonstrate a statutory or equitable basis to toll the federal limitations period which expired on June 6, 2016. See id.; see also Holland v. 13 Florida, 560 U.S. 631, 649 (2010); Waldron–Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008).

15 Petitioner’s efforts to challenge his 2015 conviction in 2018, 2019 and 2020, including his most recent effort documented in his Motion to Allow Additional Documents to Show Cause, ECF No. 11, were made after the federal limitations period had already expired and, therefore, will not toll it.

19 Consequently, IT IS ORDERED that this action is DISMISSED with prejudice as time barred under 28 U.S.C. § 2244(d).

1 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, provide copies to Petitioner, and close the file. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability is therefore DENIED.

7 DATED June 9, 2020.

s/ Rosanna Malouf Peterson 9 ROSANNA MALOUF PETERSON United States District Judge