Weatherman v. Haynes

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA LARRY DEAN WEATHERMAN, CASE NO. 3:20-CV-06087-JLR-DWC 11 Petitioner, ORDER 12 v. RON HAYNES, 14 Respondent.

16 The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge David W. Christel. The Court has reviewed the Amended Petition (hereinafter “Petition”), Respondent’s Answer to the Petition and relevant state court record, Petitioner’s Response to the Answer, and Respondent’s Reply. See Dkt. 7, 9, 10, 11, 12.

20 In the Answer, Respondent argues the Petition is time-barred and Petitioner has not shown he is entitled to equitable tolling or he is actually innocent. Dkt. 9. In the Response, Petitioner argues for the first time he is actually innocent based on testimony from a witness, Melissa Porter.1 Dkt. 11 at 6. In the Reply, Respondent addresses Plaintiff’s actual innocence argument. Dkt. 12. Respondent submits, for the first time, trial transcripts showing Ms. Porter testified at trial but arguing this evidence does not show Petitioner is actually innocent based on new reliable evidence not presented at trial to excuse the timeliness of the Petition. Dkt. 12 (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)).

6 As Respondent addressed Petitioner’s actual innocence argument for the first time in the Reply and submitted additional trial transcripts, Petitioner did not have an opportunity to respond.2 The Court, therefore, finds it appropriate to allow Petitioner to file a supplemental response.

10 Accordingly, Petitioner may file a supplemental response on or before March 26, 2021.

11 Petitioner’s supplemental response should be no more than five (5) pages in length and shall respond only to Respondent’s assertion that Petitioner is not actually innocent. Respondent may file a supplemental reply to Petitioner’s supplemental response on or before April 2, 2021.

14 Respondent’s supplemental reply should be no more than five (5) pages in length and shall respond only to Petitioner’s supplemental response.

16 The Clerk is directed to re-note the Petition (Dkt. 7) for consideration on April 2, 2021.

17 Dated this 18th day of February, 2021.

A David W. Christel 20 United States Magistrate Judge In the memorandum attached to the Petition, Petitioner references Ms. Porter, but does not frame his argument as alleging actual innocence. See Dkt. 7 at 52-53.

2 In submitting the state court record, Respondent indicated he had received the trial transcripts but did not believe they were relevant at that time. See Dkt. 10 at 3.