Cox v. Bennett

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA BRIAN GLENN COX, Case No. 3:23-cv-05036-TMC-TLF Petitioner, ORDER ON REPORT AND RECOMMENDATION v. JASON BENNETT, Respondent.

14 The Court, having reviewed the Report and Recommendation of Judge Theresa L. Fricke, United States Magistrate Judge, Petitioner Brian Cox’s objections to the Report and Recommendation, and the remaining record, does hereby find and ORDER: 17 1. The Court adopts the Report and Recommendation except for the recommendation to 18 deny a certificate of appealability.

19 a. The Court has conducted de novo review of the Report and Recommendation 20 based on Petitioner Cox’s objections. Fed. R. Civ. P. 72(b); United States v. 21 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

22 b. Cox first objects that the Magistrate Judge incorrectly determined that the 23 habeas petition is barred by the statute of limitations. Dkt. 38 at 1–8. After 1 conducting de novo review, the Court agrees with and adopts the Magistrate 2 Judge’s analysis. The U.S. Supreme Court has “repeatedly held that a state 3 court’s interpretation of state law, including one announced on direct appeal 4 of the challenged conviction, binds a federal court sitting in habeas corpus.”

5 Bradshaw v. Richey, 546 U.S. 74, 76 (2005). The Washington Court of 6 Appeals determined as a matter of state law that Cox’s time for seeking direct 7 review by the Washington Supreme Court expired on December 9, 2016.

8 Dkt. 13-1 at 225.

9 c. Cox also objects to the Magistrate Judge’s conclusion that his claim is not 10 subject to equitable tolling. After conducting de novo review, the Court agrees 11 with and adopts the Magistrate Judge’s conclusion. Even if the discovery of 12 new emails relevant to Cox’s Brady claim in August 2017 amounts to an 13 extraordinary circumstance, Cox has not shown that he acted with reasonable 14 diligence and that this extraordinary circumstance prevented him from making 15 a timely filing after learning of the emails’ existence. Smith v. Davis, 953 F.3d 16 582, 589 (9th Cir. 2020) (en banc).

17 d. Finally, Cox objects to the Magistrate Judge’s recommendation that a 18 certificate of appealability be denied. Because the Court finds that reasonable 19 jurists could disagree with its conclusions or conclude the issues presented are 20 adequate to receive further review, the Court declines to adopt that portion of 21 the Report and Recommendation and will grant a certificate of appealability.

22 2. Petitioner’s habeas corpus petition is DENIED with prejudice.

23 3. The Court GRANTS a certificate of appealability as to whether Cox’s petition was 24 timely filed and whether Cox was entitled to equitable tolling. l Dated this 1st day of November, 2024. ; Zag 3 Tiffa . Cartwright United States District Judge 1]