Colbert v. Bennett

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE BOBBY COLBERT, CASE NO. 2:24-cv-01002-DGE Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 JASON BENNETT, 14 Respondent.

16 Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Theresa L. Fricke. (Dkt. No. 33.) Having reviewed the Report and Recommendation and the remaining record de novo, and considered Petitioner’s objections, the Court ADOPTS the R&R. 20 I. FACTUAL AND PROCEDURAL BACKGROUND 21 On July 29, 2024, Petitioner Bobby Darrell Colbert filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2005 Skagit County convictions for rape in the second and third degree. (Dkt. No. 8.) Petitioner challenges his convictions based upon the alleged failure of the Skagit County prosecutor to disclose an exculpatory DNA report until February 1, 2019. (Dkt. No. 8 at 5.)

3 On February 20, 2025, Judge Fricke issued an R&R recommending the Court dismiss the petition, or, in the alternative, transfer the case to the Ninth Circuit. (Dkt. No. 33.) Judge Fricke found the petition was second or successive, and noted the Court did not have jurisdiction to consider this petition until after Petitioner applied for, and received, authorization from the Ninth Circuit to file a second or successive petition. (Id. at 8–13.) Judge Fricke also found the petition should be dismissed as time barred. (Id. at 14–16.) On February 25, 2025, Petitioner filed objections to the R&R. (Dkt. No. 35.)

10 On March 12, 2025, Petitioner filed an application with the Ninth Circuit for permission to file a second or successive habeas corpus petition. (Dkt. No. 36.) On April 29, 2025, the Ninth Circuit denied Petitioner’s application. (Dkt. No. 37.)

13 II. LEGAL STANDARD 14 A district court reviews de novo “those portions of the report or specified proposed findings or recommendations to which [an] objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”).

18 III. DISCUSSION 19 Petitioner’s objections do not address Judge’s Fricke’s reasoning concerning whether his petition is second or successive.1 Pursuant to 28 U.S.C. § 2244(b)(3)(A), a “second or Though not a model of clarity, Petitioner appears to argue that his Petition is not barred based on Panetti v. Quarterman, 551 U.S. 930, 947 (2007). (Dkt. No. 35 at 2.) Panetti, however, involved a claim of incompetency raised to prevent an execution; it is inapplicable to the present matter. See 551 at 947 (“The statutory bar on ‘second or successive’ applications does not apply to a Ford [(incompetency)] claim brought in an application filed when the claims is first ripe.”).

1 successive petition” may not be filed in the district court until the petitioner first obtains an order from the “appropriate court of appeals” that “authoriz[es] the district court to consider” the petition. Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (“If the petition is second or successive, then the district court lacks jurisdiction and must dismiss the petition unless and until the court of appeals grants an application to file it.”). Here, the Ninth Circuit has denied Petitioner’s application to file a second or successive petition and the Court lacks jurisdiction to consider the petition.

8 IV. ORDER 9 The Court, having reviewed the Report and Recommendation, the petition for writ of federal habeas corpus relief, objections to the Report and Recommendation, and the remaining record de novo, does hereby find and ORDER: 12 1) The Court ADOPTS the Report and Recommendation (Dkt. No. 33); 13 2) Petitioner’s 28 U.S.C. § 2254 petition (Dkt. No. 8) is DISMISSED because the 14 Court lacks jurisdiction.

15 3) Petitioner is DENIED issuance of a certificate of appealability.

17 Dated this 4th day of June, 2025.

A David G. Estudillo 20 United States District Judge