Adrian Douglass v. F E Figueroa, No. 2:2011cv06162 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich re: First MOTION to Dismiss Petition for Writ of Habeas Corpus; Memorandum of Points and Authorities 14 . See document for details. (yb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 ADRIAN DOUGLASS, 12 Petitioner, 13 v. 14 MELISSA LEA,1 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) Case No. CV 11-6162-AJW MEMORANDUM OF DECISION 17 Petitioner filed this petition for a writ of habeas corpus on 18 July 18, 2011.2 Respondent filed a motion to dismiss the petition on 19 20 21 22 23 24 25 26 27 28 1 Petitioner is incarnated in an out of state correctional facility in Sagre, Oklahoma. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Melissa Lea, the Deputy Administrator of the California Out of State Correctional Facility Unit is substituted as the proper respondent. 2 Although the petition was filed by the Clerk on July 26, 2011, petitioner is entitled to the benefit of the mailbox rule, pursuant to which a state or federal habeas petition is deemed filed on the date on which petitioner handed it to the proper prison official for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a pro se prisoner s pleading is deemed filed at the moment it is delivered to prison authorities for forwarding to the district court). Although petitioner indicates that he mailed the petition himself, the Court assumes petitioner handed his petition to the proper official on the date he signed the certificate of service. [Petition, 1 the ground that it is untimely. Petitioner did not file an opposition 2 to the motion.3 3 4 Discussion Section 2244(d) imposes a one-year statute of limitations for the 5 filing of habeas corpus petitions by state prisoners. 6 2244(d). 28 U.S.C. § It provides: 7 (d)(1) A 1-year period of limitation shall apply 8 to an application for a writ of habeas corpus by 9 a person in custody pursuant to the judgment of a 10 State court. The limitation period shall run 11 from the latest of -- 12 (A) the date on which the judgment became final by the 13 conclusion of direct review or the expiration of the 14 time for seeking such review; 15 (B) 16 application created by State action in violation of the 17 Constitution or laws of the United States is removed, 18 if the applicant was prevented from filing by such 19 State action; 20 (C) 21 asserted was initially recognized by the Supreme Court, 22 if the right has been newly recognized by the Supreme the date on which the impediment to filing an the date on which the constitutional right 23 24 Certificate of Service]. 25 3 27 Pursuant to Local Rule 7-12, failure to file an opposition may be deemed consent to the granting of the motion. Therefore, the motion to dismiss also may be granted on the basis of petitioner s failure to oppose the motion. 28 2 26 1 Court and made retroactively applicable to cases on 2 collateral review; or 3 (D) 4 claim or claims presented could have been discovered 5 through the exercise of due diligence. the date on which the factual predicate of the 6 (2) 7 State 8 respect to the pertinent judgment or claim is pending shall 9 not be counted toward any period of limitation under 10 11 12 The time during which a properly filed application for post-conviction or other collateral review with this subsection. 28 U.S.C. § 2244(d)(1) & (2). Petitioner entered into a plea agreement, petitioner pleaded no 13 contest to attempted murder, and petitioner admitted that he 14 personally used a firearm and inflicted great bodily injury in the 15 commission of the offense. [Petition at 2; Lodged Documents ( LD ) 1 16 & 2]. 17 serious or violent felony within the meaning of California s Three 18 Strikes Law. [Petition at 2]. 19 sentenced to state prison for a term of 31 years. 20 consisted of the upper term for the attempted murder (nine years), 21 doubled pursuant to California s Three Strikes Law, plus an additional 22 ten years for the firearm enhancement and three years for the great 23 bodily injury enhancement. [Petition at 2; LDs 1 & 2]. Because 24 petitioner did not file a direct appeal,4 his conviction became final Petitioner also admitted that he had a prior conviction of a On June 14, 2006, petitioner was The sentence 25 26 4 27 Although petitioner says that he did appeal [Petition at 2-3], his citation reveals that he is referring to the habeas petition he filed in the California Court of Appeal. The California docket 28 3 1 on August 2 See Cal.Rules Court 30.1(a); see also Smith v. Duncan, 297 F.3d 809, 3 813 (9th Cir. 2002). 4 2007, to file his federal habeas petition. 5 251 F.3d 1243, 1245-1246 (9th Cir.), cert. denied, 534 U.S. 978 6 (2001); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Calderon 7 v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th 8 Cir. 1997), cert. denied, 522 U.S. 1099 & 523 U.S. 1061 (1998), 9 overruled on other grounds by Calderon v. United States District Court 10 (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc), cert. denied, 526 U.S. 11 1060 (1999). 12 13, 2006, when the time to file an appeal expired. Petitioner had one year, or until August 13, See Patterson v. Stewart, This petition was not filed until July 18, 2011, almost four 13 years after the limitation period expired. Absent grounds for 14 statutory or equitable tolling of the limitation period, the petition 15 is time-barred. 16 Statutory Tolling 17 The limitation period does not run while a properly filed state 18 application for post-conviction relief is pending. 28 U.S.C. § 19 2244(d)(2). See Carey v. Saffold, 536 U.S. 214, 218-219 (2002). 20 Petitioner did not file any state habeas petitions during the 21 relevant period. Rather, his first filing in state court was a motion 22 requesting copies of the transcript, which was filed on June 11, 2010. 23 [Lodged Document ( LD ) 3]. Not only was that motion filed long after 24 the limitation period had expired, but it was not a properly filed 25 application for State post-conviction or other collateral review with 26 27 28 reflects that petitioner filed no http://appellatecases.courtinfo.ca.gov. 4 direct appeal. See 1 respect to the pertinent judgment or claim.... See 28 U.S.C. 2 §2244(d)(2); Rosati v. Kernan 417 F.Supp.2d 1128, 1131 (C.D.Cal. 2006) 3 (explaining that the limitation period is not tolled during the 4 pendency of a motion for transcripts). 5 Subsequently, petitioner filed three habeas petitions in the 6 state courts. However, the petitions were filed after the limitation 7 period already had expired. 8 Consequently, none of petitioner s state petitions toll the already- 9 expired limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 10 823 (9th Cir.) ( section 2244(d) does not permit the reinitiation of 11 the limitations period that has ended before the state petition was 12 filed ), cert. denied, 540 U.S. 924 (2003), [LDs 4-6; Petition, Attachment, Ex. 1]. 13 Equitable tolling 14 The limitation period also can be equitably tolled. Petitioner 15 is entitled to equitable tolling only if he shows (1) that he has 16 been pursuing his rights diligently, and (2) that some extraordinary 17 circumstance stood in his way. Holland v. Florida, ___ U.S. ___, 130 18 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 19 418 (2005)). 20 21 Petitioner does not allege, and nothing in the record suggests, that equitable tolling is warranted in this case. 22 Delayed accrual 23 Petitioner s claims rely at least in part upon the Supreme 24 Court s decision in Cunningham v. California, 549 U.S. 270 (2007),5 25 26 5 27 In Cunningham, the Supreme Court held that California's Determinate Sentencing Law violated the Sixth Amendment because it permitted imposition of sentences above the relevant statutory 28 5 1 which was decided on January 22, 2007. [Petition, Attachment]. 2 Although he does not say so, petitioner might argue that he is 3 entitled to a later starting date because his claims rely upon a right 4 newly recognized by the Supreme Court. 5 accrual date pursuant to 28 U.S.C. §2244(d)(1)(C), petitioner must 6 rely on a new rule of constitutional law recognized by the Supreme 7 Court, and that right must have been made retroactively applicable to 8 cases on collateral review. To be entitled to a later 9 Petitioner s Cunningham claim meets neither of these criteria. 10 To begin with, the Ninth Circuit has held that Cunningham did not 11 announce a new constitutional right, but simply applied earlier 12 Supreme Court precedent concerning a similar state sentencing scheme 13 to California. 14 2008); Butler v. Curry, 528 F.3d 624, 635-636 (9th Cir.), cert. 15 denied, ___ U.S. ___, 129 S.Ct. 767 (2008). 16 fails to satisfy the first criterion. 17 1642525, * 4 n. 6 (C.D.Cal. 2010) (holding that a Cunningham claim did 18 not fall within § 2244(d)(1)(C) s delayed accrual provision because 19 Cunningham did not announce a new constitutional right), report and 20 recommendation adopted, 2010 WL 1642160. 21 has not held that Cunningham is retroactively applicable to cases on 22 collateral review. 23 second criterion. See Soja v. Hornbeck, 2010 WL 3118716, *2 (N.D.Cal. 24 2010) 25 2244(d)(1)(C) s delayed accrual provision because the Supreme Court (holding See Wright v. Dexter, 546 F.3d 1096, 1097 (9th Cir. that Accordingly, petitioner See Zakoda v. Martel, 2010 WL Moreover, the Supreme Court Accordingly, petitioner does not satisfy the a Cunningham claim did not fall within § 26 27 maximum based on facts found by a judge, rather than by a jury. Cunningham, 549 U.S. at 274. 28 6 1 did not make it retroactive); Matson v. Allison, 2010 WL 3942835, *2 2 (E.D.Cal. 2010) (same). 3 trigger 4 2244(d)(1)(C). 5 deferred Therefore, the Cunningham decision does not accrual of the limitation period under For the foregoing reasons, the petition is dismissed as untimely. 6 7 Dated: December 19, 2011 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § ______________________________ Andrew J. Wistrich United States Magistrate Judge

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