Katrina Molholland v. Tina Hornbeck, No. 5:2008cv00823 - Document 16 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The Court finds that the petition in this case was untimely filed and that Petitioner is not entitled to tolling for a period of time that would make this petition timely. It is ORDERED that the petition be dismissed with prejudice. (See Order for further details) (db)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 KATRINA MULHOLLAND, 12 Petitioner, 13 v. 14 TINA HORNBECK, Warden, 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 08-00823-MLG MEMORANDUM OPINION AND ORDER I. Facts and Procedural History 19 This is a pro se petition for writ of habeas corpus filed by a 20 state prisoner under 28 U.S.C. § 2254.1 The pleadings show that on 21 July 21, 2006, following a negotiated guilty plea, Petitioner was 22 convicted in the San Bernardino County Superior Court of voluntary 23 manslaughter and kidnapping, with an enhancement for knowing that a 24 principal was personally armed with a firearm, in violation of 25 California Penal Code §§ 192(a), 207(a) and 12022(d). On August 18, 26 2006, Petitioner was sentenced to a term of 12 years in prison, in 27 accordance with the terms of the plea agreement. 28 1 The parties have consented to this Court s exercise of civil jurisdiction pursuant to 28 U.S.C. § 636(c). 1 Petitioner did not seek direct review of the conviction and 2 sentence. However, on May 17, 2007, Petitioner constructively filed 3 a motion for modification of sentence in the San Bernardino County 4 Superior Court.2 Petitioner alleged that her sentence to the upper 5 term of 11 years on the manslaughter conviction, without submission 6 of the aggravating factors to a jury, was unconstitutional under the 7 recent 8 California, 549 U.S. 270 (2007).3 The superior court denied the 9 motion on May 29, 2007. United States Supreme Court decision in Cunningham v. 10 On August 27, 2007, Petitioner filed a petition for writ of 11 habeas corpus in the San Bernardino County Superior Court. (Lodgment 12 5.) The petition was denied on September 19, 2007. (Lodgment 6.) On 13 September 30, 2007, Petitioner filed a habeas corpus petition in the 14 California Court of Appeal, which the court denied on November 15, 15 2007. (Lodgments 7, 8.) Petitioner then filed a habeas corpus 16 petition in the California Supreme Court on November 25, 2007, which 17 the court denied on February 28, 2008. (Lodgments 9, 10.) All of 18 these petitions challenged the imposition of the upper term sentence 19 based on the Cunningham decision. 20 It appears that on March 19, 2008, Petitioner filed a document 21 22 23 24 25 2 Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 276 (1988), a pro se prisoner s habeas corpus petitions are deemed filed when they are delivered to prison officials for mailing. For purposes of this opinion, the Court will deem the date that Petitioner signed all petitions and motions as their filing date. See also Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). 3 26 27 28 There, the Supreme Court held that the imposition of an upper term sentence under California s three-tier sentencing scheme violated the defendant s Sixth and Fourteenth Amendment right to a jury trial because it assigns to the trial judge, not the jury, authority to find facts that expose a defendant to an elevated upper term sentence. Id. at 871. 2 1 entitled Motion to Toll Time for Writ of Habeas Corpus with this 2 Court. Court records indicate that a deputy clerk construed the 3 motion as one relating to a pending case and returned the document 4 to Petitioner without filing, because it did not have a valid case 5 number. Petitioner did not follow up with this filing. Instead, on 6 April 28, 2008, she filed a petition for writ of certiorari in the 7 United States Supreme Court, which the Supreme Court denied on 8 October 6, 2008. Mulholland v. California, No. 07-11135, 2008 WL 9 2227352 (S. Ct. Oct. 8, 2008). 10 Meanwhile, on June 14, 2008, Petitioner filed a second Motion 11 to Toll Time for Writ of Habeas Corpus with this Court. This time, 12 the motion was given a case number, assigned to a district judge, and 13 referred to this Court. On June 23, 2008, the Court dismissed the 14 motion to toll time, finding that there was no subject matter 15 jurisdiction to consider such a motion. Construing the petition as 16 one seeking a writ of habeas corpus, the Court found that it was 17 insufficient as a matter of law as there was no statement of the 18 underlying conviction, no information concerning the state appellate 19 history, and no allegation of the underlying facts or claims for 20 relief. Petitioner was granted leave to file a petition for writ of 21 habeas corpus correcting these deficiencies. 22 On July 29, 2008, Petitioner filed the current petition for writ 23 of habeas corpus. Petitioner continues to claim that the trial court 24 erred in sentencing her to the upper term sentence without a jury 25 finding the aggravating factors to support such a sentence. On August 26 29, 2008, Respondent filed a motion to dismiss the petition, arguing 27 that it is untimely. On September 22, 2008, Petitioner filed a 28 Motion to Grant Petition for Writ of Habeas Corpus, in which she 3 1 opposes the motion to dismiss. 2 In her opposition briefing, Petitioner contends that she is 3 entitled to equitable tolling of the statute of limitations because 4 1) she was unable to access the law library during her first 60 days 5 in prison custody; 2) the conditions in California prisons are 6 crowded; and 3) she is not well educated in legal matters. Petitioner 7 further claims that she is entitled to a period of statutory tolling 8 that would render this petition timely. The matter is ready for 9 decision. 10 11 II. Analysis 12 The Antiterrorism and Effective Death Penalty Act of 1996 13 ( AEDPA ), 28 U.S.C. § 2244(d)(1),4 was enacted on April 24, 1996, 14 and applies to all federal habeas corpus petitions filed after that 15 date. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997); Patterson v. 16 Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). AEDPA amended 28 U.S.C. 17 § 2244 to impose a one-year statute of limitations on federal habeas 18 petitions by persons in custody pursuant to state court judgments. 19 See Patterson, 251 F.3d at 1245; Tillema v. Long, 253 F.3d 494, 498 20 (9th Cir. 2001). The one-year limitations period ordinarily runs from 21 4 22 23 24 25 26 27 28 28 U.S.C. § 2244(d)(1) states: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of - (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4 1 the date on which the judgment became final by the conclusion of 2 direct review or the expiration of the time for seeking such review. 3 28 U.S.C. § 2244(d)(1)(A); see Smith v. Duncan, 297 F.3d 809, 812-13 4 (9th Cir. 2002), abrogation on other grounds recognized by Moreno v. 5 Harrison, 245 Fed. Appx. 606 (9th Cir. 2007). In California, the time 6 for seeking direct review expires sixty days after the date of 7 judgment. Cal. R. Ct. 8.308(a). 8 Because Petitioner did not seek direct review of her conviction, 9 the limitations period began to run on October 17, 2006, 60 days 10 after Petitioner was sentenced. Accordingly, Petitioner had until 11 October 17, 2007, in which to timely file a petition for writ of 12 habeas corpus. See Patterson, 251 F.3d at 1245. This petition was not 13 filed until July 29, 2008. Absent some basis for statutory or 14 equitable tolling of the limitations period, the petition is clearly 15 untimely. 16 A. Statutory Tolling 17 AEDPA permits statutory tolling of the limitations period when 18 a 19 conviction remedy is pending in state court. 28 U.S.C. § 2244(d)(2) 20 ( The time during which a properly filed application for State post- 21 conviction or other collateral review with respect to the pertinent 22 judgment or claim is pending shall not be counted toward any period 23 of limitation under this subsection. ). A petition is properly 24 filed if its delivery and acceptance are in compliance with the 25 applicable laws and rules governing filings in that state. Bonner 26 v. Carey, 425 F.3d 1145, 1147 (9th Cir. 2005)(quoting Artuz v. 27 Bennett, 531 U.S. 4, 8 (2000)). 28 properly In the filed application, absence of undue motion delay, 5 or an petition for application a for post- post- 1 conviction review is considered to be pending while the petitioner 2 completes a full round of state collateral review. Delhomme v. 3 Ramirez, 340 F.3d 817, 819 (9th Cir. 2003)(citing Biggs v. Duncan, 4 339 F.3d 1045, 1048 (9th Cir. 2003)). A full round includes the 5 reasonable intervals between a lower court s denial of a habeas 6 petition and the filing of a subsequent petition at the next state 7 appellate level, known as gap tolling. Id. A round of collateral 8 review is complete when the California Supreme Court s denial of the 9 habeas petition is final. Id. at 820 (citing Carey v. Saffold, 536 10 U.S. 214, 220 (2002)). At that point, AEDPA s one-year statute of 11 limitations again begins running. 12 Here, Petitioner filed a motion for modification of sentence on 13 May 17, 2007, which was denied on May 29, 2007. Petitioner waited 90 14 days, until August 27, 2007, before filing a habeas corpus petition 15 in the San Bernardino County Superior Court. Petitioner s full 16 round of state habeas corpus review, beginning on August 27, 2007, 17 with the superior court habeas corpus petition, ended on February 28, 18 2008, when the California Supreme Court denied her last petition. 19 At the time Petitioner filed her motion for modification, 212 20 days of the 365-day limitations period had passed, leaving 153 days 21 before the statute of limitations expired. The Court will assume, 22 without deciding, that the motion for modification comes within the 23 definition of post-conviction review under 28 U.S.C. § 2244(d)(2), 24 and that Petitioner is entitled to statutory tolling for the twelve 25 days during which the motion was pending. 26 However, Petitioner is not entitled to gap tolling for the 90 27 days 28 modification between the and superior the filing court s of her 6 denial first of her state motion habeas for corpus 1 petition, because the motion for modification did not commence the 2 full round of review, and thus no petition was pending during that 3 time. Moreover, Petitioner would not be entitled to tolling for the 4 90-day gap because the motion and petition were filed in the same 5 court rather than the successive appellate level courts. See Biggs, 6 339 F.3d at 1048 (holding that gap tolling is appropriate during the 7 intervals between a lower court decision and the filing of a new 8 application in a higher court); see also Evans v. Chavis, 546 U.S. 9 189, 192-93 (2006); Carey, 536 U.S. at 223; Delhomme, 340 F.3d at 10 11 821. Petitioner is entitled to statutory tolling for the entire 12 period 13 completed one full round of habeas corpus petitions in the California 14 state courts. See Carey, 536 U.S. at 222-23. At the completion of 15 this round of petitions, on February 28, 2008, Petitioner still had 16 63 days, until May 1, 2008, to file a timely federal habeas corpus 17 petition. from August 27, 2007, to February 28, 2008, while she 18 On March 19, 2008, Petitioner submitted her first Motion to 19 Toll Time for Writ of Habeas Corpus to this Court. As noted above, 20 this document was not filed by the Court but instead was returned to 21 Petitioner. Even if the Court had accepted the motion for filing, it 22 still was not a valid habeas corpus petition and would not have 23 tolled the statute of limitations.5 24 Appx. 831, 832 (9th Cir. 2007). Such a motion seeks relief which the 25 Court could not grant without violating the case or controversy See Warren v. Harrison, 244 Fed. 26 5 27 28 It is also well established that tolling is not available for the time during which a habeas corpus petition is pending in federal court. Duncan v. Walker, 533 U.S. at 181-182; Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002). 7 1 requirement 2 Constitution. See Valley Forge Christian Coll. v. Americans United 3 for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); 4 Chairez v. Adams, 2007 WL 1703750 (N.D. Cal. 2007); In re Brockett, 5 2006 WL 1329675 (N.D. Cal. 2006); see also United States v. Leon, 203 6 F.3d 162, 164 (2d Cir. 2000)(holding that a federal court lacks 7 jurisdiction to consider the timeliness of a § 2255 petition until 8 a petition actually is filed). of Article III, Section 2 of the United States 9 Finally, as discussed above, Petitioner filed a petition for 10 writ of certiorari in the U.S. Supreme Court on April 28, 2008, which 11 was denied on October 6, 2008. That Court has explicitly held that 12 the one-year limitations period for filing a federal habeas corpus 13 petition is not tolled while a petition for writ of certiorari is 14 pending. Lawrence v. Florida, 549 U.S. 327, 127 S. Ct. 1079, 1082-84 15 (2007). Accordingly, Petitioner is not entitled to statutory tolling 16 for the period of time during which her petition for writ of 17 certiorari was pending in the United States Supreme Court. 18 Even applying all statutory tolling to which Petitioner arguably 19 may be entitled, the limitations period expired on May 1, 2008. The 20 petition in this case was not filed until July 29, 2008.6 Absent the 21 benefit of equitable tolling, the petition is untimely. 22 B. Equitable Tolling 23 Petitioner s claim of entitlement to equitable tolling is also 24 without merit. AEDPA s limitations provision is subject to equitable 25 tolling when extraordinary circumstances beyond a prisoner s 26 27 28 6 For the reasons stated above, Petitioner s motion to toll time filed on June 14, 2008, could not be deemed to be a petition for writ of habeas corpus. Even if it were, it was still untimely. 8 1 control prevented her from filing a petition on time. Harris v. 2 Carter, 515 F.3d 1051, 1055-56 (9th Cir. 2008); Rasberry v. Garcia, 3 448 F.3d 1150, 1154 (9th Cir. 2006); Espinoza-Matthews v. California, 4 432 F.3d 1021, 1026 (9th Cir. 2005); see also Lott v. Mueller, 304 5 F.3d 918, 922 (9th Cir. 2002); Miranda v. Castro, 6 1066-67 (9th Cir. 2002); Miles v. Prunty, 187 F.3d 1104, 1107 (9th 7 Cir. 1999). Thus, in rare and limited circumstances, it is proper for 8 a court to equitably toll AEDPA s statute of limitations. See e.g., 9 Miles, 187 F.3d at 1107. Determining whether to apply the equitable 10 tolling doctrine is highly fact specific, and the petitioner bears 11 the 12 Espinoza-Matthews, 432 F.3d at 1026 (quoting Gaston v. Palmer, 417 13 F.3d 1030, 1034 (9th Cir. 2005)). Furthermore, the petitioner must 14 demonstrate that she exercised reasonable diligence in attempting 15 to file a habeas petition after the extraordinary circumstances 16 began, 17 circumstances and the failure to file [be] broken. Spitsyn v. Moore, 18 345 F.3d 796, 802 (9th Cir. 2003) (quoting Valverde v. Stinson, 224 19 F.3d 129, 134 (2d Cir. 2000)). burden lest of showing the link that of equitable causation tolling between is the 292 F.3d 1063, appropriate. extraordinary 20 Petitioner s lack of education, legal knowledge and expertise 21 does not entitle her to equitable tolling. It is well established 22 that a prisoner's educational deficiencies, ignorance of the law, or 23 lack of legal expertise is not an extraordinary circumstance and does 24 not equitably toll the limitations period. See Rasberry, 448 F.3d at 25 1154; Fisher v. Ramirez-Palmer, 219 F. Supp. 2d 1076, 1079 (E.D. Cal. 26 2002); Eisermann v. Penarosa, 33 F. Supp. 2d 1269, 1273 (D. Haw. 27 1999). While there is no question that Petitioner acted diligently 28 and that her untimeliness is the result of a failure to comprehend 9 1 the arcane requirements of AEDPA, that is insufficient to warrant the 2 application of equitable tolling. 3 Petitioner also has failed to demonstrate that her inability to 4 access the law library during the first 60 days of her incarceration 5 or the overcrowded conditions of the California prison system were 6 extraordinary 7 petition on time. Notwithstanding those conditions, Petitioner deftly 8 pursued her California state post-conviction remedies. The error that 9 resulted in this untimely filing was made in March 2008, when 10 Petitioner decided to file a petition for writ of certiorari with the 11 United States Supreme Court rather than a habeas corpus petition in 12 this Court. The lack of access to the law library during the first 13 60 days of her incarceration in August-October 2006 had no apparent 14 bearing on that decision. Indeed, the Cunningham decision, upon which 15 Petitioner bases her claim for relief, was not decided until January 16 22, 2007. Petitioner has not established an entitlement to equitable 17 tolling. circumstances that prevented her from filing her 18 19 III. Conclusion 20 For the reasons discussed above, the Court finds that the 21 petition in this case was untimely filed and that Petitioner is not 22 entitled to tolling for a period of time that would make this 23 petition timely. It is ORDERED that the petition be dismissed with 24 prejudice. 25 Dated: October 8, 2008 26 27 28 ________________________________ Marc L. Goldman United States Magistrate Judge 10

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