(HC) Meda v. Curry, No. 1:2009cv00161 - Document 28 (E.D. Cal. 2010)
Court Description: ORDER GRANTING 16 Respondent's Motion to Dismiss and DISMISSING the Action With Prejudice; ORDER DIRECTING Clerk to Enter Judgment and Close the Case; and ORDER DECLINING to Issue a Certificate of Appealability, signed by Magistrate Judge Sandra M. Snyder on 5/27/2010. CASE CLOSED. (Jessen, A)
Download PDF
<![CDATA[
(HC) Meda v. Curry Doc. 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSE MEDA, 10 Petitioner, 11 12 13 v. BEN CURRY, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—00161-SMS-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (DOC. 16) AND DISMISSING THE ACTION WITH PREJUDICE ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 16 Petitioner is a state prisoner proceeding pro se and in 17 forma pauperis with a petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the 19 parties have consented to the jurisdiction of the United States 20 Magistrate Judge to conduct all further proceedings in the case, 21 including the entry of final judgment.1 Pending before the Court 22 is Respondent’s motion to dismiss the petition for untimeliness, 23 which was filed on December 3, 2009, along with lodged documents. 24 Petitioner filed opposition on March 15, 2010. Respondent filed 25 26 27 28 1 The parties manifested their consent in written consent forms signed by them or by their representatives and filed by Petitioner on July 23, 2008, February 5, 2009, and October 19, 2009, and on behalf of Respondent on December 3, 2009. 1 Dockets.Justia.com 1 a reply on May 3, 2010, and lodged an additional document. 2 Pursuant to Local Rule 230(l), the motion is submitted for 3 decision without oral argument. 4 I. Motion to Dismiss for Untimeliness 5 Respondent has filed a motion to dismiss the petition on the 6 7 ground that the petition was untimely filed. Rule 4 of the Rules Governing Section 2254 Cases (Habeas 8 Rules) allows a district court to dismiss a petition if it 9 “plainly appears from the face of the petition and any exhibits 10 annexed to it that the petitioner is not entitled to relief in 11 the district court....” 12 In the Ninth Circuit, respondents have been allowed to file 13 a motion to dismiss pursuant to Rule 4 instead of an answer if 14 the motion to dismiss attacks the pleadings by claiming that the 15 petitioner has failed to exhaust state remedies or has violated 16 the state’s procedural rules. 17 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion 18 to dismiss a petition for failure to exhaust state remedies); 19 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 20 4 to review a motion to dismiss for state procedural default); 21 Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) 22 (same). 23 the Court orders the respondent to respond, and the Court should 24 use Rule 4 standards to review a motion to dismiss filed before a 25 formal answer. 26 See, e.g., O’Bremski v. Maass, 915 Thus, a respondent may file a motion to dismiss after See, Hillery, 533 F. Supp. at 1194 & n. 12. In this case, Respondent's motion to dismiss addresses the 27 timing of the filing of the petition. 28 pertinent to the motion are mainly to be found in copies of the 2 The material facts 1 official records of state judicial proceedings which have been 2 provided by Respondent and Petitioner, and as to which there is 3 no factual dispute. Because Respondent has not filed a formal 4 answer and because Respondent's motion to dismiss is similar in 5 procedural standing to a motion to dismiss for failure to exhaust 6 state remedies or for state procedural default, the Court will 7 review Respondent’s motion to dismiss pursuant to its authority 8 under Rule 4. 9 10 II. The Limitations Period On April 24, 1996, Congress enacted the Antiterrorism and 11 Effective Death Penalty Act of 1996 (AEDPA), which applies to all 12 petitions for writ of habeas corpus filed after its enactment. 13 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 14 F.3d 1484, 1499 (9th Cir. 1997). 15 for writ of habeas corpus on July 9, 2008. 16 applies to the petition. 17 Petitioner filed his petition Thus, the AEDPA The AEDPA provides a one-year period of limitation in which 18 a petitioner must file a petition for writ of habeas corpus. 19 U.S.C. § 2244(d)(1). 20 proceedings for collateral review as a basis for tolling the 21 running of the period. 22 23 It further identifies the pendency of some As amended, subdivision (d) provides: (d)(1) 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 –- 24 25 (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; 26 27 28 28 (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 3 1 filing by such State action; 2 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 3 4 5 6 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 7 8 9 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 10 28 U.S.C. § 2244(d). 11 III. Analysis 12 Pursuant to § 2244(d)(1)(A), the limitation period runs from 13 the date on which the judgment became final. 14 Here, the parties disagree on when direct review concluded. 15 Further, Petitioner asserts equitable defenses to the running of 16 the statute, argues that state rulings could not serve as 17 adequate and independent procedural grounds, and contends that 18 the decision in Cunningham v. California, 549 U.S. 270 (2007) 19 constituted a new rule of law. 20 A. Factual Summary 21 An abstract of judgment of the Superior Court of the County 22 of Tulare in case number Cr-F-01-75146-2, filed on January 18, 23 2002, reflects that upon his pleas of no contest entered on 24 October 30, 2001, Petitioner was convicted of voluntary 25 manslaughter in violation of Cal. Pen. Code § 192(a) and assault 26 with a semi-automatic firearm in violation of Cal. Pen. Code § 27 245(b); he was also subject to a sentence enhancement pursuant to 28 4 1 Cal. Pen. Code § 12022.5(a). 2 Petitioner was sentenced to an upper term of eleven years on the 3 manslaughter, a lower term of two years on the assault, and four 4 years on the enhancement; his total determinate term was 5 seventeen years. 6 (LD 1.) On January 18, 2002, (Id.) Petitioner appealed to the Court of Appeal of the State of 7 California, Fifth Appellate District (DCA), which, in an opinion 8 filed on March 18, 2003, affirmed the judgment but determined 9 that the record suggested that the sentencing court did not 10 appreciate its discretionary power to grant probation to 11 Petitioner. 12 permit the sentencing court to consider whether Petitioner should 13 be granted probation. 14 that Petitioner sought review of the DCA’s opinion in the 15 California Supreme Court. 16 Thus, the DCA remanded the case for resentencing to (LD 2.) There is no evidence suggesting An amended abstract of judgment reflects that resentencing 17 occurred in compliance with the opinion of the DCA, and the 18 Tulare County Superior Court again sentenced Petitioner to a 19 determinate state prison term of seventeen years on November 5, 20 2003. 21 (LD 3.) Petitioner filed an appeal, and the DCA affirmed the 22 judgment in case number F44312 in an opinion filed on March 16, 23 2005. 24 (LD 4.) A petition for review was denied by the California Supreme 25 Court by order filed June 8, 2005, in case number S133265. 26 denial was without prejudice to any relief to which Petitioner 27 might be entitled after the Supreme Court determined “in People 28 v. Black S126182, and People v. Towne, S125677, the effect of 5 The 1 Blakely v. Washington (2004) __ U.S. __ 124 S. Ct. 2531, on 2 California law.” 3 4 There is no evidence before the Court suggesting that Petitioner sought certiorari. 5 6 (LD 5.)2 Petitioner filed in the state courts three collateral, postconviction petitions with respect to the pertinent judgment. 7 On March 27, 2007, with the assistance of the public 8 defender, Petitioner filed a petition for habeas corpus in the 9 Tulare County Superior Court, case number VHC 181001, alleging 10 error pursuant to Cunningham v. California, 549 U.S. 270 (2007) 11 (Cunningham error), because factors used to impose the upper term 12 were neither admitted by Petitioner nor found true beyond a 13 reasonable doubt by the trier of fact. 14 2007, the Tulare Superior Court denied the petition because 15 Cunningham had not precluded a waiver of a jury trial on the 16 issues of aggravating factors or an agreement to enter a plea in 17 exchange for a lesser term of imprisonment than the defendant 18 could receive should he be convicted in a jury trial. 19 had initially been charged with murder and attempted murder in 20 violation of Cal. Pen. Code § 187, which carried a maximum 21 sentence of fifty years to life. 22 chosen not to be exposed to fifty years to life in prison and to 23 take the court’s indicated sentence of up to twenty-three years 24 in prison; he had received the benefit of his bargain. 25 2.) 26 (LD 6.) (LD 7 at 1.) On March 28, Petitioner Petitioner had (LD 7 at On May 22, 2007, a petition for writ of habeas corpus was 27 28 2 No copy of the petition for review is in the record before this Court. (Mot. 2 n. 1.) 6 1 filed in the DCA alleging Cunningham error. 2 2007, the DCA denied the petition in a single sentence without a 3 statement of reasons or citation to authority. 4 (LD 8.) On May 24, (LD 9.) On July 7, 2007, Petitioner filed a petition for writ of 5 habeas corpus in the California Supreme Court, case number 6 S154321, alleging Cunningham error. 7 2007, the Supreme Court denied the petition in a single sentence 8 without a statement of reasons or citation to any authority. 9 11.) 10 11 12 On December 19, The limitation period begins running on the latest of several dates. § 2244(d)(1). 1. Final Judgment Respondent argues that the limitation period began running 15 on the date on which the judgment became final pursuant to § 16 2244(d)(1)(A). 17 Under § 2244(d)(1)(A), the “judgment” refers to the sentence 18 imposed on the petitioner. 19 57 (2007). 20 November 5, 2003. 21 (LD B. Commencement of the Running of the Statutory Period 13 14 (LD 10.) Burton v. Stewart, 549 U.S.147, 156- The last sentence was imposed on Petitioner on Under § 2244(d)(1)(A), a judgment becomes final either upon 22 the conclusion of direct review or the expiration of the time for 23 seeking such review in the highest court from which review could 24 be sought. 25 2001). 26 upon either 1) the conclusion of all direct criminal appeals in 27 the state court system, followed by either the completion or 28 denial of certiorari proceedings before the United States Supreme Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. The statute commences to run pursuant to § 2244(d)(1)(A) 7 1 Court; or 2) if certiorari was not sought, then by the conclusion 2 of all direct criminal appeals in the state court system followed 3 by the expiration of the time permitted for filing a petition for 4 writ of certiorari. 5 Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied 525 6 U.S. 1187 (1999)). 7 Wixom, 264 F.3d at 897 (quoting Smith v. Here, Petitioner’s direct review concluded when his petition 8 for review was denied by the California Supreme Court on June 8, 9 2005. The time for direct review expired ninety days thereafter 10 on September 6, 2005, when the period for seeking a writ of 11 certiorari concluded. 12 (9th Cir. 1999). 13 September 7, 2005, to expire one year later on September 6, 2006. 14 Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) 15 (holding analogously that the correct method for computing the 16 running of the one-year grace period is pursuant to Fed. R. Civ. 17 P. 6(a), in which the day upon which the triggering event occurs 18 is not counted). 19 See, Bowen v. Roe, 188 F.3d 1157, 1158-59 Thus, the limitations period began to run on The petition was filed here on July 9, 2008. Thus, absent 20 any tolling, the petition shows on its face, that it was filed 21 outside the one-year limitations period provided for by the 22 statute. 23 24 C. Statutory Tolling pursuant to 28 U.S.C. § 2244(d)(2) Title 28 U.S.C. § 2244(d)(2) states that the “time during 25 which a properly filed application for State post-conviction or 26 other collateral review with respect to the pertinent judgment or 27 claim is pending shall not be counted toward” the one-year 28 limitation period. 28 U.S.C. § 2244(d)(2). 8 1 Once a petitioner is on notice that his habeas petition may 2 be subject to dismissal based on the statute of limitations, he 3 has the burden of demonstrating that the limitations period was 4 sufficiently tolled by providing pertinent dates of filing and 5 denial, although the state must affirmatively argue that the 6 petitioner failed to meet his burden of alleging the tolling 7 facts; simply noting the absence of such facts is not sufficient. 8 Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002). 9 Here, Petitioner did not file his first state petition for 10 collateral relief until March 27, 2007. 11 period had run by the time any application for collateral relief 12 was filed in the state courts. 13 Thus, the statutory Under such circumstances, the pendency of state applications 14 has no tolling effect. 15 (9th Cir. 2003) (filing a state collateral petition after the 16 running of the one-year limitations period of the AEDPA but even 17 before the expiration of the pertinent state period of finality 18 did not toll the running of the period under § 2244(d)(2)). 19 20 D. Ferguson v. Palmateer, 321 F.3d 820, 823 Equitable Tolling In his opposition to the motion to dismiss, Petitioner 21 argues that the running of the statute was equitably tolled by 22 various circumstances. 23 1. Legal Standards 24 The governing standards are established: 25 “[A] litigant seeking equitable tolling [of the one-year AEDPA limitations period] bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). “[T]he threshold necessary to 26 27 28 9 1 trigger equitable tolling under [the] AEDPA is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotation marks and citation omitted). This high bar is necessary to effectuate the “AEDPA's statutory purpose of encouraging prompt filings in federal court in order to protect the federal system from being forced to hear stale claims.” Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (internal quotation marks and citation omitted). Equitable tolling determinations are “highly fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (per curiam). Accord Lott v. Mueller, 304 F.3d 918, 923 (9th Cir.2002) (observing that equitable tolling determinations “turn[] on an examination of detailed facts”). 2 3 4 5 6 7 8 9 Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006). 10 Petitioner bears the burden of alleging facts that would 11 give rise to tolling. Smith v. Duncan, 297 F.3d 809 (9th Cir. 12 2002). The prisoner must show that the extraordinary 13 circumstances were the cause of his untimeliness. Stillman v. 14 LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003). 15 2. Ignorance and Ineffective Assistance of Counsel 16 Petitioner states under penalty of perjury that his 17 “procedural default,” which is understood as his delay in filing 18 his petition here, was due to his counsel’s failure to advise him 19 of the procedures to be followed to proceed to federal court on 20 his claim after the petition for review was denied by the 21 California Supreme Court on June 8, 2005. (Opp. 5, 3.) The 22 attorney to whom he refers was his counsel on his appeal to the 23 DCA. Petitioner states that as an uninformed layperson, he did 24 not know the proper procedures or time limits and believed and 25 assumed that his counsel filed a further appeal. (Opp. 3.) 26 Petitioner’s right under the Sixth and Fourteenth Amendments 27 to counsel on appeal was limited to his first appeal as of right; 28 10 1 it did not extend to discretionary appeals or to collateral 2 attacks on convictions. 3 555 (1987). 4 counsel on collateral attacks even if those proceedings were the 5 first opportunity in which Petitioner could raise the previous 6 ineffectiveness of counsel. 7 (9th Cir. 1994). 8 petitioner seeks to attribute his delay in filing a federal 9 petition to counsel’s conduct at a time when the petitioner did 10 not have a constitutional right to counsel to perfect his post- 11 conviction petitions. 12 (2007). 13 Pennsylvania v. Finley, 481 U.S. 551, Petitioner did not have a Sixth Amendment right to Jeffers v. Lewis, 68 F.3d 299, 300 Equitable tolling is not warranted where a Lawrence v. Florida, 549 U.S. 327, 336 Petitioner’s first appeal as of right terminated on March 14 16, 2005, when the DCA affirmed the judgment upon direct appeal 15 from the resentencing of November 2003. 16 when petitioning for habeas relief, Petitioner had no right to 17 counsel under the Constitution. 18 alleged ineffective assistance of counsel occurred, Petitioner 19 did not have a right to counsel. 20 Thereafter, including Thus, at the time that the Generally, counsel’s negligence will not be sufficient to 21 constitute extraordinary circumstances that would warrant 22 equitable tolling. 23 (9th Cir. 2002); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 24 2001). 25 of an attorney may constitute an extraordinary circumstance 26 warranting equitable tolling of AEDPA's statute of limitations. 27 Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (recognizing 28 equitable tolling in a capital case where counsel failed to Miranda v. Castro, 292 F.3d 1063, 1066-67 However, sufficiently egregious and atypical misconduct 11 1 perform work for an extended period of time and retained the 2 client’s papers throughout the limitations period despite the 3 client’s diligence in communication); Calderon v. U.S. Dist. 4 Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on 5 other grounds by Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 6 530, 540-41 (9th Cir. 1998). 7 Petitioner states that he believed and assumed that counsel 8 would file a further appeal. 9 specific facts in support of this general statement. Petitioner does not state any He refers 10 to counsel’s failure to advise him of the procedures to be 11 followed to proceed to federal court; he does not specify any 12 affirmative misrepresentation about that process, or any 13 expressed undertaking of counsel to continue beyond the scope of 14 the appointed representation on the first appeal of right or 15 otherwise to file for additional relief in other courts. 16 Petitioner has not established that there was any extreme or even 17 gross misfeasance or malfeasance of counsel within the scope of 18 the appellate proceedings before the DCA that could be 19 characterized as extraordinary. 20 burden to specify the facts that demonstrate that it was 21 extraordinary circumstances, and not Petitioner’s lack of 22 diligence, from which the untimeliness resulted. 23 465 F.3d 964, 973 (9th Cir. 2006). 24 Petitioner thus has not met his Roy v. Lampert, Further, there is no showing how counsel’s failure of advice 25 in early 2005 actually caused Petitioner’s continued failure to 26 seek relief in the federal courts. 27 final in September 2005, it was about eighteen months until 28 Petitioner first sought collateral, post-conviction relief in the 12 After direct review became 1 Superior Court. 2 respect to the errors alleged on the basis of Cunningham v. 3 California, 549 U.S. 270 (2007), which was decided in January 4 2007, Petitioner has not provided facts concerning this period 5 that explain the delay with respect to his other claims 6 concerning the sentencing in 2003 as to which direct appellate 7 review in the state courts was final in September 2005. Even if this delay were understandable with 8 Further, after the California Supreme Court denied his third 9 state petition in December 2007, Petitioner delayed in filing his 10 petition in federal court for almost seven months until July 11 2008. 12 extraordinary circumstances or demonstrating diligence. 13 Petitioner provides no specific facts constituting The repeated delays are inconsistent with reasonable 14 diligence. 15 the Court addressed whether petitions that were untimely pursuant 16 to state standards were “properly filed” under § 2244(d)(2), and 17 it assumed that the doctrine of equitable tolling could be 18 applied to toll the running of § 2244(d). 19 held that a petitioner proceeding pursuant to § 2254 was 20 nevertheless not entitled to equitable tolling because he had not 21 demonstrated diligence. 22 plea had been known to the petitioner for ten years. 23 petitioner had repeatedly delayed, with the most recent delay 24 enduring for five months after the date of finality in the state 25 courts, he was not entitled to statutory tolling under § 2244(d), 26 and likewise was not entitled to equitable tolling, even if he 27 had relied on erroneous judicial decisions to his detriment, 28 because he lacked diligence. In Pace v. DiGuglielmo, 544 U.S. 408, 418-19 (2005), In Pace, the Court Facts pertinent to the validity of his Id. at 418-19. 13 Because the 1 Part and parcel of Petitioner’s assertion here concerning 2 counsel’s inaction or failure of advice is the additional 3 circumstance of Petitioner’s ignorance. 4 penalty of perjury that he did not know the proper procedure or 5 time limits for filing a petition in this Court. 6 se petitioner's confusion or ignorance of the law is not alone a 7 circumstance warranting equitable tolling. 8 448 F.3d 1150, 1154 (9th Cir. 2006). 9 anything more than individual ignorance or generalized confusion. Petitioner states under However, a pro Rasberry v. Garcia, Petitioner has not shown 10 Further, Petitioner has not alleged specific facts showing 11 that he was diligent or lacked the time or resources with which 12 to exercise a diligent attempt to learn the relatively simple 13 procedures for seeking review by the California Supreme Court and 14 for filing for relief in the federal system. 15 that the failure of the person seeking equitable tolling to 16 exercise reasonable diligence in attempting to file timely after 17 the extraordinary circumstances begin disrupts the link of 18 causation between the circumstances and the failure to file. 19 Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003). 20 It is established Here, Petitioner’s delays in commencing proceedings to 21 obtain post-conviction, collateral relief and in bringing his 22 claims to federal court after state court review was completed 23 and final are significantly longer than the unexplained periods 24 of three (3) months to four (4) months held to have been 25 unreasonable and inconsistent with the diligent pursuit of rights 26 required for entitlement to equitable tolling in Chaffer v. 27 Prosper, 592 F.3d 1046, 1048-49 (9th Cir. 2010). 28 In summary, the Court concludes that Petitioner has not 14 1 shown that the circumstances of his ignorance and his counsel’s 2 alleged omissions warranted equitable tolling. 3 4 5 6 7 8 9 10 3. Prison Transfers and Programs Petitioner asserts that his untimely filing was because of circumstances warranting relief: [E]xternal forces beyond petitioner’s control of counsel not advising petitioner of the procedures on proceeding to federal court on his claim and of being transferred to various institutions and being on modified prison programs resulted on (sic) petitioner’s late filing of his petition to this Court.... (Opp. 5.) In order to establish that timely filing was prevented by 11 external circumstances, it is a petitioner’s burden to establish 12 the specific facts concerning the particular grounds asserted to 13 have prevented timely filing; further, the petitioner must 14 establish that timely filing was rendered impossible by the 15 condition alleged to warrant tolling, including the petitioner’s 16 ignorance or lack of notice of pertinent decisions or 17 developments in his case, the complete unavailability of legal 18 papers or library materials, or placement or programming in 19 prison precluding the timely filing of a petition. 20 Yates, 571 F.3d 993, 997-1001 (9th Cir. 2009); Espinoza-Matthews 21 v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005). 22 warrant the extraordinary intervention of equity, a petitioner is 23 required to set forth facts concerning the absence of specific 24 resources and the precise effect thereof on the ability to file a 25 timely petition. 26 Cir. 2010). Generally, transfers of inmates within the prison 27 system and a shortage of library access or volumes are not 28 extraordinary circumstances; rather, they are ordinary Ramirez v. To Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th 15 1 2 vicissitudes of prison life. Id. Here, Petitioner makes only the most generalized assertions 3 concerning transfers and programming. 4 extraordinary circumstances or diligence. 5 concludes that Petitioner has failed to establish that the 6 running of the statute should be equitably tolled. 7 8 9 10 11 E. He has not demonstrated Therefore, the Court Newly Recognized Constitutional Right Petitioner argues that the statutory period began to run on a date subsequent to the time of the finality of the judgment, namely, pursuant to § 2244(d)(1)(C): 13 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.... 14 Petitioner contends that Cunningham v. California is either a 15 retroactive, new rule of law, or if not retroactive, a watershed 16 exception that permits his claim of Cunningham error to be 17 reached in this proceeding. 12 18 (Opp. 3-4.) Under Teague v. Lane, 489 U.S. 288 (1989), a new rule of law 19 is generally not retroactive and thus applies only to cases that 20 are still on direct review; “old” rules of criminal procedure 21 generally apply both on direct and collateral review. 22 Bockting, 549 U.S. 406, 416 (2007). 23 the decision in Cunningham did not announce a new rule of law, 24 but rather merely applied the rule announced by the Supreme Court 25 in Blakely v. Washington, 542 U.S. 296 (2004). 26 528 F.3d 624, 639-39 (9th Cir. 2008). 27 28 Whorton v. It has been determined that Butler v. Curry, The rule of Blakely, which was new, is not retroactively applicable to cases on collateral review. 16 Schardt v. Payne, 414 1 F.3d 1025, 1034-36 (9th Cir. 2005). 2 advantage of the particular new rule. 3 Thus, Petitioner cannot take Further, as Respondent notes, Petitioner’s contentions 4 concerning Blakely were briefed by Petitioner during the direct 5 review process in the Court of Appeal. 6 appellate court considered the arguments in its opinion and 7 concluded that Blakely and related authority did not apply in the 8 particular circumstances of Petitioner’s case. (LD 4-5.) 9 California Supreme Court’s order of denial expressly referred to (LD 12.) The state The 10 a case pending before it concerning the effect of Blakely v. 11 Washington on California law. 12 13 (LD 5.) The Court concludes that Petitioner has not established that his circumstances come within the terms of § 2244(d)(1)(C). 14 F. Untimeliness as a Procedural Default 15 Petitioner argues that his default of untimeliness was not 16 sufficiently independent or adequate to prevent federal review. 17 (Opp. 2.) 18 In White v Martel, 601 F.3d 882 (9th Cir. 2010), it was 19 argued that California's timeliness rule was not an “adequate” 20 procedural bar because it was vague, ambiguous, and 21 inconsistently applied. 22 adequacy analysis used in considering procedural default issues 23 is inapplicable to the issue of whether a state petition was 24 “properly filed” for purposes of section 2244(d)(2). 25 Martel, 601 F.3d 882, 884 (citing Zepeda v. Walker, 581 F.3d 26 1013, 1018 (9th Cir. 2009)). 27 Petitioner’s diligence and the circumstances, and to conclude 28 that the petitioner was not entitled to statutory or equitable The court determined, however, that the White v The court proceeded to analyze 17 1 tolling, all without reference to the adequacy of California’s 2 processes. 3 With respect to the applicability of the adequacy analysis, 4 there does not appear to be any reason to adopt a different 5 position with respect to equitable, as distinct from statutory, 6 tolling. 7 connection with the request for equitable relief are already 8 before the Court. 9 Any special circumstances sought to be considered in Petitioner also argues that at no time did the state courts 10 deny the petition as being untimely or procedurally defaulted, 11 and further that his claims were exhausted; thus, Jiminez v. 12 Rice, 276 F.3d 478, 482 (9th Cir. 2001) and Ferguson v. 13 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), authorities relied 14 on by Respondent, do not apply. 15 (Pet. 3.) However, it is not asserted or contended by Respondent that 16 the state courts either found that the petitions filed in the 17 state courts were untimely or imposed a procedural bar to 18 consideration of Petitioner’s claims by this Court. 19 The Court concludes that Petitioner has not demonstrated 20 extraordinary circumstances or diligence, and thus he is not 21 entitled to equitable tolling of the statutory period. 22 In summary, the Court finds that the facts concerning the 23 various state proceedings are undisputed. 24 outside of the one-year statutory period, and Petitioner failed 25 to demonstrate his entitlement to relief from the bar of the 26 statute of limitations. 27 28 The petition was filed Accordingly, Respondent’s motion to dismiss the petition as untimely will be granted. 18 1 ///// 2 IV. 3 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 4 appealability, an appeal may not be taken to the court of appeals 5 from the final order in a habeas proceeding in which the 6 detention complained of arises out of process issued by a state 7 court. 8 U.S. 322, 336 (2003). 9 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 of a constitutional right. 11 petitioner must show that reasonable jurists could debate whether 12 the petition should have been resolved in a different manner or 13 that the issues presented were adequate to deserve encouragement 14 to proceed further. 15 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 16 certificate should issue if the Petitioner shows that jurists of 17 reason would find it debatable whether the petition states a 18 valid claim of the denial of a constitutional right and, with 19 respect to procedural issues, that jurists of reason would find 20 it debatable whether the district court was correct in any 21 procedural ruling. 22 (2000). 23 of the claims in the habeas petition, generally assesses their 24 merits, and determines whether the resolution was debatable among 25 jurists of reason or wrong. 26 applicant to show more than an absence of frivolity or the 27 existence of mere good faith; however, it is not necessary for an 28 applicant to show that the appeal will succeed. § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, 529 U.S. 473, 483-84 In determining this issue, a court conducts an overview Id. 19 It is necessary for an Id. at 338. 1 A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the 3 applicant. 4 Habeas Rule 11(a). Here, because the facts concerning the various state 5 proceedings are undisputed, and because Petitioner failed to 6 demonstrate by specific facts his entitlement to relief from the 7 bar of the statute of limitations, jurists of reason would not 8 find it debatable whether the Court was correct in its ruling. 9 Accordingly, the Court concludes that Petitioner has not made a 10 substantial showing of the denial of a constitutional right, and 11 the Court declines to issue a certificate of appealability. 12 V. Disposition 13 Accordingly, it is ORDERED that: 14 1) Respondent’s motion to dismiss the petition is GRANTED; 15 and 16 17 2) The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE as untimely filed; and 18 19 3) The Clerk is DIRECTED to enter judgment and close the case; and 20 21 4) The Court DECLINES to issue a certificate of appealability. 22 23 IT IS SO ORDERED. 24 Dated: icido3 May 27, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 25 26 27 28 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
