-JLT (HC) Pritchett v. McEwen, No. 1:2010cv02008 - Document 14 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS re: Respondent's 8 MOTION to DISMISS the Petition; ORDER DIRECTING Objections to be Filed Within Twenty Days, signed by Magistrate Judge Jennifer L. Thurston on 3/31/2011, referred to Judge O'Neill. Objections to F&R due within twenty (20) days after being served with a copy. (Marrujo, C)

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-JLT (HC) Pritchett v. McEwen Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHARLES EDWARD PRITCHETT, ) ) Petitioner, ) ) v. ) ) ) LELAND McEWEN, ) ) Respondent. ) ____________________________________) 1:10-cv-02008-LJO-JLT HC FINDINGS AND RECOMMENDATION RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (Doc. 8) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS 17 PROCEDURAL HISTORY 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. The instant federal petition for writ of habeas corpus was filed on 20 October 18, 2010.1 On November 24, 2010, the Court ordered Respondent to file a response. (Doc. 21 22 1 23 24 25 26 27 28 In Houston v. Lack, the United States Supreme Court held that a pro se habeas petitioner's notice of appeal is deemed filed on the date of its submission to prison authorities for mailing, as opposed to the date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 166, 276, 108 S.Ct. 2379, 2385 (1988). The rule is premised on the pro se prisoner's mailing of legal documents through the conduit of "prison authorities whom he cannot control and whose interests might be adverse to his." Miller v. Sumner, 921 F.2d 202, 203 (9 th Cir. 1990); see, Houston, 487 U.S. at 271, 108 S.Ct. at 2382. The Ninth Circuit has applied the “mailbox rule” to state and federal petitions in order to calculate the tolling provisions of the AEDPA. Saffold v. Neland, 250 F.3d 1262, 1268-1269 (9th Cir. 2000), amended May 23, 2001, vacated and remanded on other grounds sub nom. Carey v. Saffold, 536 U.S. 214, 226 (2002); Stillman v. LaMarque, 319 F.3d 1199, 1201 (9 th cir. 2003); Smith v. Ratelle, 323 F.3d 813, 816 n. 2 (9th Cir. 2003). The date the petition is signed may be considered the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n. 2 (9th Cir. 2003). Accordingly, for all of Petitioner’s state petitions and for the instant federal petition, the Court will consider the date of signing of the petition (or the date of signing of the proof of service if no signature appears on the petition) as the earliest possible filing date and the operative date of filing under the mailbox rule for calculating the 1 Dockets.Justia.com 1 3). On January 24, 2011, Respondent filed the instant motion to dismiss, contending that the petition 2 was untimely. (Doc. 8). On February 16, 2011, Petitioner filed his opposition to the motion to 3 dismiss. (Doc. 13). 4 DISCUSSION 5 A. Procedural Grounds for Motion to Dismiss 6 As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside 7 the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules 8 Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from 9 the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the 10 11 district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Ninth Circuit has allowed Respondent’s to file a Motion to Dismiss in lieu of an Answer 12 if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 13 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 14 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 15 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for 16 state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 17 Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court 18 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 19 In this case, Respondent's Motion to Dismiss is based on a violation of 28 U.S.C. 20 2244(d)(1)'s one year limitation period. Because Respondent's Motion to Dismiss is similar in 21 procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state 22 procedural default and Respondent has not yet filed a formal Answer, the Court will review 23 Respondent’s Motion to Dismiss pursuant to its authority under Rule 4. 24 B. Limitation Period for Filing a Petition for Writ of Habeas Corpus 25 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 26 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas 27 28 running of the statute of limitation. Petitioner signed the Proof of Service on the instant petition on October 18. (Doc. 1, p. 12). 2 1 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 2 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 3 (1997). The instant petition was filed on October 18, 2010, and thus, it is subject to the provisions of 4 the AEDPA. 5 The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal 6 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) 7 reads: 8 9 10 (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 – (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; 11 12 (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; 13 14 (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 15 16 17 18 19 20 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (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. 28 U.S.C. § 2244(d). In most cases, the limitation period begins running on the date that the petitioner’s direct 21 review became final. Here, the Petitioner was convicted on April 13, 2007 in Tulare County 22 Superior Court of attempted murder, first degree burglary, second degree commercial burglary, 23 attempted home invasion, and conspiracy, and sentenced to an indeterminate prison term of 36 years 24 to life. (Doc. 10, Lodged Document (“LD”) 1). On direct appeal, the California Court of Appeal, 25 Fifth Appellate District (“5th DCA”), concluded that the trial court should have stayed one of the 26 prison terms, ordered the abstract of judgment modified to reflect the 5th DCA’s ruling, and 27 remanded the case to the trial court for re-calculation of pre-sentence credits. (LD 2). Petitioner’s 28 subsequent Petition for Review in the California Supreme Court was denied on May 20, 2009. (LD 3 1 4). On June 24, 2009, following remand pursuant to the order of the 5th DCA, the Tulare County 2 Superior Court issued an amended abstract of judgment reflecting the re-calculation of pre-sentence 3 credits. (LD 5). Petitioner did not appeal from the Superior Court’s order. 4 California state law governs the period within which prisoners have to file an appeal and, in 5 turn, that law governs the date of finality of convictions. See, e.g., Mendoza v. Carey, 449 F.3d 6 1065, 1067 (9th Cir. 2006); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1060 (C.D. Cal. 2001)(California 7 conviction becomes final 60 days after the superior court proceedings have concluded, citing prior 8 Rule of Court, Rule 31(d)). Pursuant to California Rules of Court, Rule 8.308(a), a criminal 9 defendant convicted of a felony must file his notice of appeal within sixty days of the rendition of 10 judgment. See People v. Mendez, 19 Cal.4th 1084, 1086, 969 P.2d 146, 147 (1999)(citing prior Rule 11 of Court, Rule 31(d)). 12 Because Petitioner did not file a notice of appeal from the amended abstract of judgment, his 13 direct review concluded on August 23, 2009, when the sixty-day period for filing a notice of appeal 14 expired. The one-year period under the AEDPA would have commenced the following day, on 15 August 24, 2009, and Petitioner would have had one year from that date, or until August 23, 2010, 16 within which to file his federal petition for writ of habeas corpus. See Patterson v. Stewart, 251 F.3d 17 1243, 1245 (9th Cir.2001). 18 As mentioned, the instant petition was filed on October 18, 2010, approximately fourteen 19 months after the date the one-year period would have expired. Thus, unless Petitioner is entitled to 20 either statutory or equitable tolling, the instant petition is untimely and should be dismissed. 21 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 22 Under the AEDPA, the statute of limitations is tolled during the time that a properly filed 23 application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. 24 § 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules 25 governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531 26 U.S. 4, 8, 121 S. Ct. 361 (2000). An application is pending during the time that ‘a California 27 petitioner completes a full round of [state] collateral review,” so long as there is no unreasonable 28 delay in the intervals between a lower court decision and the filing of a petition in a higher court. 4 1 Delhomme v. Ramirez, 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized 2 by Waldrip v. Hall, 548 F. 3d 729 (9th Cir. 2008)(per curium)(internal quotation marks and citations 3 omitted); see Evans v. Chavis, 546 U.S. 189, 193-194, 126 S. Ct. 846 (2006); see Carey v. Saffold, 4 536 U.S. 214, 220, 222-226, 122 S. Ct. 2134 (2002); see also, Nino v. Galaza, 183 F.3d 1003, 1006 5 (9th Cir. 1999). 6 Nevertheless, there are circumstances and periods of time when no statutory tolling is 7 allowed. For example, no statutory tolling is allowed for the period of time between finality of an 8 appeal and the filing of an application for post-conviction or other collateral review in state court, 9 because no state court application is “pending” during that time. Nino, 183 F.3d at 1006-1007; 10 Raspberry v. Garcia, 448 F.3d 1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling is 11 allowed for the period between finality of an appeal and the filing of a federal petition. Id. at 1007. 12 In addition, the limitation period is not tolled during the time that a federal habeas petition is 13 pending. Duncan v. Walker, 563 U.S. 167, 181-182, 121 S.Ct. 2120 (2001); see also, Fail v. 14 Hubbard, 315 F. 3d 1059, 1060 (9th Cir. 2001)(as amended on December 16, 2002). Further, a 15 petitioner is not entitled to statutory tolling where the limitation period has already run prior to filing 16 a state habeas petition. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) 17 does not permit the reinitiation of the limitations period that has ended before the state petition was 18 filed.”); Jiminez v. White, 276 F. 3d 478, 482 (9th Cir. 2001). Finally, a petitioner is not entitled to 19 continuous tolling when the petitioner’s later petition raises unrelated claims. See Gaston v. Palmer, 20 447 F.3d 1165, 1166 (9th Cir. 2006). 21 Here, the documents filed by Respondent with the motion to dismiss establish that Petitioner 22 filed the following state habeas petitions: (1) filed in the Superior Court of Tulare County on October 23 29, 2009, and denied on November 3, 2009 (LD 6, 7);2 (2) filed in the 5th DCA on December 6, 24 2009, and denied on January 27, 2010 (LD 8, 9); and (3) filed in the California Supreme Court on 25 February 16, 2010, and denied on September 22, 2010. (LD 10, 11). 26 27 2 28 In computing the running of the statute of limitations, the day an order or judgment becomes final is excluded and time begins to run on the day after the judgment becomes final. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9 th Cir. 2001) (Citing Rule 6 of the Federal Rules of Civil Procedure) . 5 1 Respondent contends that Petitioner is not entitled to an statutory tolling under the AEDPA 2 for any of the three petitions because they were not “properly filed,” as required by federal law. The 3 Court agrees. 4 In reviewing habeas petitions originating from California, the Ninth Circuit formerly 5 employed a rule that where the California courts did not explicitly dismiss for lack of timeliness, the 6 petition was presumed timely and was deemed “pending.” In Evans v. Chavis, 549 U.S.189 (2006), 7 the Supreme Court rejected this approach, requiring instead that the lower federal courts determine 8 whether a state habeas petition was filed within a reasonable period of time. 549 U.S. at 198 (“That 9 is to say, without using a merits determination as an ‘absolute bellwether’ (as to timeliness), the 10 federal court must decide whether the filing of the request for state court appellate review (in state 11 collateral review proceedings) was made within what California would consider a ‘reasonable 12 time.’”). However, “‘[w]hen a post-conviction petition is untimely under state law, that [is] the end 13 of the matter for purposes of § 2244(d)(2).’” Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 14 2005)(quoting Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005)). See also Carey v. Saffold, 536 U.S. 15 at 226. 16 Therefore, under the analysis mandated by the Supreme Court’s decisions in Pace and Evans, 17 this Court must first determine whether the state court denied Petitioner’s habeas application(s) as 18 untimely. If so, that is the end of the matter for purposes of statutory tolling because the petition was 19 then never properly filed and Petitioner would not be entitled to any period of tolling under § 20 2242(d)(2), either for the pendency of the petition itself or for the interval between that petition and 21 the denial of the previous petition. Bonner, 425 F.3d at 1148-1149. 22 Here, the first petition, filed in the Superior Court, was denied because Petitioner “failed to 23 raise the issues raised in his writ in a timely manner,” citing In re Clark, 5 Cal. 4th 750, 765 n. 5 24 (1993). (LD 7).3 The Superior Court noted that a “court will not consider the merits of a delayed 25 petition unless the petitioner provides an adequate justification for his failure to raise the claims in a 26 27 28 3 California has no specific time limit for filing a state habeas petition; instead, three leading decisions describe the State’s timeliness requirement, and In re Clark is one of those cases. W alker v. M artin, ___U.S.___, 131 S.Ct. 1120, 1125 (2011). California courts “signal that a habeas petition is denied as untimely by citing the controlling decisions,” such as Clark. Id., 131 S.Ct. at 1124. 6 1 timely filed petition,” and further noted that Petitioner had failed to provide a “reasonable 2 explanation for the [two year] delay” in bringing his claims. (Id.). Because a habeas petition denied 3 by a state court as untimely is not “properly filed” within the meaning of the AEDPA, it will not be 4 entitled to statutory tolling. Pace, 544 U.S. at 414. Accordingly, Petitioner’s first state court petition 5 is not entitled to statutory tolling. 6 Respondent next contends that Petitioner’s second and third state petitions, summarily denied 7 by the 5th DCA and the California Supreme Court, respectively, are not entitled to statutory tolling 8 under the “look through” doctrine. Again, the Court agrees. 9 In reviewing a state court’s summary denial of a habeas petition, the federal court must “look 10 through” the summary disposition to the last reasoned decision. Pham v. Terhune, 400 F.3d 740, 11 742 (9th Cir. 2005); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000)(citing Ylst v. 12 Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991)). Thus, where, as here, a state court petition is 13 denied as untimely–and therefore it is not entitled to tolling under Pace–subsequent petitions denied 14 without explanations in state court are assumed to have been denied on the same ground. See, e.g., 15 Bonner, 425 F.3d at 1147-1148, amended 449 F.3d 993, 994 n. 6 (9th Cir. 2006). 16 The documents filed by Respondent indicate that Petitioner’s second and third state petitions 17 were summarily denied without comment, analysis, or a statement of reasons. (LD 9, 11). Thus, the 18 Court “looks through” those latter two petitions to the reasoning of the last reasoned decision, i.e., 19 the decision of the Superior Court, which denied the petition as untimely under Clark. Therefore, 20 Petitioner’s second and third state petitions are presumed to have been denied as untimely as well, 21 and are thus not entitled to statutory tolling. 22 In his opposition to the motion to dismiss, Petitioner contends that the Clark timeliness bar is 23 neither independent nor adequate to establish a procedural bar. (Doc. 13, pp. 3-7). Petitioner’s 24 arguments are incorrect for at least two reasons. 25 First, Petitioner confuses the present analysis of statutory tolling within the context of the 26 AEDPA’s one-year limitation period, and the issue of procedural bar, which, to preclude a 27 petitioner’s claims from federal court review, must be both independent and adequate. The two 28 inquiries, i.e., statutory tolling and procedural default, are separate and distinct. The fact that a state 7 1 court imposes a procedural bar does not necessarily mean that the petition was not “properly filed” 2 within the meaning of the AEDPA. Artuz v. Bennett, 531 U.S. 4, 9, 121 S.Ct. 361 (2000)(“the 3 question of whether an application has been ‘properly filed’ is quite separate from the question 4 whether the claims contained in the application are meritorious and free from procedural bar.” 5 (Emphasis in original)). 6 Second, even if the issue presented was whether California’s timeliness bar was both 7 independent and adequate, the United States Supreme Court settled that question definitively in 8 Walker v. Martin, ___U.S.___, 131 S.Ct. 1120 (2011). There, after the petitioner conceded that 9 California’s timeliness rule was “independent,” the High Court concluded that the bar was also 10 11 “adequate” under controlling precedent. Id., 131 S.Ct. at 1128-1130. For these reasons, Petitioner’s opposition to the motion to dismiss presents no valid legal 12 obstacle to the Court’s conclusion that Petitioner is not entitled to statutory tolling for his three state 13 habeas petitions. Thus, unless he is entitled to equitable tolling, the petition is untimely and should 14 be dismissed. 15 D. Equitable Tolling 16 The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to 17 equitable tolling in appropriate cases. See Holland v. Florida, __U.S.__, 130 S.Ct. 2549, 2561 18 (2010); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997). The limitation 19 period is subject to equitable tolling when “extraordinary circumstances beyond a prisoner’s control 20 make it impossible to file the petition on time.” Shannon v. Newland, 410 F. 3d 1083, 1089-1090 21 (9th Cir. 2005)(internal quotation marks and citations omitted). “When external forces, rather than a 22 petitioner’s lack of diligence, account for the failure to file a timely claim, equitable tolling of the 23 statute of limitations may be appropriate.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). 24 “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: “(1) 25 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 26 his way.” 27 (2005). “[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the 28 exceptions swallow the rule.” Miranda v. Castro, 292 F. 3d 1062, 1066 (9th Cir. 2002)(citation Holland, 130 S.Ct. at 2652; Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807 8 1 omitted). As a consequence, “equitable tolling is unavailable in most cases.” Miles, 187 F. 3d at 2 1107. 3 Here, Petitioner has made no express claim of entitlement to equitable tolling and, based on 4 the record now before the Court, the Court sees no basis for such a claim. Accordingly, Petitioner is 5 not entitled to equitable tolling. Thus, the petition is untimely and should be dismissed. 6 RECOMMENDATION 7 Accordingly, the Court HEREBY RECOMMENDS that Respondent’s motion to dismiss 8 (Doc. 8) be GRANTED and the habeas corpus petition be DISMISSED for Petitioner’s failure to 9 comply with 28 U.S.C. § 2244(d)’s one year limitation period. 10 This Findings and Recommendation is submitted to the United States District Court Judge 11 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of 12 the Local Rules of Practice for the United States District Court, Eastern District of California. 13 Within twenty (20) days after being served with a copy, any party may file written objections with 14 the court and serve a copy on all parties. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 16 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 17 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 IT IS SO ORDERED. 22 Dated: March 31, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 9

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