(HC) Allen v. People of the State of California et al, No. 1:2012cv01235 - Document 18 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that the 15 Motion to Dismiss be Granted and the Habeas Corpus Petition be Dismissed with Prejudice signed by Magistrate Judge Gary S. Austin on 12/13/2012. Referred to Judge Ishii; Objections to F&R due by 1/17/2013.(Flores, E)
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(HC) Allen v. People of the State of California et al Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 LESLIE RAYMOND ALLEN, 1:12-CV-01235 AWI GSA HC 10 Petitioner, FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS 11 v. 12 [Doc. #15] 13 DANIEL PARAMO, Warden, 14 Respondent. / 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 BACKGROUND 19 Petitioner is currently in the custody of the California Department of Corrections and 20 Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern, following 21 his conviction by jury trial on April 24, 2008, of multiple counts of lewd and lascivious acts with a 22 minor under fourteen years of age; possession of a firearm by a convicted felon; possession of 23 ammunition by a convicted felon; and possession of material depicting minors engaged in sexual 24 conduct. (Lodged Doc. No. 1.1) On May 22, 2008, Petitioner was sentenced to serve a consecutive 25 indeterminate term of 375 years to life in state prison. (Lodged Doc. No. 1.) 26 Petitioner appealed the conviction to the California Court of Appeals, Fifth Appellate 27 28 1 “Lodged Doc.” refers to the documents lodged by Respondent in support of his motion to dismiss. U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 District. On June 18, 2009, the appellate court affirmed the judgment. (Lodged Doc. No. 2.) 2 Petitioner then filed a petition for review in the California Supreme Court. On September 23, 2009, 3 the petition was summarily denied. (Lodged Doc. No. 4.) Petitioner did not file any post-conviction 4 collateral challenges with respect to the judgment in the state courts. 5 On June 29, 2012, Petitioner filed the instant federal petition for writ of habeas corpus in this 6 Court. On October 29, 2012, Respondent filed a motion to dismiss the petition as being filed outside 7 the one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1), and for failure to exhaust state 8 remedies. Petitioner did not file an opposition to Respondent’s motion to dismiss. 9 10 DISCUSSION I. Procedural Grounds for Motion to Dismiss 11 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 12 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 13 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 14 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 15 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 16 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 17 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 18 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for 19 state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 20 Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court 21 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 22 In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s 23 one-year limitations period, and for failure to exhaust state remedies. Accordingly, the Court will 24 review Respondent’s motion to dismiss pursuant to its authority under Rule 4. 25 II. Limitation Period for Filing a Petition for Writ of Habeas Corpus 26 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 27 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for writ of 28 habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, U .S. D istrict C ourt E. D . C alifornia cd 2 1 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 2 586 (1997). 3 In this case, the petition was filed on June 29, 2012, and therefore, it is subject to the 4 provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on petitioners 5 seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, 6 § 2244, subdivision (d) reads: 7 (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 – 8 9 (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; 10 (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; 11 12 (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 13 14 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 16 (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. 17 18 28 U.S.C. § 2244(d). 19 In most cases, the limitations period begins running on the date that the petitioner’s direct 20 review became final. In this case, the petition for review was denied by the California Supreme 21 Court on September 23, 2009. Thus, direct review concluded on December 22, 2009, when the 22 ninety (90) day period for seeking review in the United States Supreme Court expired. Barefoot v. 23 Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. 24 Bowersox, 159 F.3d 345, 347 (8th Cir.1998). Petitioner had one year, until December 22, 2010, 25 absent applicable tolling, to file his federal petition for writ of habeas corpus. However, Petitioner 26 delayed filing the instant petition until June 29, 2012, over a year and a half beyond the expiration of 27 the limitations period. Absent any applicable tolling, the instant petition is barred by the statute of 28 limitations. U .S. D istrict C ourt E. D . C alifornia cd 3 1 A. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 2 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application 3 for State post-conviction or other collateral review with respect to the pertinent judgment or claim is 4 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In 5 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 6 properly pursuing post-conviction relief, and the period is tolled during the intervals between one 7 state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the 8 state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 9 1999), cert. denied, 120 S.Ct. 1846 (2000). 10 In this case, Petitioner did not file any post-conviction or other collateral review actions with 11 respect to the pertinent judgment in the state courts. Therefore, Petitioner is not entitled to statutory 12 tolling and the instant federal petition remains untimely. 13 B. Equitable Tolling 14 The limitations period is subject to equitable tolling if the petitioner demonstrates: “(1) that 15 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 16 way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Irwin v. Department of Veteran 17 Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), 18 citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert denied, 522 U.S. 19 814 (1997). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 20 U.S. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 21 (9th Cir.1993). Here, the Court finds no reason to equitably toll the limitations period. 22 III. Exhaustion of State Remedies 23 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 24 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 25 exhaustion doctrine is based on comity to the state court and gives the state court the initial 26 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 27 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 28 1163 (9th Cir. 1988). U .S. D istrict C ourt E. D . C alifornia cd 4 1 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 2 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 3 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 4 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 5 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 6 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 7 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 8 9 Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 10 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 11 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 12 reiterated the rule as follows: 13 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 14 15 16 17 18 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 19 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 20 21 22 23 24 25 26 27 28 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). U .S. D istrict C ourt E. D . C alifornia cd 5 1 In the instant petition, Petitioner raises three claims of ineffective assistance of counsel. 2 Petitioner did not raise these claims to the California Supreme Court. Therefore, the instant petition 3 is completely unexhausted and should ordinarily be dismissed without prejudice to give Petitioner an 4 opportunity to first seek relief in the state courts. 28 U.S.C. § 2254(b)(1). In this case, however, the 5 petition is also untimely. Therefore, exhaustion would be futile as future federal proceedings would 6 be barred. As such, the petition should be dismissed with prejudice. 7 RECOMMENDATION 8 Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be 9 GRANTED and the habeas corpus petition be DISMISSED WITH PREJUDICE for Petitioner’s 10 failure to comply with 28 U.S.C. § 2244(d)’s one year limitation period and for failure to exhaust 11 state remedies. 12 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 13 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 14 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within thirty (30) days after being served with a copy of this Findings and Recommendation, 16 any party may file written objections with the Court and serve a copy on all parties. Such a 17 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 18 Replies to the Objections shall be served and filed within ten (10) court days (plus three days if 19 served by mail) after service of the Objections. The Finding and Recommendation will then be 20 submitted to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 21 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may 22 waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 23 1991). 24 25 26 IT IS SO ORDERED. Dated: 6i0kij December 13, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia cd 6
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