(HC) Darnell v. Sherman, No. 1:2016cv00396 - Document 9 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Violation of the One-Year Statute of Limitations; ORDER Directing that Objections be Filed Within Twenty-One Days; ORDER Directing Clerk of Court to Assign District Judge to Case, signed by M agistrate Judge Jennifer L. Thurston on 4/19/16. This Case is Assigned to District Judge Anthony W. Ishii and Magistrate Judge Jennifer L. Thurston. The New Case Number is 1:16-cv-00396-AWI-JLT. Referred to Judge Ishii. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE DARNELL, 12 Petitioner, 13 v. 14 STU SHERMAN, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-00396-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR VIOLATION OF THE ONE-YEAR STATUTE OF LIMITATIONS ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 18 Petitioner filed this action on March 20, 2016.1 After a preliminary review of the petition 19 20 revealed that the petition appeared to be untimely, the Court ordered Petitioner to show cause why the 21 petition should not be dismissed. (Doc. 4). On April 8, 2016, Petitioner filed his response, indicating 22 23 24 25 26 27 28 1 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 actual 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 (9th Cir. 1990); see Houston, 487 U.S. at 271. 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); Stillman v. LaMarque, 319 F.3d 1199, 1201 (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 running of the statute of limitation. Petitioner signed the proof of service for the instant petition on March 20, 2016. (Doc. 1, p. 55). 1 1 that he has mental and physical disabilities, that he has sought to exhaust claims in state court, and that 2 he believes the weight of evidence does not support his conviction. (Doc. 6). In the Court’s view, 3 these claims fall far short of establishing timeliness; thus, the Court will recommend that the petition 4 be dismissed. DISCUSSION 5 6 A. Preliminary Review of Petition. 7 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 8 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 9 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 10 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 11 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 12 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 13 The Ninth Circuit, in Herbst v. Cook, concluded that a district court may dismiss sua sponte a 14 habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate 15 notice of its intent to dismiss and an opportunity to respond. 260 F.3d at 1041-42. By issuing this 16 Order to Show Cause, the Court is affording Petitioner the notice required by the Ninth Circuit in 17 Herbst. 18 B. Limitation Period For Filing Petition For Writ Of Habeas Corpus 19 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 20 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus 21 filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); 22 Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). 23 The instant petition was filed on March 20, 2016, and thus, it is subject to the provisions of the 24 AEDPA. The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal 25 26 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) 27 reads: 28 (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 2 1 2 3 4 5 6 7 8 9 10 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, if the right has been newly 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. (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. 11 12 13 28 U.S.C. § 2244(d). In most cases, the limitation period begins running on the date that the petitioner’s direct 14 review became final. The AEDPA, however, is silent on how the one year limitation period affects 15 cases where direct review concluded before the enactment of the AEDPA. The Ninth Circuit has held 16 that if a petitioner whose review ended before the enactment of the AEDPA filed a habeas corpus 17 petition within one year of the AEDPA’s enactment, the Court should not dismiss the petition pursuant 18 to § 2244(d)(1). Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283,1286 (9th Cir.), cert. 19 denied, 118 S.Ct. 899 (1998); Calderon v. United States Dist. Court (Kelly), 127 F.3d 782, 784 (9th 20 Cir.), cert. denied, 118 S.Ct. 1395 (1998). In such circumstances, the limitations period would begin 21 to run on April 25, 1996. Patterson v. Stewart, 2001 WL 575465 (9th Cir. Ariz.). 22 Petitioner was sentenced to life without the possibility of parole for his November 3, 1989 23 conviction for first degree murder with special circumstances. (Doc. 1, p. 51). Petitioner appealed to 24 the California Court of Appeal, which affirmed the conviction on July 3, 1991. Petitioner did not file 25 a petition for review in the state supreme court and remittitur issued on October 7, 1991, thus 26 concluding direct review of his conviction. (Id.). Since his direct review concluded prior to the 27 enactment of the AEDPA, the one-year limitation period commenced on April 25, 1996 and expired 28 one year later, on April 24, 1997. 3 1 As mentioned, the instant petition was filed on March 20, 2016, almost 19 years after the date 2 the one-year period would have expired. Thus, unless Petitioner is entitled to statutory or equitable 3 tolling, the instant petition is untimely and should be dismissed. 4 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 5 Under the AEDPA, the statute of limitations is tolled during the time that a properly filed 6 application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. § 7 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules 8 governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531 9 U.S. 4, 8 (2000). An application is pending during the time that ‘a California petitioner completes a 10 full round of [state] collateral review,” so long as there is no unreasonable delay in the intervals 11 between a lower court decision and the filing of a petition in a higher court. Delhomme v. Ramirez, 12 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized by Waldrip v. Hall, 548 13 F. 3d 729 (9th Cir. 2008)(per curium)(internal quotation marks and citations omitted); see Evans v. 14 Chavis, 546 U.S. 189, 193-194 (2006); see Carey v. Saffold, 536 U.S. 214, 220, 222-226 (2002); see 15 also, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 16 Nevertheless, there are circumstances and periods of time when no statutory tolling is allowed. 17 For example, no statutory tolling is allowed for the period of time between finality of an appeal and 18 the filing of an application for post-conviction or other collateral review in state court, because no 19 state court application is “pending” during that time. Nino, 183 F.3d at 1006-1007; Raspberry v. 20 Garcia, 448 F.3d 1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling is allowed for the 21 period between finality of an appeal and the filing of a federal petition. Id. at 1007. In addition, the 22 limitation period is not tolled during the time that a federal habeas petition is pending. Duncan v. 23 Walker, 563 U.S. 167, 181-182 (2001); see also, Fail v. Hubbard, 315 F. 3d 1059, 1060 (9th Cir. 24 2001)(as amended on December 16, 2002). Further, a petitioner is not entitled to statutory tolling 25 where the limitation period has already run prior to filing a state habeas petition. Ferguson v. 26 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the 27 limitations period that has ended before the state petition was filed.”); Jiminez v. White, 276 F. 3d 28 478, 482 (9th Cir. 2001). Finally, a petitioner is not entitled to continuous tolling when the 4 1 petitioner’s later petition raises unrelated claims. See Gaston v. Palmer, 447 F.3d 1165, 1166 (9th Cir. 2 2006). 3 Petitioner alleges that he filed a state habeas petition in the California Supreme Court 4 challenging the imposition of various restitution fines at sentencing. (Doc. 1, p. 2). However, a 5 petitioner is not entitled to tolling where the limitations period has already run prior to filing a state 6 habeas petition. Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000); Jiminez v. Rice, 276 F.3d 478 7 (9th Cir. 2001); see Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)(same); Ferguson v. 8 Palmateer, 321 F.3d 820 (9th Cir. 2003)(“section 2244(d) does not permit the reinitiation of the 9 limitations period that has ended before the state petition was filed.”); Jackson v. Dormire, 180 F.3d 10 919, 920 (8th Cir. 1999) (petitioner fails to exhaust claims raised in state habeas corpus filed after 11 expiration of the one-year limitations period). Thus, as mentioned, the limitations period expired in 12 1997, almost twenty years before Petitioner filed his state habeas petition. Accordingly, he cannot 13 avail himself of the statutory tolling provisions of the AEDPA. 14 D. Equitable Tolling. 15 The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to equitable 16 tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 651-652 (2010); Calderon v. United 17 States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997). The limitation period is subject to equitable 18 tolling when “extraordinary circumstances beyond a prisoner’s control make it impossible to file the 19 petition on time.” Shannon v. Newland, 410 F. 3d 1083, 1089-1090 (9th Cir. 2005)(internal quotation 20 marks and citations omitted). “When external forces, rather than a petitioner’s lack of diligence, 21 account for the failure to file a timely claim, equitable tolling of the statute of limitations may be 22 appropriate.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). “Generally, a litigant seeking 23 equitable tolling bears the burden of establishing two elements: “(1) that he has been pursuing his 24 rights diligently, and (2) that some extraordinary circumstance stood in his way.” 25 at 651-652; Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807 (2005). “[T]he threshold 26 necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” 27 Miranda v. Castro, 292 F. 3d 1062, 1066 (9th Cir. 2002)(citation omitted). As a consequence, 28 “equitable tolling is unavailable in most cases.” Miles, 187 F. 3d at 1107. 5 Holland, 560 U.S. 1 Petitioner’s response is threefold: (1) he has mental, physical, and learning disabilities; (2) he 2 is unschooled in the law and only obtained the services of a “jailhouse lawyer” in 2015; and (3) he is 3 actually innocent because he had no intent to shoot the victim. 4 5 1. Mental and Physical Illness. Petitioner’s claim of mental and/or physical illness alone is insufficient to equitably toll the 6 limitations period. Although some courts have recognized mental illness as a basis for equitable 7 tolling of a federal statute of limitations, they have done so only where the mental "illness in fact 8 prevent[ed] the sufferer from managing his affairs and thus from understanding his legal rights and 9 acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.1996); see also, Nunnally v. 10 MacCausland, 996 F.2d 1, 6 (1st Cir.1993); United States v. Page, 1999 WL 1044829, at *1-2 (N.D.Ill. 11 Nov. 16, 1999); Decrosta v. Runyon, 1993 WL 117583, at *2-3 (N.D.N.Y. Apr. 14, 1993); Speiser v. 12 United States Dept. of Health & Human Services, 670 F.Supp. 380, 384 (D.D.C.1986); cf. Accardi v. 13 United States, 435 F.2d 1239, 1241 n. 2 (3rd Cir.1970) ("Insanity does not prevent a federal statute of 14 limitations from running."); Boos v. Runyon, 201 F.3d 178, 184 (2nd Cir.2000) ("The question of 15 whether a person is sufficiently mentally disabled to justify tolling of a limitation period is ... highly 16 case-specific."). 17 The Ninth Circuit has followed this rule in Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010), 18 holding that a petitioner has the burden of showing that his “mental impairment made it impossible to 19 meet the filing deadline under the totality of the circumstances, including reasonably available access 20 to assistance.” In Bills, the Ninth Circuit established the following two-part test to determine whether 21 equitable tolling should be permitted based on mental impairment: 22 23 24 25 26 27 28 (1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control by demonstrating that the impairment was so severe that either (a) Petitioner was unable rationally or factually to personally understand the need to timely file, or (b) Petitioner’s mental state rendered him unable personally to prepare a habeas petition and effectuation its filing. (2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance. 6 1 Bills, 628 F.3d at 1099-1100. Bills notes that, “to evaluate whether a petitioner is entitled to equitable 2 tolling, the district court must determine whether the petitioner’s mental impairment made it 3 impossible to timely file on his own.” Id. at 1100-1101. However, “[w]ith respect to the necessary 4 diligence, the petitioner must diligently seek assistance and exploit whatever assistance is reasonably 5 available.” Id. at 1101. Bills summarizes the relevant question as “Did the mental impairment cause 6 an untimely filing?” Id. at 1100 n. 3. 7 Apart from vague and highly generalized allegations of mental and physical illness, Petitioner 8 has provided no evidence whatsoever, in the form of medical reports, doctor’s evaluations, etc., that 9 would permit the Court to conclude that equitable tolling should apply. Instead, Petitioner makes 10 simply a vague assertion that he has mental and physical problems. Such assertions fall far short of 11 the Ninth Circuit’s requirements for entitlement to equitable tolling, especially in light of the fact that 12 Petitioner must account for essentially twenty years of equitable tolling. His allegations do not show 13 that, for that entire span of two decades, he was prevented from filing a federal habeas petition 14 because of mental and physical disabilities. 15 16 2. Ignorance of the Law Petitioner indicates that he is ignorant of the law and did not realize he could challenge the 17 sentence until he obtained the services of a jailhouse lawyer. Nevertheless, a petitioner’s claims of 18 ignorance of the law, lack of education, or illiteracy are not grounds for equitable tolling. Raspberry 19 v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see, e.g., Hughes v. Idaho State Bd. of Corrections, 800 20 F.2d 905, 909 (9th Cir.1986) (pro se prisoner's illiteracy and lack of knowledge of law unfortunate but 21 insufficient to establish cause); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999); Rose v. Dole, 945 22 F.2d 1331, 1335 (6th Cir.1991). Accordingly, Petitioner’s lack of knowledge of the law, a 23 circumstance shared with virtually all inmates and potential petitions, is not an extraordinary 24 circumstance meriting equitable tolling. 25 26 27 3. Actual Innocence Petitioner implies that he should be excepted from the effects of the one-year limitation period because he is actually innocent. In McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013), the 28 7 1 United States Supreme Court held that “actual innocence” could be an exception to the one-year 2 limitation bar in the AEDPA: We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House,2 or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actualinnocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S., at 329; see House, 547 U.S., at 538 (emphasizing that the Schlup standard is “demanding” and seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. Schlup, 513 U.S., at 332. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 McQuiggin, at 1928. The Supreme Court went on to explain that an “[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing, and, thus, “a court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of evidence [of actual innocence].” Id. at 1927, quoting Schlup, 513 U.S. at 332. See also Lee v. Lampert, 653 F.3d 929, 932-933 (9th Cir. 2011)(en banc)(“a credible claim of actual innocence constitutes an equitable exception to AEDPA’s limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits.” ) The “Schlup gateway,” however, may only be employed when a petitioner “falls within the narrow class of cases…implicating a fundamental miscarriage of justice. Schlup, 513 U.S. at 314-315; McQuiggin, at 1928. However, “[t]o ensure that the fundamental miscarriage of justice exception would remain ‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same time ensuring that the exception would extend relief to those who were truly deserving,” the Supreme Court explicitly limited the equitable exception to cases where a petitioner has made a showing of innocence. Schlup, 513 U.S. at 321. “The Supreme Court did not hold that a petitioner may invoke Schlup whenever he wants a trial do-over.” Lee, 653 F.3d at 946 (Kozinski, J., concurring.) 25 26 The rule announced in McQuiggin is not a type of equitable tolling, which provides for an extension of the time statutorily prescribed, but an equitable exception to § 2244(d)(1). McQuiggin at 27 28 2 Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995); House v. Bell, 547 U.S. 518, 126 S.Ct. 2064 (2006). 8 1 1928. Moreover, the Court noted that actual innocence, if proven, merely allows a federal court to 2 address the merits of a petitioner’s constitutional claims; the Court has yet to address whether “a 3 freestanding claim of actual innocence” provides a separate basis for granting habeas relief. 4 McQuiggin at 1928. Petitioner has failed to meet Schlup’s exacting standard. Petitioner alleges, quite simply, that 5 6 he did not intend to kill the victim. He does not deny killing the victim. (Doc. 1, p. 13). In short, 7 Petitioner is asking that this Court blindly accept his version of events over the evidence presented at 8 trial and considered by the jury, regarding his guilt or innocence. Petitioner’s meager allegation falls 9 far short of Schlup’s requirements, and fails to even come close to a prima facie showing of actual 10 innocence for purposes of avoiding the effects of the AEDPA’s one-year limitation period. ORDER 11 For the foregoing reasons, the Court HEREBY DIRECTS the Clerk of the Court to assign a 12 13 United States District Judge to this case. 14 RECOMMENDATION 15 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 16 DISMISSED as untimely. 17 This Findings and Recommendation is submitted to the United States District Court Judge 18 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 19 Local Rules of Practice for the United States District Court, Eastern District of California. Within 21 20 days after being served with a copy, any party may file written objections with the court and serve a 21 copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings 22 and Recommendation.” Replies to the objections shall be served and filed within 10 days (plus three 23 days if served by mail) after service of the objections. The Court will then review the Magistrate 24 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 25 /// 26 /// 27 /// 28 /// 9 1 2 The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: April 19, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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