(HC)Brown v. U.S. District Court, No. 2:2009cv03241 - Document 23 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/08/10 recommending that respondent's 05/27/10 motion to dismiss 18 be granted; and this action be closed. MOTION to DISMISS 18 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
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(HC)Brown v. U.S. District Court Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARLOWE BROWN, 11 12 13 14 15 16 Petitioner, No. CIV S-09-3241 JAM DAD P vs. RICK HILL, Acting Warden, Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner, a state prisoner proceeding pro se, has filed a third amended petition 17 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 2, 2010, the undersigned 18 ordered respondent to file and serve a response to the petition. On May 27, 2010, respondent 19 filed the pending motion to dismiss, arguing that petitioner’s habeas petition is time-barred under 20 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Petitioner has filed an 21 opposition to the motion, and respondent has filed a reply. 22 BACKGROUND 23 On June 10, 2004, a Sacramento County Superior Court jury found petitioner 24 guilty of attempted murder, infliction of corporal injury upon a cohabitant, and assault with a 25 deadly weapon. The trial court found that petitioner had suffered two prior serious felony 26 convictions and sentenced him to a term of twenty-five years to life plus sixteen years in state 1 Dockets.Justia.com 1 prison. On July 6, 2005, the California Court of Appeal for the Third Appellate District affirmed 2 petitioner’s judgment of conviction. On September 21, 2005, the California Supreme Court 3 denied review. (Resp’t’s Lodged Docs. 1-4.) 4 Petitioner subsequently filed seven petitions seeking habeas corpus relief in state 5 court. Under the mailbox rule1, on December 28, 2005, petitioner filed a petition for writ of 6 habeas corpus in the Sacramento County Superior Court which was denied on February 28, 2006. 7 On April 22, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of 8 Appeal for the Third Appellate District which was denied on May 11, 2006. On July 2, 2006, 9 petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was 10 denied on February 7, 2007. On February 20, 2008, petitioner filed a second petition for writ of 11 habeas corpus in the California Supreme Court which was denied on July 30, 2008. On 12 December 1, 2008, petitioner filed a second petition for writ of habeas corpus in the Sacramento 13 County Superior Court which was denied on January 6, 2009. On February 17, 2009, petitioner 14 filed a third petition for writ of habeas corpus in the Sacramento County Superior Court which 15 was denied on April 8, 2009. Finally, on April 27, 2009, petitioner filed a third petition for writ 16 of habeas corpus in the California Supreme Court which was denied on September 9, 2009. 17 (Resp’t’s Lodged Docs. 5-18.) 18 On November 18, 2009, petitioner commenced this action by filing a federal 19 petition for writ of habeas corpus with this court. The court dismissed the petition with leave to 20 amend due to his failure to name a proper respondent. Although petitioner filed an amended 21 petition, the court subsequently dismissed it for failure to name the proper respondent and also 22 dismissed petitioner’s second amended petition due to his failure to clearly state the nature of his 23 claims, again with leave to file a third amended petition. On March 18, 2010, petitioner filed his 24 third amended petition now pending before the court. 25 26 1 See Houston v. Lack, 487 U.S. 266, 276 (1988). 2 1 2 RESPONDENT’S MOTION TO DISMISS I. Respondent’s Motion 3 Respondent moves to dismiss the pending petition, arguing that it is time-barred. 4 Specifically, respondent argues that on September 21, 2005, the California Supreme Court denied 5 petitioner’s petition for review, causing his judgment of conviction to become “final” on 6 December 20, 2005, after the time for filing a petition for writ of certiorari expired. Respondent 7 argues that the one-year statute of limitations for the filing a federal habeas petition began to run 8 the following day, on December 21, 2005, and expired one year later on December 20, 2006. 9 (Resp’t’s Mot. to Dismiss at 4.) 10 Respondent acknowledges that the proper filing of a state post-conviction 11 application challenging a judgment of conviction tolls the one-year statute of limitations period. 12 Respondent concedes that petitioner is entitled to tolling for the pendency of this first through 13 third state habeas petitions. However, respondent argues that even granting petitioner 406 days 14 of tolling, the statute of limitations for the filing of his federal habeas petition expired on January 15 30, 2008. Petitioner did not file his federal habeas petition until November 19, 2009. 16 Accordingly, respondent maintains that the petition is untimely and must be dismissed with 17 prejudice. (Resp’t’s Mot. to Dismiss at 4-5.) 18 Respondent acknowledges that petitioner filed four subsequent habeas petitions in 19 state court. However, respondent argues that petitioner is not entitled to tolling for the period of 20 time his fourth, fifth, sixth, and seventh petitions were pending in the state courts because, inter 21 alia, the Sacramento County Superior Court and the California Supreme Court denied those 22 petitions as untimely. Respondent contends that untimely petitions submitted in state court are 23 not “properly filed,” and therefore cannot serve to toll the AEDPA statute of limitations period. 24 (Resp’t’s Mot. to Dismiss at 5.) 25 ///// 26 ///// 3 1 2 II. Petitioner’s Opposition In opposition to respondent’s motion to dismiss, petitioner argues that he has been 3 denied his constitutional rights and is entitled to habeas relief on the claims in his petition. 4 Petitioner reiterates his substantive claims that he was denied effective assistance of counsel in 5 state court and that he was not allowed to testify at trial. (Pet’r’s Opp’n to Resp’t’s Mot. to 6 Dismiss at 1-3.) 7 III. Respondent’s Reply 8 In reply, respondent argues that petitioner’s opposition is largely unresponsive to 9 the pending motion to dismiss. In this regard, respondent contends that petitioner does not 10 necessarily disagree that the court is precluded from considering the merits of his petition. 11 Instead, petitioner merely re-argues the merits of his claims. For the reasons discussed above, 12 respondent argues that petitioner’s petition is untimely and should be dismissed with prejudice. 13 (Resp’t’s Reply at 1-3.) 14 15 16 17 18 19 ANALYSIS I. The AEDPA Statute of Limitations On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision: (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 – 20 21 (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; 22 23 24 25 26 (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 4 1 applicable to cases on collateral review; or 2 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 3 4 (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. 5 6 7 The one-year AEDPA statute of limitations applies to all federal habeas corpus petitions filed 8 after the statute was enacted and therefore applies to the pending petition. See Lindh v. Murphy, 9 521 U.S. 320, 322-23 (1997). 10 II. Application of § 2244(d)(1)(A) 11 As noted above, on June 10, 2004, a Sacramento County Superior Court jury 12 found petitioner guilty of attempted murder, infliction of corporal injury upon a cohabitant, and 13 assault with a deadly weapon. The trial court also found that petitioner had two prior serious 14 felony convictions and sentenced him to a term of twenty-five years to life plus sixteen years in 15 state prison. On July 6, 2005, the California Court of Appeal for the Third Appellate District 16 affirmed petitioner’s judgment of conviction. On September 21, 2005, the California Supreme 17 Court denied review. (Resp’t’s Lodged Docs. 1-4.) 18 For purposes of federal habeas review, petitioner’s conviction became final on 19 December 20, 2005, ninety days after the California Supreme Court denied his petition for 20 review. See Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007); Bowen v. Roe, 188 F.3d 21 1157, 1158-59 (9th Cir. 1999). The AEDPA statute of limitations period began to run the 22 following day, on December 21, 2005, and expired one year later on December 20, 2006. Even 23 with application of the mailbox rule, petitioner did not file his original federal habeas petition 24 with this court until November 18, 2009. Accordingly, petitioner’s federal petition for writ of 25 habeas corpus is untimely unless he is entitled to the benefit of tolling. 26 ///// 5 1 2 III. Application of § 2244(d)(2) “The time during which a properly filed application for State post-conviction or 3 other collateral review with respect to the pertinent judgment or claim is pending shall not be 4 counted” toward the AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of 5 limitations is not tolled during the interval between the date on which a judgment becomes final 6 and the date on which the petitioner files his first state collateral challenge because there is no 7 case “pending.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once a petitioner 8 commences state collateral proceedings, a state habeas petition is “pending” during one full 9 round of review in the state courts, including the time between a lower court decision and the 10 filing of a new petition in a higher court, as long as the intervals between the filing of those 11 petitions are “reasonable.” Carey v. Saffold, 536 U.S. 214, 222-24 (2002). 12 In this case, petitioner filed seven petitions seeking habeas corpus relief in state 13 court. Even assuming, as respondent concedes, that petitioner is entitled to tolling for the time 14 that his first through third habeas petitions were pending before the Sacramento County Superior 15 Court, the California Court of Appeal and the California Supreme Court, petitioner is not entitled 16 to tolling for the subsequent period of time during which his fourth, fifth, sixth, and seventh state 17 habeas petitions were pending because the state courts denied those petitions as untimely with 18 specific citation to the decision in In re Robbins, 18 Cal. 4th 770, 780 (1998) along with other 19 authority. (Resp’t’s Lodged Docs. 12, 14, 16 & 18.) See White v. Martel, 601 F.3d 882, 884 20 (9th Cir. 2010) (“tolling under section 2244(d)(2) is unavailable where a state habeas petition is 21 deemed untimely under California’s timeliness standards”), cert. denied, __ U.S. __, 2010 WL 22 2998204 (U.S. Oct. 4, 2010); Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (a state 23 habeas corpus petition denied with a citation to “the very page of Robbins that sets forth ‘the 24 basic analytical framework’ governing California’s timeliness determinations in habeas corpus 25 proceedings” is a clear ruling that the state petition was untimely and not properly filed for 26 purposes of statutory tolling); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005) (habeas 6 1 petitioner not entitled to statutory tolling if “it is clear that the [state] court was denying [the] 2 petition as untimely”), amended by 439 F.3d 993 (9th Cir. 2006). During the time petitioner’s 3 untimely fourth, fifth, sixth, and seventh state habeas petitions were pending, more than a year 4 elapsed. Accordingly, by the time petitioner filed his original federal habeas petition on 5 November 18, 2009, the AEDPA statute of limitations for doing so had long-since expired, 6 rendering his federal habeas petition time-barred. 7 CONCLUSION 8 Accordingly, IT IS HEREBY RECOMMENDED that: 9 1. Respondent’s May 27, 2010 motion to dismiss (Doc. No. 18) be granted; and 10 2. This action be closed. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 13 one days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served and filed within fourteen days after service of the objections. The parties are 17 advised that failure to file objections within the specified time may waive the right to appeal the 18 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: October 8, 2010. 20 21 22 23 DAD:9 brow3241.157 24 25 26 7
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