-JFM (HC) Schrubb v. Cate, No. 2:2010cv01409 - Document 28 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 02/14/11 ORDERING petitioner's August 23, 2010 and November 15, 2010 motions to stay 14 , 23 are denied. Petitioner's motion to strike 25 is denied. Also, RECOMMENDING that respondent's motion to dismiss be granted. This action be dismissed with prejudice; and the court court decline to issue a certificate of appealability. MOTION to Dismiss 17 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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-JFM (HC) Schrubb v. Cate Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN RAY SCHRUBB, Petitioner, 11 12 13 14 15 16 No. 2:10-cv-1409 MCE JFM (HC) vs. MATTHEW CATE, Respondent. ORDER AND / FINDINGS AND RECOMMENDATIONS Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction on 18 charges of second degree robbery, conspiracy to commit second degree robbery, multiple counts 19 of assault with a semiautomatic firearm, unlawful taking of a vehicle, and evading an officer 20 with willful disregard. Petitioner was sentenced to an indeterminate state prison term of 304 21 years to life. See Lodgment (hereinafter “LD”) 1. Petitioner appealed his sentence. 22 This matter is before the court on petitioner’s request for stay and abeyance 23 pending exhaustion of state court remedies as to unexhausted claims, and on respondent’s 24 motion to dismiss the petition as untimely and as a mixed petition containing unexhausted 25 claims. Respondent opposes petitioner’s request to stay these proceedings, and petitioner 26 opposes respondent’s motion to dismiss. 1 Dockets.Justia.com FACTUAL AND PROCEDURAL BACKGROUND 1 On November 4, 2004, petitioner was convicted of multiple counts stemming 2 3 from a botched robbery of a Bank of America in Loomis, CA on March 17, 2003. LD 2 at 1-2. 4 In August 2003, petitioner’s Faretta motion was granted during trial and he represented himself 5 through the remainder of his criminal proceedings. Id. at 2. Petitioner was subsequently 6 sentenced to an indeterminate term of 304 years to life. See LD 1. In his direct appeal, petitioner challenged the trial court’s denial of his motion to 7 8 suppress his confession because it was involuntary and his motion to dismiss the charges against 9 him because of outrageous conduct by the staff at the jail in which he was held pending trial. LD 10 2 at 1. On December 8, 2005, the California Court of Appeal, Third Appellate District, affirmed 11 the judgment after concluding that the trial court properly denied both motions. Id. Petitioner appealed this decision to the California Supreme Court on January 10, 12 13 2006. LD 3. On February 22, 2006, the petition for review was summarily denied. LD 4. 14 Nearly two years later, on January 28, 2008, petitioner collaterally challenged his 15 conviction in Placer County Superior Court, raising the same claims as in his direct appeal. LD 16 5. This petition was denied on June 9, 2008 on the ground that it was untimely with citation to 17 In re Robbins, 18 Cal. 4th 770, 780 (1998). LD 6. On September 14, 2009, petitioner appealed the superior court denial of his 18 19 habeas petition. See LD 7. In his moving papers, petitioner raised seven claims not previously 20 raised: (1) the trial court improperly restricted the evidence petitioner was able to present during 21 trial; (2) Brady violation; (3) all elements of certain charged offenses not proven; (4) double 22 jeopardy; (5) illegal prior conviction used to enhance sentence and enhancement statutes were 23 unconstitutionally applied; and (6) petitioner’s sentence was disproportionate and was the result 24 of multiple punishments for the same crime. Id. On October 1, 2009, the petition was summarily denied by the state appellate 25 26 court. LD 8. 2 1 2 On April 26, 2010, petitioner appealed to the California Supreme Court. LD 9. On January 12, 2011, the petition was denied. See Doc. No. 26. 3 On May 6, 2010, during the pendency of the state habeas petitions, petitioner filed 4 the instant application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Here, petitioner 5 brings forth the following claims: (1) he was prevented from presenting a defense; (2) he was 6 denied access to exculpatory evidence; (3) there was insufficient evidence to convict him; (4) he 7 was subject to double jeopardy; (5) he was subjected to an illegal enhancement of his prison 8 sentence; (6) his sentence was enhanced on the basis of a prior conviction that was illegally 9 produced; (7) his sentence is disproportionate to other sentences meted out for the same or 10 similar conduct and is unconstitutionally excessive; and (8) his appellate counsel for was 11 ineffective for omitting issues on appeal. 12 On August 23, 2010, petitioner filed a motion to stay and abey. On September 7, 13 2010, respondent filed a motion to dismiss. On November 15, 2010, petitioner filed a second 14 motion to stay and an opposition to the motion to dismiss. On November 22, 2010, respondent 15 filed a reply. On December 8, 2010, petitioner filed a motion to strike respondent’s reply. 16 17 STANDARDS FOR A MOTION TO DISMISS Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to 18 dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 19 In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as 20 true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 21 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 22 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint 23 must contain more than “a formulaic recitation of the elements of a cause of action;” it must 24 contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not 26 necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim 3 1 is and the grounds upon which it rests.’” Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell 2 Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although the court previously issued a screening order that expressly stated that 3 4 plaintiff stated a cognizable claim against defendants, the court finds that this finding does not 5 foreclose defendants’ right to bring a motion to dismiss on the same grounds. See Teahan v. 6 Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007) (finding that the screening and dismissal 7 procedure under the Prison Litigation Reform Act “is cumulative of, not a substitute for, any 8 subsequent Rule 12(b)(6) motion that the defendant may choose to bring”). The court will 9 consider the merits of defendants’ motion to dismiss. DISCUSSION 10 11 12 1. Respondent’s Motion Because the instant petition was filed after April 24, 1996, the effective date of 13 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), AEDPA applies in this 14 proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); 15 Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 16 Under the AEDPA statute of limitations, a petition for writ of habeas corpus 17 generally must be filed within one year from “the date on which the judgment became final by 18 conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. 19 § 2244(d)(1)(A). The Ninth Circuit Court of Appeals has held that the “time for seeking direct 20 review” under 28 U.S.C. § 2244(d)(1)(A) includes the ninety-day period within which a 21 petitioner can file a petition for a writ of certiorari from the United States Supreme Court under 22 Supreme Court Rule 13, whether or not the petitioner actually files such a petition. Bowen v. 23 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 24 Here, petitioner’s direct review became final on February 22, 2006 when the 25 California Supreme Court denied petitioner’s appeal. Thus, the one-year limitations period 26 commenced ninety days later on May 23, 2006, providing petitioner until May 23, 2007 to file 4 1 his petition. Because petitioner did not file his petition for writ of habeas corpus in the federal 2 court until May 6, 2010, the undersigned finds that the petition is untimely. 3 Moreover, petitioner is not entitled to tolling. While the statute of limitations 4 may be tolled to account for a petitioner’s applications for post-conviction relief or collateral 5 review in the state courts, see 28 U.S.C. § 2244(d)(2), the period during which petitioner filed 6 state habeas petitions does not warrant tolling because petitioner’s collateral challenge was 7 denied as untimely in the state superior court with citation to In re Robbins, 18 Cal. 4th 770, 780 8 (1998), and then summarily denied by the California Court of Appeal and the California 9 Supreme Court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one 10 reasoned state judgment rejecting a federal claim, later unexplained orders upholding that 11 judgment or rejecting the same claim rest upon the same ground.”). Citation to Robbins in the 12 state court order was a “clear ruling” that the state petition was untimely and, hence, not entitled 13 to receive Section 2244(d)(2) tolling. See Thorson v. Ramirez Palmer, 479 F.3d 643, 645 (9th 14 Cir. 2007). 15 In his opposition, petitioner argues that equitable tolling should apply in this case 16 because he attempted to file his petition before the May 23, 2007 deadline, but was unable to do 17 so for reasons beyond his control. First, petitioner claims that he asked the prison staff to 18 summon him to the law library on May 22, 2007 (one day before the filing deadline) so that he 19 could copy and mail his 2,236-page state habeas petition, but was instead summoned on May 20, 20 2007 when petitioner claims his petition was not yet finalized. Petitioner then claims that the 21 next time he was allowed to use the law library was on June 12, 2010, when he handed his 22 petition over to the law library for copying. Opp’n, Ex. E. His photocopied writ was returned on 23 June 21, 2010. Opp’n, Ex. F. Unfortunately, petitioner noticed that fifty-three pages of the 24 petition had not been copied. See Opp’n, Ex. G. Therefore, he was forced to return those pages 25 for photocopying; the pages were finally returned to him on June 27, 2007. Id. 26 ///// 5 In the meantime, petitioner was informed that the law library was unable to mail 1 2 the petition due to its size. Opp’n at 4-5. Petitioner was advised to contact Receiving and 3 Release (“R&R”) and/or his counselor to assist him with mailing the petition. Id. Petitioner 4 contends the law library was capable of mailing legal documents, as they had done this for him 5 in the past, and that the refusal “to accept his writ for filing was because of a tenuous 6 relationship [petitioner] had with them.” Opp’n at 5. On June 27, 2007, petitioner sent a letter to 7 R&R seeking assistance to file his petition. Opp’n, Ex. H. In response, petitioner was informed 8 that R&R needed verification that the mailing was legal in nature, was advised to contact his 9 counselor to package the petition because of its size, and was further informed that petitioner did 10 not have any money, which meant that the petition needed to ship at state expense. Opp’n, Ex. I. 11 Petitioner sent a letter to his counselor on July 7, 2010 seeking assistance, but claims he never 12 received a response. Opp’n, Ex. J. Petitioner received verification that his documents were legal 13 on July 26, 2007. See Opp’n, Ex. N. As discussed infra, however, petitioner did not provide the 14 verification to R&R because he believed R&R needed verbal verification. See Opp’n, Ex. M. 15 Petitioner filed a 602 inmate appeal form1 on July 18, 2007 requesting that the 16 law library be required to mail his petition. Opp’n, Ex. M at 1-5. Petitioner’s appeal was denied 17 on August 3, 2007 at the informal level of review, and petitioner was advised that the law library 18 “cannot facilitate the mail out of 2,236 pages of documents.” Id. at 6. Petitioner’s appeal was 19 also denied on September 17, 2007 at the first formal level of review, and petitioner again 20 advised that the petition “is too large for mailing from the library.” Id. at 7. The reviewing 21 official noted that petitioner was provided with a paper copy of the verification that R&R needed 22 and that the law library staff gave the verification verbally to R&R, as well. Id. Petitioner’s 23 24 25 26 1 California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address an inmate’s claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has received a “Director’s Level Decision,” or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. 6 1 appeal was then denied on November 15, 2007 at the second level of review, and petitioner was 2 informed that he must give the note of verification provided to him by the law library staff to 3 R&R, which he had not yet done. Id. He was also informed that he needed to submit a request 4 to have his petition mailed through the “bulk” mail process. See id. Finally, it was noted that 5 petitioner still had not provided R&R with written verification that his documents were legal 6 and, furthermore, that petitioner “had not attempted to contact the courts to request an extension 7 to his filing date[] and was presently ‘just holding’ the documents.” Id at 51. In addition to the difficulties petitioner was experiencing with mailing his 8 9 petition, petitioner claims that as a result of a fight with a cell-mate on November 19, 2007, he 10 was forced to rewrite many pages of his petition because they were covered in blood. Opp’n at 11 5-6. A habeas petitioner is entitled to equitable tolling of the limitation period “only 12 13 when ‘extraordinary circumstances beyond a prisoner’s control make it impossible to file a 14 petition on time’ and ‘the extraordinary circumstances were the cause of his untimeliness.’ 15 Grounds for equitable tolling under § 2244(d) are ‘highly fact-dependent.’” Laws v. Lamarque, 16 351 F.3d 919, 922 (9th Cir. 2003) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) 17 and Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc)). 18 Petitioner’s reasons for filing an untimely petition do not merit equitable tolling in 19 this case. Petitioner’s contention that the law library was improperly refusing to mail his petition 20 is unsupported by the record. Instead, petitioner was informed repeatedly that the law library 21 was unable to mail his petition due to its size and that he needed to comply with certain 22 procedural requirements to mail the petition.2 Further, petitioner’s argument that he believed 23 R&R needed verbal verification of the legal status of his petition is belied by his own 24 25 26 2 Review of the documents filed in support of petitioner’s opposition reveals that petitioner was capable of mailing other legal documents during the time frame at issue here. See Opp’n at 5457. 7 1 attachments, which evidence that he had been repeatedly advised to provide written verification 2 to R&R. Finally, diligence would have required petitioner to seek an extension of time from the 3 courts to file his petition. Instead, petitioner’s earliest filing in his state collateral action was 4 January 28, 2008, nearly eight months after the AEDPA limitations period ran. In sum, much 5 more is required to warrant equitable tolling. Accordingly, respondent’s motion to dismiss the petition on timeliness grounds 6 7 should be granted. The court need not address respondent’s arguments regarding exhaustion 8 given the court’s recommendation that the petition be dismissed as time-barred. 9 2. 10 Miscellaneous A. Motions to Stay 11 Petitioner filed two motions to stay pending resolution of his collateral challenge 12 in state court. Because the California Supreme Court summarily denied the petition on January 13 12, 2011, these requests will be denied as moot. 14 15 B. Motion to Strike On December 8, 2010, petitioner filed a motion to strike respondent’s reply on the 16 ground that respondent requires leave of court to file a reply. Contrary to petitioner’s 17 understanding, leave of court is not required by respondent prior to filing a reply. Accordingly, 18 this motion will be denied. 19 For all of the foregoing reasons, this action should be dismissed. Pursuant to Rule 20 11 of the Rules Governing Section 2254 Cases in the United States District Courts, “[t]he district 21 court must issue or a deny a certificate of appealability when it enters a final order adverse to the 22 applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability may issue under 28 23 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 24 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 25 appealability indicating which issues satisfy the required showing or must state the reasons why 26 such a certificate should not issue. Fed. R. App. P. 22(b). 8 Where, as here, the petition is dismissed on procedural grounds, a certificate of 1 2 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 3 debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of 4 reason would find it debatable whether the petition states a valid claim of the denial of a 5 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 6 McDaniel, 529 U.S. 473, 484 (2000)). After careful review of the entire record herein, this court finds that petitioner has 7 8 not satisfied the first requirement for issuance of a certificate of appealability in this case. 9 Specifically, there is no showing that jurists of reason would find it debatable whether this action 10 is barred by the statute of limitations and/or is unexhausted. Accordingly, the court should not 11 issue a certificate of appealability. 12 Therefore, IT IS HEREBY ORDERED that: 13 1. Petitioner’s August 23, 2010 and November 15, 2010 motions to stay are 14 denied; 15 2. Petitioner’s motion to strike is denied; 16 IT IS HEREBY RECOMMENDED that: 17 1. Respondent’s motion to dismiss be granted; 18 2. This action be dismissed with prejudice, and 19 3. The court decline to issue a certificate of appealability 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 22 days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be filed and served within fourteen days after service of the objections. The 26 ///// 9 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: February 14, 2011. 4 5 6 7 /014;schr1409.mtd 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10
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