-GGH (HC) Stone v Martel, et al.,, No. 2:2010cv03454 - Document 61 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/17/2011 RECOMMENDING that respondent's 36 motion to dismiss be granted; the 39 5/5/11 complaint be construed as a motion to dismiss the underlying criminal conviction, and, so construed, be denied; and all other 46 , 48 , 56 , 58 motions be denied as moot. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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-GGH (HC) Stone v Martel, et al., Doc. 61 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 AARON P. STONE, Petitioner, 10 11 12 13 vs. M. MARTEL, et al., Respondents. FINDINGS and RECOMMENDATIONS / 14 15 No. CIV S-10-3454 KJM GGH P Petitioner is a state prisoner proceeding pro se with an application for a writ of 16 habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, 17 arguing that it is untimely, or in the alternative, that the claims raised are not exhausted. 18 Petitioner has opposed the motion, and has additionally filed several other motions. For the 19 reasons outlined below, the undersigned recommends that the motion to dismiss be granted, and 20 that the remaining motions be denied as moot. 21 BACKGROUND 22 On November 14, 2006, petitioner was convicted by jury of six counts of violation 23 of California Penal Code § 288(a), Lewd Acts with a Child Under 14, and was subsequently 24 sentenced to a term of eighteen years on the convictions. The sentence consisted of: (1) an eight 25 year sentence for one of the counts, and (2) five consecutive, middle term sentences of 2 years 26 1 Dockets.Justia.com 1 each on the remaining five counts. On July 31, 2008, the Court of Appeals, Third Appellate 2 District, overturned the conviction in part, finding insufficient evidence to support the 3 convictions, and modified the sentence to eliminate the corresponding consecutive two year term 4 on the overturned court. Lodged Doc. No. 1, at p. 12 (“The sentence is modified to eliminate the 5 consecutive term imposed on count six. The trial court is directed to amend the abstract of 6 judgment to reflect the foregoing....As so modified, the judgment is affirmed.”) In accordance 7 with the Court of Appeal’s order, on November 28, 2008, the trial court entered a new sentence 8 for 16 years. See Doc. No. 1, p. 80.1 On September 8, 2008, petitioner filed a petition for review in the California 9 10 Supreme Court. His petition raised the following questions: (1) whether petitioner’s Fourteenth 11 Amendment due process rights were violated by the trial court’s admission of evidence of 12 defendant’s prior bad acts; (2) whether the trial court’s imposition of an upper-term sentence 13 violated petitioner’s Fifth, Sixth, and Fourteenth Amendment rights, since the trial court, rather 14 than a jury, had made the findings underlying the factors relied upon by the trial court in 15 imposing the upper-term sentence; and (3) whether the trial court erred in sentencing petitioner to 16 consecutive terms of imprisonment. See Lodged Doc. No. 2. On October 16, 2008, the Supreme 17 Court denied review in a summary order which did not cite to any authority. See Lodged Doc. 18 No. 3. A review of the record reflects that petitioner has not filed any other challenges in the 19 state Supreme Court. See Doc. No. 36, p. 6. 20 On January 14, 2009, the time for petitioner to file a petition for writ of certoirari 21 in the United States Supreme Court expired. See Sup. Ct. R. 13. A review of the record reflects 22 that petitioner did not file any petitions with the United States Supreme Court. 23 \\\\ 24 25 26 1 Citations are to page numbers assigned by the Court’s CM/ECF system. 2 1 In the meantime, petitioner sought collateral relief in the Superior Court and the 2 Court of Appeals. The record before this court reflects that, between 2007 and 2010, petitioner 3 filed more than twenty petitions or motions attacking the criminal judgment. A brief review of these pleadings is necessary to determine the respondent’s 4 5 motion: (1) 6 On January 17, 2007,2 petitioner filed a petition for writ of habeas corpus 7 in the Court of Appeal for the State of California, Third Appellate District 8 (docket no. C054619). See Lodged Doc. No. 52. Petitioner alleged, 9 among other things, that the evidence was insufficient to support his 10 conviction, and that his trial counsel was ineffective. Id. The Court of 11 Appeal denied the petition on January 25, 2007, citing In re Hillery, 202 12 Cal. App. 2d 293, 294 (1962) (petitioners should first seek habeas relief in 13 superior courts) and In re Harris, 5 Cal. 4th 813, 826-27 (1993) (habeas 14 may not be employed as a substitute for an appeal). See Lodged Doc. No. 15 53. (2) 16 On May 3, 2007, petitioner filed a petition for writ of habeas corpus in 17 Sacramento County Superior Court (docket no. 07F04643). See Lodged 18 Doc. No. 4. Petitioner alleged, among other things, that the evidence 19 adduced at trial was insufficient to support his convictions. Petitioner also 20 noted that he had a pending appeal in the Court of Appeal. On May 30, 21 2007, the Superior Court dismissed the petition, noting that it was without 22 23 2 25 Under Houston v. Lack, a pleading is deemed filed when it is delivered to prison officials for forwarding to the court. See 487 U.S. 266, 276, 108 S. Ct. 2379 (1988); see also Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Where petitioner was proceeding pro se and attached a signed, dated declaration of mailing to his filed pleading, the undersigned has used the service date as the filing date. 26 3 24 1 authority to proceed on the writ petition for any error which was or might 2 have been presented to the appellate court. See Lodged Doc. No. 5. 3 (3) On June 13, 2007, petitioner filed a petition for writ of habeas corpus in 4 Sacramento County Superior Court (docket no. 07F05632). See Lodged 5 Doc. No. 6. Petitioner alleged, among other things, that the evidence at 6 trial was insufficient to support his convictions and that the victim’s 7 testimony was not credible. On July 30, 2007, the Superior Court, noting 8 that petitioner’s appeal was still pending, denied the petition “for the same 9 reason his earlier petition was denied — while the appeal is pending, this 10 court lacks authority to entertain any claim which was, or should have 11 been, presented to the Court of Appeal.” See Lodged Doc. No. 7. 12 (4) On June 18, 2007, petitioner filed a petition for writ of habeas corpus in 13 Sacramento County Superior Court (docket no. 07F06036). See Lodged 14 Doc. No. 8. Petitioner alleged, among other things, that his counsel was 15 incompetent and that his pre-trial bail amount was too high. On August 8, 16 2007, the Superior Court denied the petition, finding that petitioner failed 17 to establish a prima facie showing on either the counsel or bail claims. 18 See Lodged Doc. No. 9. (A third claim was dismissed because the direct 19 appeal was still pending.) 20 (5) On July 31, 2008, the Court of Appeal affirmed the judgment against 21 petitioner, except as to Count 6, which was reversed for insufficient 22 evidence. On or about November 24, 2008, the trial court entered its 23 amended sentence. 24 25 26 (6) On September 8, 2008, petitioner filed a petition for review in the California Supreme Court. (Docket Number S166573), (see Lodged Doc. 4 No. 2) which was denied on October 16, 2008. See Lodged Doc. No. 3. 1 2 (7) On December 17, 2008, petitioner filed a petition for writ of habeas corpus 3 in Sacramento County Superior Court (docket no. 08F10306). See Lodged 4 Doc. No. 10. Among other things, petitioner alleged that the trial court 5 abused its discretion in not sentencing petitioner to probation, and in 6 allowing testimony regarding incidents of domestic violence between 7 petitioner and the victim’s mother. On February 5, 2009, the Superior 8 Court found that this petition was successive, because the third petition 9 challenging the judgment, Case No. 07F06036, was denied on its merits. 10 See Lodged Doc. No. 11. The Superior Court found that each of 11 petitioner’s claims were procedurally barred, and, in the alternative, that 12 petitioner failed to make a prima facie showing for relief. 13 (8) On March 12, 2009, petitioner filed a petition for writ of habeas corpus in 14 the Court of Appeal, Third Appellate District (docket no. C061287). See 15 Lodged Doc. No. 54. Petitioner argued that the Superior Court erred in 16 finding his most recent habeas petition successive because the Superior 17 Court had lacked jurisdiction to review his prior habeas petitions, filed 18 while his direct appeal was still pending. He additionally argued, among 19 other things, that his sentence was unconstitutional because the trial court 20 failed to sentence him to probation when he was eligible for it. On April 21 2, 2009, the Court of Appeal denied the petition as successive, citing 22 People v. Kim, 45 Cal. 4th 1078, 1101 (2009) (piecemeal presentation of 23 known claims is prohibited) and In re Clark, 5 Cal. 4th 750, 777 (1993) 24 (same). See Lodged Doc. No. 55. 25 26 (9) On April 13, 2009, petitioner filed a petition for writ of habeas corpus in 5 1 Sacramento County Superior Court (docket no. 09F03042). See Lodged 2 Doc. No. 12. Petitioner alleged that the Superior Court’s three prior 3 decisions, denying his prior habeas petitions on the ground that his appeal 4 was pending, were void judgments, and asked that the Superior Court 5 “clarify this matter regarding any procedural bar....” Petitioner 6 additionally argued that the trial court abused its discretion in not 7 sentencing petitioner to probation, and that his trial counsel was 8 ineffective. On May 28, 2009, the Superior Court denied the petition, 9 finding that it was his fifth challenging the criminal judgment and that it 10 was successive. See Lodged Doc. No. 13. The Superior Court 11 additionally found that there was no merit in petitioner’s sentencing or 12 counsel claims. 13 (10) On June 12, 2009, petitioner filed a petition for writ of habeas corpus in 14 the Court of Appeal, Third Appellate District (docket no. C062079). See 15 Lodged Doc. No. 56. Petitioner alleged that the trial court “acted in excess 16 of its jurisdiction,” and asks to be re-sentenced. He claims that he only 17 became aware of the grounds for re-sentencing after the trial court denied 18 his first three petitions. On June 18, 2009, the Court of Appeal denied the 19 petition as successive, citing to In re Clark, supra. See Lodged Doc. No. 20 57. 21 (11) On July 15, 2009 and July 21, 2009, petitioner filed motions for 22 modification of his sentence in his original criminal case. See Lodged 23 Doc. Nos. 14 and 15. Each motion was a one-page form. Petitioner did 24 not give any grounds in support of the application. The motions were 25 denied in minute orders by Judge Savage on July 21, 2009 and on August 26 6 4, 2009. See Lodged Doc. Nos. 16 and 17. 1 2 (12) On August 28, 2009, petitioner filed a petition for writ of mandate or 3 prohibition with the Court of Appeal, Third Appellate District (docket no. 4 C062771), seeking to overturn his sentence because, he argued, the trial 5 court unconstitutionally enhanced his sentence in violation of Cunningham 6 v. California, 127 S. Ct. 856, 549 U.S. 270 (2007). See Lodged Doc. No. 7 58. He again argues that the trial court abused its discretion in not 8 sentencing him to probation. On September 3, 2009, the Court of Appeal 9 denied the petition. See Lodged Doc. No. 59. 10 (13) On September 24, 2009, petitioner filed a petition for writ of mandate or 11 prohibition with the Court of Appeal, Third Appellate District (docket no. 12 C063009), raising again the Cunningham sentencing argument he had 13 raised in his August 28, 2009 petition. See Lodged Doc. No. 60. On 14 October 8, 2009, the Court of Appeal denied the petition. See Lodged 15 Doc. No. 61. 16 (14) On October 13, 2009, petitioner filed a petition for writ of mandamus in 17 the Court of Appeal, Third Appellate District (docket no. C063172), 18 alleging errors in his original sentence, and in his amended sentence. See 19 Lodged Doc. No. 62. In particular, petitioner claimed that he was not 20 present at his re-sentencing hearing, and that his sentence violated 21 Cunningham, supra. On November 12, 2009, the Court of Appeal denied 22 the petition. See Lodged Doc. No. 63. 23 (15) On December 22, 2009, petitioner filed a petition for writ of mandate or 24 prohibition with the Sacramento County Superior Court (docket number 25 34-2009-80000409), alleging that his original sentence and amended 26 7 1 sentence were illegal because, among other things, the record does not 2 support an upper-term sentence. Petitioner also argues that his due process 3 rights were violated because he was not present at the re-sentencing 4 hearing. See Lodged Doc. No. 18. The Superior Court construed the 5 mandamus as a habeas petition (see Lodged Doc. No. 19), and, on March 6 2, 2010, denied it (see Lodged Doc. No. 20), finding it successive and 7 untimely, and additionally finding no merit to the claims. In particular, the 8 Superior Court noted that there was no Cunningham error, because 9 petitioner’s prior convictions were sufficient “aggravating factors” in support of an upper-term sentence. 10 11 (16) On March 15, 2010, petitioner filed a petition for writ of habeas corpus in 12 the Sacramento County Superior Court (docket no. 10F01858). See 13 Lodged Doc. No. 21. Petitioner had initiated an administrative proceeding 14 at his prison, claiming that his sentence was not valid and asking the 15 prison to recall the sentence. The prison denied his claims, explaining that 16 the records reflected that he was sentenced legally. On April 19, 2010, the 17 Superior Court denied petitioner’s petition, which it described as an effort 18 by petitioner to obtain “a court order, on habeas corpus, that the 19 Department file with the court a recommendation for recall of the 20 sentence......because [petitioner] is not sentenced by the court or his 21 sentence is unlawful. This claim is utterly meritless.” See Lodged Doc. 22 No. 22. 23 (17) On April 6, 2010, petitioner filed a petition for writ of habeas corpus in the 24 Amador County Superior Court (docket no. 10-HC-1259), alleging that the 25 trial court abused its discretion in not sentencing him to probation, and 26 8 1 also violated his due process rights in not having him present during re- 2 sentencing. See Lodged Doc. No. 23. On April 23, 2010, Amador County 3 Superior Court transferred the petition to Sacramento County (see Lodged 4 Doc. Nos. 24, 25, 26). 5 (18) On April 12, 2010, petitioner filed a petition for writ of habeas corpus in 6 the Amador County Superior Court (docket no. 10-HC-1262), alleging, 7 among other things, that his sentence is illegal under Cunningham and that 8 he should have been sentenced to probation. See Lodged Doc. No. 27. On 9 April 26, 2010, Amador County transferred the petition to Sacramento County. See Lodged Doc. Nos. 28, 29, 30, 31. 10 11 (19) On May 17, 2010, petitioner filed a letter addressed to Judge Kenny of the 12 Sacramento County Superior Court, which appears to seek reconsideration 13 of the court’s March 2, 2010 order. See Lodged Doc. No. 34. Petitioner 14 wrote that he addressed his motion to Judge Kenny, since Judge Kenny 15 had construed petitioner’s December 22, 2009 mandamus petition as one 16 for a writ of habeas corpus. 17 (20) On May 17, 2010, the Sacramento County Superior Court issued an order 18 denying the May 17, 2010 motion for reconsideration, as well as the two 19 petitions transferred from Amador County. The trial court noted: 20 21 22 23 As petitioner was warned in the court’s denial order [dated March 2, 2010], petitioner is now engaging in a gross abuse of the writ process that is now progressing to a new stage in which petitioner is seeking relief from other trial courts from his judgment from this court. That petitioner cannot do. As petitioner is raising no new issue and has been repeatedly turned down in his requests for probation and modification of sentence, his is grossly abusing the writ process. 24 25 26 Lodged Doc. No. 35. 9 1 (21) On June 8, 2010, petitioner filed a petition for writ of habeas corpus with 2 the Amador County Superior Court (docket no. 10-HC-1293), alleging that 3 the warden of Mule Creek State Prison had unlawfully accepted and 4 surrendered petitioner into custody because petitioner’s commitment order 5 is not authorized by any provisions of law. See Lodged Doc. No. 37. 6 Petitioner additionally moved the Amador County Court that it retain 7 jurisdiction over the petition since the Amador court had previously 8 transferred prior petitions to Sacramento County, but that Sacramento had 9 “defaulted.” On June 24, 2010, Amador County Judge Harlan denied the 10 petition for failure to establish a prima facie case for relief, citing In re 11 Duvall, 9 Cal. 4th 464, 474-75 (1995). See Lodged Doc. No. 38. 12 (22) On June 28, 2010, petitioner filed a petition for writ of habeas corpus in 13 Sacramento County Superior Court (docket no. 10F04420), alleging that 14 Warden Michael Martel had unlawfully accepted and surrendered 15 petitioner into custody. See Lodged Doc. No. 41. On July 19, 2010, 16 Judge Roman of the Sacramento County Superior Court denied the 17 petition, finding that the petition was untimely and successive. The 18 Sacramento court noted that this was petitioner’s ninth habeas petition 19 challenging his criminal judgment, adding: 20 21 22 23 24 25 26 [g]enerally, a defendant convicted of a felony has but one opportunity to bring a habeas corpus petition before a California court. Once that opportunity has been exhausted, future claims on habeas will not be cognizable at all, unless the claims meet the Robbins/Clark bar. In the absence of an extraordinary reason for not bringing a successive claim in an earlier petition, it is a gross abuse of the writ process to file endless, unsubstantiated, frivolous, piecemeal new petitions, such as this one, with this court that are barred under Robbins/Clark. Lodged Doc. No. 42. 10 1 (23) On July 12, 2010, petitioner filed a petition for writ of mandate or 2 prohibition in Amador County Superior Court (docket no. 10cv6782), 3 alleging that Sacramento County Judge Kenny had previously granted his 4 prior petition for writ of mandamus. See Lodged Doc. No. 43. He 5 additionally argued that Amador County’s prior transfer orders were 6 actually orders granting habeas relief. Petitioner additionally argued that 7 his sentence was illegal. On August 5, 2010, Amador County deemed the 8 petition to be one for habeas relief (see Lodged Doc. No. 44), and, on 9 August 24, 2010, denied it for failure to state a prima facie case for relief. See Lodged Doc. No. 50. 10 11 (24) On July 14, 2010, petitioner filed a writ of mandate or prohibition in 12 Sacramento County Superior Court (docket no. 10F05222). See Lodged 13 Doc. No. 45. The petition is identical to the one filed in Amador County 14 on July 12, 2010. On September 13, 2010, the Sacramento County 15 Superior Court denied the petition. See Lodged Doc. No. 46. 16 (25) On July 21, 2010, petitioner filed a petition for writ of mandate or 17 prohibition in the Court of Appeal, Third Appellate District (docket no. 18 C065586), also identical to the one filed on July 12, 2010 in Amador 19 County. See Lodged Doc. No. 64. On July 29, 2010, the Court of Appeal 20 denied the petition. See Lodged Doc. No. 65. 21 (26) On December 27, 2010, petitioner filed in this court a Complaint under the 22 Civil Rights Act, 42 U.S.C. § 1983, against Allison Dunham, from the 23 Sacramento District Attorney’s Office, and M. Martel, Warden of Mule 24 Creek State Prison. See Doc. No. 1. On January 10, 2011, this court 25 ordered that the complaint be construed as a petition for writ of habeas 26 11 1 corpus filed pursuant to 28 U.S.C. § 2254. See Doc. No. 6. On May 11, 2 2011, respondents moved to dismiss the petition. See Doc. No. 36. It is 3 this motion which is currently before the court. 4 THE CURRENT PETITION Petitioner now proceeds on the petition described supra. See Doc. No. 1.3 For 5 6 relief, he appears to seek dismissal of his criminal conviction. See Doc. 1, page 3. As grounds, 7 petitioner appears to allege that: (1) his 2008 re-sentencing hearing violated his due process 8 rights, because he was not present at the hearing; (2) the sentencing judge acted in excess of his 9 jurisdiction by imposing an illegal sentence; (3) the sentencing judge faxed a false commitment 10 document to the California Department of Corrections, which was false because it read that 11 petitioner was present at the re-sentencing hearing when he was not; (4) the California 12 Department of Corrections accepted the false documentation, and then aided and abetted the 13 sentencing judge’s deliberate falsification by altering their file information to give the 14 “appearance” that petitioner was at the re-sentencing hearing; (5) Sacramento County Superior 15 Court Judges Roman, Connelly, and Earl illegally barred petitioner from remedying these errors 16 by applying the wrong legal principals; and (6) the district attorney has failed to respond to the 17 “60 Day Action Order” issued by Sacramento County Judge Connelly on January 28, 2010. See 18 id. 19 \\\\ 20 21 3 25 On May 18, 2011, petitioner filed a “Complaint” pursuant to 28 U.S.C. § 1651. The Complaint is one page, and attached to it as Exhibit A is a Motion to Dismiss for Failure to Prosecute, which appears to be a motion to dismiss the underlying criminal conviction. The undersigned denied similar Motions to Dismiss on May 3, 2011 and July 14, 2011. Respondent has moved for dismissal of the Complaint, in the event the court considers it to be an amended habeas petition. See Doc. No. 46. Because the undersigned previously denied similar motions filed by the petitioner, the undersigned will instead recommend that the court construe the Complaint as another motion to dismiss the underlying conviction, and deny it for the reasons cited in the undersigned’s May 3, 2011 and July 14, 2011 orders. 26 12 22 23 24 Petitioner claims that Judge Connelly “issued my writ of mandate as a habeas 1 2 corpus granting review of and 60 day action order to District Attorney Allison Dunham....” and 3 that respondent has now exceeded the 60 days requirement, resulting in a failure to prosecute. 4 See Doc. No. 1 at 3, 6-7, 9-10, 22. Petitioner appears to allege that Sacramento County Judge 5 Connelly’s January 28, 2010 order, which construed the petition for writ of mandate as a petition 6 for writ of habeas corpus, created an obligation for the District Attorney to correct what 7 petitioner considers to be an error in his sentence, and that the District Attorney’s “failure to 8 prosecute in a timely manner” violates his due process and speedy trial rights, entitling him to 9 dismissal of the criminal case. See Doc. No. 1 at 22. In support, petitioner argues that the 10 District Attorney bears the complete burden to correct errors of law, or to notify the courts of 11 errors. See id. Petitioner appears to allege that, once the trial court served “the prosecuting 12 attorney (D.A.) in any case for preliminary examination for case review, under Penal Code 1382 13 the D.A. has 60 days to bring defendant to resentencing.” See id. Petitioner also alleges that he received ineffective assistance of trial and appellate 14 15 counsel. In support, petitioner argues that the “sentence itself is more than enough evidence to 16 support the fact that [trial counsel] intentionally denied petitioner a fundamentally fair 17 representation,” that counsel supported the trial court’s unethical and illegal operation in excess 18 of its jurisdiction, and that counsel never objected to the disproportionate sentence. See Doc. No. 19 1 at 16. 20 Petitioner argues that appellate counsel was also ineffective, that she also 21 supported the trial court’s illegal procedures, and that she supported the violation of petitioner’s 22 right to be present at re-sentencing. Id. 23 THE MOTION TO DISMISS 24 25 26 Respondent now moves to dismiss this habeas petition, arguing that it is untimely filed or, in the alternative, that the claims raised by petitioner are not exhausted. Petitioner 13 1 opposes the motion, restating his arguments that the criminal judgment is void, that his 2 constitutional rights were violated when he was not allowed to be present at re-sentencing, and 3 that, pursuant to California Department of Corrections policy, he is entitled to release because the 4 prosecutor failed to prosecute Judge Connelly’s “60 day action order” in a timely manner. 5 Timeliness 6 Unlike the usual case involving the AEDPA limitations statute in which the 7 petitioner has slept on his issues, petitioner herein was abusively diligent, both before and after 8 the finality of his conviction for AEDPA purposes. However, this pseudo-diligence does not 9 save this petition from being found untimely. Respondent argues that petitioner’s habeas petition was due on January 14, 2010, 10 11 and is late, because it was not filed until December 27, 2010. Respondent acknowledges that 12 petitioner is entitled to toll any time when he had a “properly filed” petition pending in the state 13 court. Giving petitioner credit for time when arguably “properly filed” petitions were pending, 14 respondent argues that petitioner’s federal petition was due no later than March 4, 2010. 15 Respondent argues that any state petitions filed after that date cannot toll the deadline. In opposition, petitioner appears to argue that, under relevant California law for 16 17 non-capital cases, there is no standard by which the court can determine if there has been a 18 substantial delay, and that denial of his numerous writs in the state court based on this “wrong 19 legal principle was inappropriate and violated petitioner’s 14th amend. rights.” See Doc. No. 38, 20 p. 6. 21 Exhaustion 22 Respondent alternatively argues that petitioner has failed to exhaust his current 23 arguments in the state court, and that the arguments raised by petitioner appear to be based on 24 events that occurred after petitioner’s petition for review was denied at the state Supreme Court. 25 \\\\ 26 14 In his opposition, petitioner does not address the exhaustion arguments raised by 1 2 respondent. 3 RELEVANT AUTHORITY 4 Timeliness 5 Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 6 U.S.C. § 2244(d)(1)(A), a federal petition for writ of habeas corpus ordinarily must be filed 7 within one year after the state court judgment becomes final by the conclusion of direct review of 8 the expiration of the time to seek direct review. E.g., Porter v. Ollison, 620 F.3d 952, 958 (9th 9 Cir. 2010). The time during which a properly filed application for state post-conviction or 10 collateral review (including California habeas proceedings) is pending does not count toward this 11 one-year period. Id., citing 28 U.S.C. § 2244(d)(2). 12 However, a petition filed before completion of direct review, or one filed after the 13 expiration of the statute of limitations, does not operate to effect the petitioner’s available time at 14 all. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2005) (“pre-finality” petitions); Jiminez v. 15 Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949, 123 S. Ct. 1627 (2003) 16 (applications for state post-conviction relief do not toll statute of limitations if filed after statute 17 of limitations has expired). 18 The relevant considerations for this petition are (1) whether petitioner’s many 19 state court collateral petitions and motions were “properly filed,” and, if so, (2) during what 20 periods were they “pending”? 21 “Properly Filed” 22 An application is “properly filed” when its delivery and acceptance are in 23 compliance with the applicable laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8, 24 121 S. Ct. 361, 364 (2000). This question is distinct from whether the claims considered in the 25 application are meritorious and free of procedural bar. Id. (identifying distinction between 26 15 1 condition to filing and condition to obtaining relief). Untimely petitions are not properly filed. Pace v. DiGuglielmo, 544 U.S. 408, 2 3 417, 125 S. Ct. 1807, 1814 (2005) (where state court rejects petition as untimely, it was not 4 “properly filed” and petitioner is not entitled to statutory tolling), Carey v. Saffold, 536 U.S. 214, 5 225-26, 122 S. Ct. 2134, 2141 (2002) (if state court rules that petition is untimely, that is “the 6 end of the matter,” regardless of whether state court also addressed merits of the claims, or 7 whether timeliness ruling was “entangled” with the merits). Under California state law, a 8 successive petition presenting additional claims that could have been presented in an earlier 9 collateral petition is, of necessity, a “delayed petition.” See In re Clark, 5 Cal. 4th at 770.4 At least one court in this district has found that the Clark bar extends to successive 10 11 petitions where petitioner does not raise any new claims: The California Supreme Court’s reasons for finding a successive petition raising new claims to be untimely is equally applicable to a successive petition raising identical claims. There is no indication in Clark that the California Supreme Court meant to find that successive duplicative petition was timely, whereas a successive petition raising new claims was not. 12 13 14 15 16 See Chance v. Martell, 2011 U.S. Dist. LEXIS 103235 *13-14 (Sept. 13, 2011) (Newman, M.J.) 17 (discussing whether Clark barred tolling for interval between first and second, successive 18 petition). 19 “Pending” 20 Collateral review is considered to be “pending” during the interim between a writ 21 being denied at one court level and a new petition being filed at the next highest court level as 22 long as the petition at the next level is filed within a reasonable period of time. Carey v. 23 4 25 There is no California rule outside of case law which prohibits the filing of a successive petition, though such a petition may be procedurally barred. Cf. 28 U.S.C. § 2244(a), (b) (petitioner seeking to file successive petition in federal district court must first obtain authorization from the Court of Appeals) with Cal. Rules of Court R. 4.551 and Cal. Penal Code § 1474. 26 16 24 1 Scaffold, 536 U.S. at 222-25, 122 S. Ct. at 2139-2141. 2 If the time to file a federal petition has not already expired when a second round 3 of properly filed California habeas petitions begins, the second round of petitions will also toll 4 the § 2244(d)(1) period. See Porter v. Ollison, 620 F.3d at 952 (“For tolling to be applied based 5 on a second round [of petitions filed in the state court], the petition cannot be untimely or an 6 improper successive petition.”). However, the interval between the two rounds is not tolled. Id. 7 Additionally, according to the Porter decision, a second round will not toll the AEDPA deadline 8 if the second petition is “untimely or an improper successive petition.” See id., citing Townsend 9 v. Knowles, 562 F.3d 1200, 1205 (9th Cir.), cert. denied, 130 S. Ct 193 (2009) (untimely state 10 court petition not properly filed). The Ninth Circuit has also answered whether a petitioner may be entitled to 11 12 interval tolling between two Superior Court petitions, finding that where a petitioner elects to 13 begin a second round of petitions in the Superior Court before completing a full round of review 14 through the highest available state court, petitioner may be entitled to interval tolling between the 15 first and second Superior Court petitions if the second petition is timely, and “the successive 16 petition was attempting to correct deficiencies of a prior petition,” because the petitioner “is still 17 making proper use of state court procedures and habeas review is still pending.” See Banjo v. 18 Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010). 19 ANALYSIS Under the chronology outlined above, petitioner’s petition for review was denied 20 21 in the California Supreme Court on October 16, 2008, and the time to seek direct review ended 22 on January 14, 2009, when his 90-day period to file a petition for writ of certiorari with the 23 United States Supreme Court ended. Petitioner thereafter had one year in which to file his 24 federal petition, beginning January 15, 2009, and ending one year later, on January 14, 2010. 25 \\\\ 26 17 Petitioner, however, did not file his federal petition until December 27, 2010, 1 2 some 348 days afterwards, and so it is untimely unless he is entitled to toll the deadline. The undersigned finds that petition is not entitled to tolling under 28 U.S.C. 3 4 § 2244(d)(2): – The petitions filed January 17, 2007; May 3, 2007; June 13, 2007; and June 18, 5 6 2007, should have no effect on the petitioner’s statute of limitations, as they were filed prior to 7 completion of direct review. See Waldrip v. Hall, 548 F.3d at 735. – The petitions filed December 17, 2008, March 12, 2009, April 13, 2009, June 8 9 12, 2009, and December 22, 2009, were denied as successive, and were therefore untimely under 10 California law. See In re Clark, 5 Cal. 4th at 770. As untimely petitions, they were not properly 11 filed. See Pace v. DiGuglielmo, 544 U.S. at 417. – The motions for modification of sentence, filed July 15, 2009 and July 21, 2009, 12 13 were filed with the Superior Court nine (9) months after the state Supreme Court denied review 14 of petitioner’s judgment and sentence, and more than eight (8) months after the Superior Court 15 entered the amended judgment and sentence. Pursuant to California Penal Code section 1170, 16 the superior court may, within 120 days of the date of commitment, recall a sentence and 17 commitment previously ordered and re-sentence the prisoner. After that time period, the 18 sentencing court does not have jurisdiction to vacate or to modify the sentence. See Dix v. 19 Superior Court, 53 Cal. 3d. 442, 464 (1991); People v. Lockridge, 12 Cal. App. 4th 1752, 1757 20 (1993). The motions are accordingly not “properly filed,” because the court in which petitioner 21 filed them lacked jurisdiction to provide the relief requested. See Blair v. Crawford, 275 F.3d 22 1156, 1158 (9th Cir. 2002), citing Artuz v. Bennett, 531 U.S. at 9, 121 S. Ct. at 364 (“If, for 23 example, an application is erroneously accepted by the clerk of a court lacking jurisdiction....it 24 will be pending, but not properly filed.”)(emphasis in original). 25 \\\\ 26 18 1 – The mandamus petitions filed August 28, 2009, September 24, 2009, and 2 October 13, 2009 were untimely, since they were filed at least ten months after entry of the 3 judgment. See People v. Superior Court (Brent), 2 Cal. App. 4th 675, 682 (1992) (“Where there 4 is otherwise no statutory authority or time limit in filing a writ, it must usually be filed within 60 5 days”). – The petitions and motions filed March 15, 2010; April 6, 2010; April 12, 2010; 6 7 May 17, 2010; June 8, 2010; June 28, 2010; July 12, 2010; July 14, 2010; and July 21, 2010, 8 were filed after January 15, 2010, when the statute of limitations expired. They do not affect 9 tolling. See Jiminez v. Rice, 276 F.3d at 482. Because the petition was not timely filed, the undersigned does not reach 10 11 respondent’s alternative argument that petitioner failed to exhaust his arguments in state court. The undersigned additionally recommends that the remaining motions be denied 12 13 as moot. 14 Accordingly, IT IS HEREBY RECOMMENDED that: 15 1. GRANTED. 16 17 The respondent’s motion to dismiss (Doc. No. 36) the petition be 2. The Complaint filed May 5, 2011 (Doc. No. 39) be construed as a motion 18 to dismiss the underlying criminal conviction, and, so construed, be 19 DENIED. 20 3. All other motions (Doc Nos. 46, 48, 56 and 58) be DENIED as moot. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 26 19 1 shall be served and filed within fourteen days after service of the objections. The parties are 2 advised that failure to file objections within the specified time may waive the right to appeal the 3 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). If petitioner files objections, he shall also address if a certificate of appealability 4 5 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 6 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 7 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 8 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 9 DATED: November 17, 2011 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 10 11 12 GGH:rb ston3454.fr 13 14 15 16 17 18 19 20 21 22 23 24 25 26 20

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