Green v. Hedgpeth, No. 4:2010cv04136 - Document 27 (N.D. Cal. 2011)
Court Description: ORDER GRANTING MOTION TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 8/12/2011. (ndr, COURT STAFF) (Filed on 8/12/2011)
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Green v. Hedgpeth Doc. 27 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JOHN GREEN, 9 United States District Court For the Northern District of California 10 11 No. C 10-04136 CW (PR) Petitioner, ORDER GRANTING MOTION TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY v. ANTHONY HEDGPETH, Warden, 12 Respondent. / 13 14 INTRODUCTION 15 16 Petitioner John Green, a state prisoner incarcerated at 17 Salinas Valley State Prison, filed a pro se petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. 19 Respondent to show cause why the writ should not be granted. 20 Respondent filed a motion to dismiss for untimeliness. 21 filed an opposition, and Respondent filed a reply. 22 considered the papers submitted, the Court GRANTS Respondent's 23 motion to dismiss and grants Petitioner a certificate of 24 appealability. Petitioner Having BACKGROUND 25 26 The Court ordered In 2005, Petitioner was convicted by an Alameda County jury of 27 second degree murder, attempted murder and assault with a deadly 28 weapon. The jury also found that Petitioner personally and Dockets.Justia.com 1 intentionally discharged a firearm which proximately caused great 2 bodily injury or death, and that he personally used a firearm and 3 inflicted great bodily injury. 4 prior conviction allegations. 5 felony allegations, including one that constituted a strike. 6 Petitioner was sentenced to an indeterminate term of eighty years 7 to life with possibility of parole, consecutive to a determinate 8 term of nine years, eight months. Petitioner waived a jury trial on The trial court found five prior Petitioner filed an appeal in the California Court of Appeal, 10 United States District Court For the Northern District of California 9 claiming that (1) the trial court erred in instructing the jury on 11 the unavailability of a defense of self-defense to one who creates 12 a need for self-defense by his own conduct; (2) he received 13 ineffective assistance of counsel due to his trial counsel's 14 failure to object to a portion of the prosecutor's rebuttal 15 argument; and (3) the admission of a preliminary hearing transcript 16 during the court trial on prior conviction allegations violated his 17 rights under the confrontation clause of the Sixth Amendment. 18 May 12, 2008, the appellate court rejected his claims. 19 On Petitioner filed a petition for review in the California 20 Supreme Court. 21 comment on August 13, 2008. 22 sought review in the United States Supreme Court, and there is no 23 evidence that he filed any other pleadings in state court to 24 challenge his convictions. 25 The state supreme court denied review without Petitioner does not allege that he On September 14, 2010, Petitioner filed motions to appoint 26 counsel (Docket No. 1) and to proceed in forma pauperis (Docket No. 27 4), which were filed by the Clerk of the Court as a habeas corpus 28 2 1 action. 2 Court sent Petitioner a notice that he had not filed a petition and 3 that if he did not do so within thirty days his action would be 4 dismissed. 5 extension of time to file his petition. 6 Court granted Petitioner’s request and extended the thirty day 7 deadline to file his petition to November 18, 2010. 8 15, 2010, Petitioner filed his petition for a writ of habeas 9 corpus. On the same day the action was filed, the Clerk of the On September 22, 2010, Petitioner filed a motion for an On October 19, 2010, the On November Based upon this series of events, the Court will consider United States District Court For the Northern District of California 10 September 14, 2010 as the date the present petition was filed. 11 However, as discussed below, the statute of limitations had already 12 expired by that date. 13 In response to Respondent's motion to dismiss for 14 untimeliness, Petitioner claims he was unable to file his petition 15 sooner because he did not receive requested documents from his 16 appointed appellate counsel, Mark D. Greenberg, until July 16, 17 2010. 18 attempting to contact his appellate counsel, by mail, phone and 19 through third parties, including a family member, a friend, a pro 20 bono private investigator and the First District Appellate Project. 21 According to Petitioner, he spent nearly two years In support of his opposition, Petitioner attached a copy of 22 his incoming and outgoing prison mail logs from January 2009 until 23 October 2010. 24 January 16, 2009, Petitioner sent mail to an unnamed Oakland 25 attorney with the zip code 94610. 26 sent mail to "AAL Greenburg [sic]" at Oakland zip code 94612. 27 next relevant entry is over a year later, on May 3, 2010, when 28 See Opp. Ex. C. The outgoing log indicates that on On April 22, 2009, Petitioner 3 The 1 Petitioner sent mail to "M Greenberg AAL" at Oakland zip code 2 94610. 3 District Appellate Project on June 17, 2010. 4 The log also shows Petitioner sent mail to the First Petitioner's incoming mail log indicates that on July 16, 5 2010, he received two boxes from Mr. Greenberg. 6 only that these boxes contained work product. Petitioner states 7 Petitioner also marked entries on his outgoing mail log 8 showing that he sent mail to "S. Strellis AAL" at Oakland zip code 9 94621 and "S.W. Strellis ATT" at Oakland zip code 94612, both on United States District Court For the Northern District of California 10 July 7, 2010. 11 content or significance of these entries, Petitioner previously 12 identified Spencer Strellis as his trial counsel. 13 2010, before filing his petition, Petitioner wrote to the Court 14 requesting that a mediator be appointed to help him obtain his 15 trial counsel's work product. 16 contend in his Opposition that the delay in obtaining records from 17 his trial counsel entitles him to equitable tolling, presumably 18 because there is no indication in his mail log of attempts to 19 contact Mr. Strellis prior to July 7, 2010, nearly nine months 20 after the expiration of the statute of limitations to file his 21 federal petition. Although Petitioner’s brief does not explain the (Docket No. 3.) On September 14, Petitioner does not 22 Petitioner also suggests that his phone and mail logs from 23 Kern Valley State Prison, where he resided from July 2007 until 24 January 2009, would show his efforts to obtain the materials from 25 Mr. Greenberg. 26 Petitioner submits no other evidence of his or any third party's 27 efforts to obtain the files from Mr. Greenberg. 28 These logs were not submitted by Petitioner. 4 1 DISCUSSION 2 The Antiterrorism and Effective Death Penalty Act (AEDPA) 3 imposes a statute of limitations on petitions for a writ of habeas 4 corpus filed by state prisoners. 5 challenging non-capital state convictions or sentences must be 6 filed within one year of the latest date on which: (A) the judgment 7 became final after the conclusion of direct review or the time 8 passed for seeking direct review; (B) an impediment to filing an 9 application created by unconstitutional state action was removed, Petitions filed by prisoners United States District Court For the Northern District of California 10 if such action prevented the petitioner from filing; (C) the 11 constitutional right asserted was recognized by the Supreme Court, 12 if the right was newly recognized by the Supreme Court and made 13 retroactive to cases on collateral review; or (D) the factual 14 predicate of the claim could have been discovered through the 15 exercise of due diligence. 16 However, "[t]he time during which a properly filed application for 17 state post-conviction or other collateral review with respect to 18 the pertinent judgment or claim is pending shall not be counted 19 toward any period of limitation." 28 U.S.C. § 2244(d)(1)(A)-(D). Id. § 2244(d)(2). 20 Although § 2244(d) states that the limitations period 21 commences on "the date on which the judgment became final by the 22 conclusion of direct review or the expiration of the time for 23 seeking such review," direct review includes the ninety-day period 24 in which a petitioner may file for a writ of certiorari in the 25 United States Supreme Court. 26 (9th Cir. 1999). 27 final on November 11, 2008. 28 See Bowen v. Roe, 188 F.3d 1157, 1159 Therefore, Petitioner's state judgment became Petitioner was required to file his 5 1 federal habeas petition no later than November 11, 2009. 2 § 2244(d). 3 2010, was filed approximately ten months after the limitations 4 period had expired. 5 delayed commencement of the limitations period or equitable 6 tolling. 7 See His petition, even if deemed filed on September 14, Thus, the petition is untimely absent either Petitioner does not suggest, and the Court does not discern, 8 any basis for delayed commencement of the limitations period. 9 Petitioner does not allege any state action that prevented him from United States District Court For the Northern District of California 10 filing his petition earlier. 11 are identical to his claims before the California Court of Appeal, 12 Petitioner does not allege a violation of any right newly 13 recognized by the Supreme Court or a factual predicate of which he 14 was previously unaware. 15 Because his claims in this petition Petitioner does, however, present an argument for equitable 16 tolling of the statute of limitations, based on the delay in 17 receiving documents from his appellate counsel. 18 limitations period can be equitably tolled because § 2244(d) is a 19 statute of limitations, not a jurisdictional bar. 20 Florida, 130 S. Ct. 2549, 2560 (2010). 21 rather than a petitioner's lack of diligence, account for the 22 failure to file a timely claim, equitable tolling of the statute of 23 limitations may be appropriate." 24 1107 (9th Cir. 1999). 25 tolling' only if he shows '(1) that he has been pursuing his rights 26 diligently, and (2) that some extraordinary circumstance stood in 27 his way' and prevented timely filing." 28 The one-year Holland v. "When external forces, Miles v. Prunty, 187 F.3d 1104, "[A] 'petitioner' is 'entitled to equitable 6 Holland, 130 S. Ct. at 2562 1 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 2 petitioner must show that 'the extraordinary circumstances were the 3 cause of his untimeliness and that the extraordinary circumstances 4 made it impossible to file a petition on time.'" 5 Ollison, 620 F.3d 952, 959 (2010) (quoting Ramirez v. Yates, 571 6 F.3d 993, 997 (2009)). "The Porter v. 7 The Ninth Circuit has held that the failure of a pro se 8 petitioner's trial attorney to provide him with parts of his legal 9 file may be an extraordinary circumstance warranting equitable United States District Court For the Northern District of California 10 tolling. 11 Cir. 2004) (§ 2255 petition) (remanding to district court to 12 determine whether counsel's failure to provide petitioner with 13 trial transcript warranted equitable tolling); but see Randle v. 14 Crawford, 604 F.3d 1047, 1057-58 (9th Cir. 2010) (state-appointed 15 counsel's failure to provide petitioner his legal papers did not 16 warrant equitable tolling where petitioner sought papers for his 17 state habeas petition; delay did not prevent petitioner from filing 18 a federal habeas petition). 19 tolling if his counsel's delay in providing the files caused his 20 untimeliness and made it impossible for him to file in time, 21 Porter, 620 F.3d at 959, and if Petitioner was "pursuing his rights 22 diligently," 23 See United States v. Battles, 362 F.3d 1195, 1197-98 (9th Petitioner is entitled to equitable Holland, 130 S. Ct. at 2562. Petitioner’s evidence does not demonstrate his diligence in 24 seeking to obtain these files. 25 entitlement to equitable tolling is “reasonable diligence.” 26 Holland, 130 S. Ct. at 2565. 27 of legal sophistication is not, by itself, an extraordinary 28 The diligence required to establish Although "a pro se petitioner’s lack 7 1 circumstance warranting equitable tolling," Raspberry v. Garcia, 2 448 F.3d 1150, 1154 (9th Cir. 2006), a pro se prisoner's 3 allegations regarding diligence in filing a federal petition must 4 be construed liberally, Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 5 2006). 6 Construed liberally, Petitioner's mail log indicates that he 7 made, at most, two attempts to contact his appellate counsel by 8 mail between January 2009 and the expiration of the statute of 9 limitations in November 2009. There were no attempts at all United States District Court For the Northern District of California 10 between April 2009 and November 2009. 11 year passed between his April 2009 attempt and his next attempt, in 12 May 2010. 13 limitations had run. 14 In addition, more than a The latter attempt came five months after the statute of Moreover, following receipt of the two boxes of work product 15 from his appellate counsel, Petitioner did not initiate the present 16 action for another two months. 17 files from his trial counsel Mr. Strellis. 18 discloses no attempts to contact Mr. Strellis by mail prior to July 19 2010. 20 appellate counsel, as well as the delay in contacting his trial 21 counsel, demonstrate a lack of diligence on Petitioner's part. 22 During this time he was seeking But his mail log The significant gaps in his own attempts to contact his Petitioner states that he also attempted to contact his 23 appellate counsel by telephone, and that others acting on his 24 behalf attempted to contact his appellate counsel. 25 Petitioner does not provide any additional information about these 26 attempts, such as the means that were employed, or the dates or 27 results of those attempts. 28 8 However, 1 Even if Petitioner had acted with sufficient diligence to 2 receive equitable tolling of the statute of limitations, he has not 3 shown that the delay in receiving his appellate counsel's files 4 made it impossible for him to file a timely petition. 5 620 F.3d at 959. 6 counsel's work product so he "could submit a nonfrivolous[] 7 petition for writ of habeas corpus." 8 9 See Porter, Petitioner states that he needed his appellate Petitioner does not identify any specific document that he needed from his appellate counsel's files in order to file his United States District Court For the Northern District of California 10 petition. 11 including the California Court of Appeal opinion, the California 12 Supreme Court’s order denying review, and what appears to be some 13 of the evidence from his trial, these documents were not required. 14 See Pliler v. Ford, 542 U.S. 225, 232 & n.2 (2004) (noting that 15 petitioners are not required to submit state court records unless 16 challenging sufficiency of the evidence). 17 not refer to these documents anywhere in his petition. 18 Petitioner shown that he needed the records from his appellate 19 counsel to understand the basis for his claims. 20 the pleadings filed by his appellate counsel in the Court of Appeal 21 and the California Supreme Court. 22 Although he attached several documents to his petition, Indeed, Petitioner did Nor has He was served with See Respondent's Reply, Ex. A. Because Petitioner did not need his legal files in order to 23 attach unnecessary state court records to his habeas petition or to 24 understand the basis of his claims, his lack of access to the files 25 did not make it impossible for him to file a timely petition. 26 Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) (lack of access 27 to legal files not an extraordinary circumstance where record 28 9 See 1 showed petitioner was aware of the factual basis for his claims 2 without the files). 3 further belied by his previous representations to the Court. 4 Before filing his petition but after receiving the files from his 5 appellate counsel, Petitioner stated that his lack of access to the 6 docket sheet from the trial court, the trial exhibits and his trial 7 counsel's work product made him "unable to prepare a nonfrivolous 8 petition." 9 time, Petitioner represented that the delay in receiving files from Petitioner’s claim that he needed the files is September 14, 2010 Letter (Docket No. 3). At that United States District Court For the Northern District of California 10 his trial counsel prevented him from filing his petition even 11 though he had received the files from his appellate counsel. 12 Therefore, Petitioner has not shown that it was the delay in 13 receiving his appellate counsel’s files that caused his 14 untimeliness, and he is not entitled to equitable tolling of the 15 statute of limitations. 16 17 CONCLUSION For the foregoing reasons, Respondent's motion to dismiss the 18 petition (Docket no. 21) is GRANTED. 19 PREJUDICE. 20 See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. 21 § 2254 (requiring district court to rule on certificate of 22 appealability in same order that denies petition). 23 of appealability should be granted "only if the applicant has made 24 a substantial showing of the denial of a constitutional right." 25 U.S.C. § 2253(c)(2). 26 argument regarding equitable tolling, Petitioner has made a 27 sufficient showing of the denial of a constitutional right to 28 This action is DISMISSED WITH The Court must rule on a certificate of appealability. A certificate 28 The Court finds that, by making a colorable 10 1 2 3 4 5 justify a certificate of appealability. The Clerk shall terminate all pending motions, enter judgment, and close the file. IT IS SO ORDERED. Dated: 8/12/2011 CLAUDIA WILKEN United States District Judge 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 JOHN GREEN, Case Number: CV10-04136 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 7 8 THE PEOPLE OF STATE OF CALIFORNIA et al, Defendant. / 9 United States District Court For the Northern District of California 10 11 12 13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 12, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 14 15 16 17 18 19 John Green F11443 B-4-209 Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960-1050 Dated: August 12, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 12
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