Richardson v. Rackley, No. 4:2017cv07374 - Document 17 (N.D. Cal. 2018)
Court Description: ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABLILTY granting 13 MOTION to Dismiss Petition for Writ of Habeas Corpus as Untimely filed by Ron Rackley. Signed by Judge Phyllis J. Hamilton on 7/30/18. ***Civil Case Terminated. (Certificate of Service Attached). (kcS, COURT STAFF) (Filed on 7/30/2018)
Download PDF
<![CDATA[
Richardson v. Rackley Doc. 17 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVINNTERRA RICHARDSON, Petitioner, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-07374-PJH v. RON RACKLEY, Respondent. ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY Re: Dkt. No. 13 12 13 This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. 14 Respondent has filed a motion to dismiss on the ground that the petition is barred by the 15 statute of limitations. Petitioner has filed an opposition. For the reasons that follow, the 16 motion is granted. DISCUSSION 17 18 Statute of Limitations 19 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed for 20 the first time a statute of limitations on petitions for a writ of habeas corpus filed by state 21 prisoners. Petitions filed by prisoners challenging noncapital state convictions or 22 sentences must be filed within one year of the latest of the date on which: (A) the 23 judgment became final after the conclusion of direct review or the time passed for 24 seeking direct review; (B) an impediment to filing an application created by 25 unconstitutional state action was removed, if such action prevented petitioner from filing; 26 (C) the constitutional right asserted was recognized by the Supreme Court, if the right 27 was newly recognized by the Supreme Court and made retroactive to cases on collateral 28 review; or (D) the factual predicate of the claim could have been discovered through the Dockets.Justia.com 1 exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed 2 application for state post-conviction or other collateral review is pending is excluded from 3 the one-year time limit. Id. § 2244(d)(2). The one-year period may start running from 4 "the expiration of the time for seeking [direct] review." 28 U.S.C. § 2244(d)(1)(A). Petitioner pled no contest and was sentenced on June 6, 2014. Petition at 1. United States District Court Northern District of California 5 6 Petitioner did not appeal. The conviction therefore became final 60 days later on August 7 5, 2014, when the time for filing an appeal expired. See Mendoza v. Carey, 449 F.3d 8 1065, 1067 (9th Cir. 2006) (because California prisoner did not appeal his conviction, 9 process of direct review became final 60 days after conviction); Cal. Rule of Court 10 8.308(a). The statute of limitations expired one year later on August 5, 2015. See 28 11 U.S.C. § 2244(d)(1). The instant federal petition filed on December 18, 2017, is thus 12 untimely absent tolling.1 13 Petitioner alleges that on August 14, 2017, she submitted a state habeas petition 14 to the Alameda County Superior Court that was ignored. Petition at 13. Petitioner then 15 filed state habeas petitions with the California Court of Appeal and California Supreme 16 Court that were both denied. Motion to Dismiss, Ex. 1. Even assuming petitioner did file a petition with the Alameda County Superior 17 18 Court that was ignored, all of petitioner’s state habeas petitions were filed more than two 19 years after the expiration of the statute of limitations so she will not receive tolling. See 20 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not 21 permit the reinitiation of the limitations period that has ended before the state petition was 22 filed," even if the state petition was timely filed). Thus, this petition is untimely. Petitioner also argues that she is actually innocent, which may serve as an 23 24 equitable exception to the statute of limitations. In McQuiggin v. Perkins, 569 U.S. 383 25 (2013), the Supreme Court ruled that a “convincing showing” of actual innocence under 26 27 28 1 The court affords petitioner application of the mailbox rule as to all her habeas filings. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). 2 1 Schlup v. Delo, 513 U.S. 298 (1995) can overcome the AEDPA statute of limitations. In 2 Schlup, 513 U.S. at 324, the Supreme Court held that a claim of actual innocence 3 “requires petitioner to support his allegations of constitutional error with new reliable 4 evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, 5 or critical physical evidence-that was not presented at trial.” Further, “the petitioner must 6 show that it is more likely than not that no reasonable juror would have convicted him in 7 light of the new evidence.” Id. at 327. Under Schlup, petitioner must establish his or her 8 factual innocence of the crime, and not mere legal insufficiency. See Bousley v. United 9 States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882–83 (9th Cir. 10 United States District Court Northern District of California 11 2003). The Supreme Court has stressed that the exception is limited to “certain 12 exceptional cases involving a compelling claim of actual innocence.” House v. Bell, 547 13 U.S. 518, 522 (2006). Moreover, the Ninth Circuit has noted that, because of “the rarity 14 of such evidence, in virtually every case, the allegation of actual innocence has been 15 summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (quoting 16 Calderon v. Thomas, 523 U.S. 538, 559 (1998)). 17 In support of her actual innocence claim, petitioner contends that the victim initially 18 reported to police that she did not know who attacked her but then pointed to petitioner 19 and identified her as the assailant and that this all occurred on a busy street. Docket No. 20 9 at 1-2. Petitioner has not presented new evidence because all of these facts were 21 known to petitioner when she pled no contest. These allegations do not rise to the high 22 level required to state a claim of actual innocence. See Schlup, 513 U.S. at 328 (noting 23 the need to present “evidence tenably claimed to have been wrongly excluded or to have 24 become available only after the trial”); see also Lee v. Lampert, 653 F.3d 929, 945 (9th 25 Cir. 2011) (en banc) (“to pass through the Schlup gateway, a petitioner must show 26 reliable evidence of his [or her] innocence that was not, and could not have been, 27 presented at trial”) (Kozinski, C.J., concurring). The petition is dismissed as untimely. 28 3 1 CONCLUSION 2 Respondent’s motion to dismiss (Docket No. 13) is GRANTED as discussed 3 above. The petition is DISMISSED. The clerk shall close the file. APPEALABILITY 4 5 6 district court that enters a final order adverse to the petitioner to grant or deny a 7 certificate of appealability (“COA”) in the order. See Rule 11(a), Rules Governing § 2254 8 Cases, 28 U.S.C. foll. § 2254. 9 United States District Court Northern District of California The federal rules governing habeas cases brought by state prisoners require a A petitioner may not appeal a final order in a federal habeas corpus proceeding 10 without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. 11 App. P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a 12 procedural question antecedent to the merits, for instance a dismissal on statute of 13 limitations grounds, as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). 14 “Determining whether a COA should issue where the petition was dismissed on 15 procedural grounds has two components, one directed at the underlying constitutional 16 claims and one directed at the district court’s procedural holding.” Id. at 484-85. “When 17 the district court denies a habeas petition on procedural grounds without reaching the 18 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, 19 at least, that jurists of reason would find it debatable whether the petition states a valid 20 claim of the denial of a constitutional right and that jurists of reason would find it 21 debatable whether the district court was correct in its procedural ruling.” Id. at 484. As 22 each of these components is a “threshold inquiry,” the federal court “may find that it can 23 dispose of the application in a fair and prompt manner if it proceeds first to resolve the 24 issue whose answer is more apparent from the record and arguments.” Id. at 485. 25 Supreme Court jurisprudence “allows and encourages” federal courts to first resolve the 26 procedural issue, as was done here. See id. 27 28 Here, the court declines to issue a COA regarding the procedural holding or the underlying claim because reasonable jurists would not find the court’s findings debatable. 4 1 2 3 The court therefore DEN NIES a COA A. IT IS SO S ORDER RED. Da ated: July 30 0, 2018 4 5 PH HYLLIS J. H HAMILTON N Un nited Statess District Ju udge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 2 UNITED D STATES D DISTRICT C COURT 3 NORTHER RN DISTRIC CT OF CALIIFORNIA 4 5 DAVINNTER D RRA RICHA ARDSON, Case No. 117-cv-073744-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 RON RACKL LEY, Defendant.. 9 10 United States District Court Northern District of California 11 I, the un ndersigned, hereby certify that I am an employeee in the Offiice of the Clerk, U.S. Disstrict Court, Northern Diistrict of Callifornia. 12 13 14 15 16 That on n July 30, 20 018, I SERVE ED a true annd correct coopy(ies) of thhe attached, by placing said copy(ies) in i a postage paid envelo ope addressedd to the persson(s) hereinnafter listed, by dep positing said d envelope in n the U.S. Mail, M or by plaacing said coopy(ies) intoo an inter-off ffice delivery y recceptacle locaated in the Cllerk's office.. 17 18 19 Daavinnterra Richardson R ID D: WE-9948 8 Follsom Women's Facility P.O O. Box 1790 0 Follsom, CA 95 5763 20 21 22 Daated: July 30,, 2018 23 24 Suusan Y. Soonng Cllerk, Unitedd States Distrrict Court 25 26 27 28 Byy:_________ __________________ K Kelly Collins,, Deputy Cleerk to the H Honorable PH HYLLIS J. H HAMILTON N 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
