(HC) Warsinger v. Marshall, No. 1:2009cv00565 - Document 32 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Respondent's Motion to Dismiss 30 , signed by Magistrate Judge Michael J. Seng on 5/18/11: Recommending that the motion to dismiss be GRANTED and the habeas corpus petition 1 be DISMISSED with prejudi ce for Petitioner's failure to comply with 28 U.S.C. § 2244(d)'s one year limitation period; Matter referred to Judge Ishii; Thirty-Day Deadline for filing Objections to Findings & Recommendations; Reply due fourteen days after service of the Objections. (Hellings, J)
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(HC) Warsinger v. Marshall Doc. 32 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 DONAL VANCE WARSINGER, 13 Petitioner, 14 v. 15 16 GARY SWARTHOUT, Warden Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00565 AWI MJS HC FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS (Doc. 30) 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. Respondent1 is represented in this action by Brook Bennigson, 21 Esq., of the Office of the Attorney General for the State of California. 22 I. BACKGROUND 23 Petitioner is currently in the custody of the California Department of Corrections 24 pursuant to a judgment of the Superior Court of California, County of Fresno, upon being 25 26 1 27 28 Respondent has notified the Court that Gary Swarthout serves as the current warden of California State Prison - Solano. The Court shall substitute Mr. Swarthout as Respondent pursuant to Federal Rule of Civil Procedure 25(d). U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 convicted by a jury of assault with a deadly weapon. (See LD No. 1.2) On December 9, 2004, 2 Petitioner was sentenced to serve an indeterminate term of thirty-eight years in prison based 3 on California three strikes law and various enhancements. (Id.) Petitioner appealed, and on 4 April 21, 2006, the California Court of Appeal, Fifth Appellate District affirmed the judgment. 5 (LD No. 2.) The California Supreme Court denied review on June 28, 2006. (LD Nos. 3-4.) 6 Starting in December 2007, Petitioner filed three post-conviction collateral challenges 7 with respect to the judgment in the state courts, all petitions for writ of habeas corpus, as 8 follows: 9 1. Fresno County Superior Court Filed: December 12, 20073; Denied: January 3, 2008; 2. California Court of Appeals, Fifth Appellate District Filed: February 19, 20084; Denied: March 6, 2008; 3. California Supreme Court Filed: April 3, 20085; Denied: October 22, 2008; 10 11 12 13 14 15 See LD Nos. 5-10. 16 On January 28, 20096, Petitioner filed the instant federal petition for writ of habeas 17 corpus in this Court. On March 28, 2011, Respondent filed a motion to dismiss the petition as 18 being filed outside the one-year limitations period and for failure to exhaust state remedies. 19 20 21 22 23 24 25 26 27 28 2 “LD” refers to the docum ents lodged by Respondent in support of his m otion to dism iss. 3 Under the m ailbox rule, the Court deem s petitions filed on the date Petitioner handed a petition to prison authorities for m ailing. Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988); Cam pbell v. Henry, 614 F.3d 1056 (9th Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases. Although the petition was filed on Decem ber 14, 2007, under the m ailbox rule the Court will consider the petition filed on Decem ber 12, 2007, the date Petitioner signed the petition. 4 Although the petition was filed on February 26, 2008, under the m ailbox rule the Court will consider the petition filed on February, 19, 2008, the date Petitioner signed the petition. 5 Although the petition was filed on April 7, 2008, under the m ailbox rule the Court will consider the petition filed on April 3, 2008, the date Petitioner signed the petition. 6 Although the petition was filed on March 6, 2009, under the m ailbox rule the Court will consider the petition filed on January 28, 2009, the date Petitioner signed the petition. U .S. D istrict C ourt E. D . C alifornia -2- 1 28 U.S.C. § 2244(b), (d). Petitioner did not file an opposition to the motion to dismiss. 2 II. DISCUSSION 3 A. Procedural Grounds for Motion to Dismiss 4 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 5 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is 6 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 7 Cases. 8 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an 9 answer if the motion attacks the pleadings for failing to exhaust state remedies or being in 10 violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th 11 Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state 12 remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural 13 grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 14 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss 15 after the court orders a response, and the Court should use Rule 4 standards to review the 16 motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 17 In this case, Respondent's motion to dismiss is based on a violation of the one-year 18 limitations period and failure to exhaust state remedies. 28 U.S.C. § 2244(b), (d)(1). 19 Accordingly, the Court will review Respondent’s motion to dismiss pursuant to its authority 20 under Rule 4. 21 B. Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A) 22 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 23 of 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for 24 writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 25 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), 26 cert. denied, 118 S.Ct. 586 (1997). 27 In this case, the petition was filed on January 28, 2009, and therefore, it is subject to 28 the provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on U .S. D istrict C ourt E. D . C alifornia -3- 1 petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). 2 As amended, § 2244, subdivision (d) reads: (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 – 3 4 (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; 5 6 (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; 7 8 (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 applicable to cases on collateral review; or 9 10 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 11 12 (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. 13 14 15 28 U.S.C. § 2244(d). 16 Under § 2244(d)(1)(A), the limitations period begins running on the date that the 17 petitioner’s direct review became final or the date of the expiration of the time for seeking such 18 review. In this case, the California Supreme Court denied review on June 28, 2006. The state 19 appeal process became final ninety days later, on September 26, 2006, when the time for 20 seeking certiorari with the United States Supreme Court expired. U.S. Supreme Court rule 13; 21 Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations began to run 22 the following day, on September 27, 2006. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 23 2001). 24 Petitioner would have one year from September 26, 2006, absent applicable tolling, in 25 which to file his federal petition for writ of habeas corpus. However, Petitioner delayed in filing 26 the instant petition until January 28, 2009, over a year after the statute of limitations period 27 expired. Absent the later commencement of the statute of limitations or any applicable tolling, 28 the instant petition is barred by the statute of limitations. Petitioner has made no showing that U .S. D istrict C ourt E. D . C alifornia -4- 1 the statute of limitations should commence at a later date under § 2244(d)(1)(B)-(D). 2 Accordingly, Petitioner may only rely on tolling to attempt to show that the petition is not barred 3 by the statute of limitations. 4 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 5 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application for 6 State post-conviction or other collateral review with respect to the pertinent judgment or claim 7 is pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). 8 In Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a 9 petitioner is properly pursuing post-conviction relief, and the period is tolled during the intervals 10 between one state court's disposition of a habeas petition and the filing of a habeas petition 11 at the next level of the state court system. 536 U.S. 214, 216 (2002); see also Nino v. Galaza, 12 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000). Nevertheless, state 13 petitions will only toll the one-year statute of limitations under § 2244(d)(2) if the state court 14 explicitly states that the post-conviction petition was timely or was filed within a reasonable 15 time under state law. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 16 189 (2006). Claims denied as untimely or determined by the federal courts to have been 17 untimely in state court will not satisfy the requirements for statutory tolling. Id. 18 As stated above, the statute of limitations period began on September 26, 2006. 19 Accordingly, without tolling, Petitioner had until September 26, 2007 to file his federal petition. 20 However, Petitioner filed his first state habeas petition on December 12, 2007, with the Fresno 21 County Superior Court. At that point, the limitations period had elapsed. State petitions filed 22 after the expiration of the statute of limitations period shall have no tolling effect. Ferguson v. 23 Palmateer, 321 F.3d 820 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of 24 the limitations period that has ended before the state petition was filed."). None of Petitioner's 25 state filings serve to toll the statute of limitations period. 26 Accordingly, the limitations period began on September 26, 2006 and expired one year 27 later on September 26, 2007. The present petition was filed on January 28, 2009, over a year 28 after the expiration of the year statute of limitations period. Accordingly, the instant federal U .S. D istrict C ourt E. D . C alifornia -5- 1 petition is untimely. 2 D. 3 The limitations period is subject to equitable tolling if the petitioner demonstrates: “(1) 4 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 5 stood in his way.” Holland v. Florida, 130 S. Ct. 2549, 2560-62(2010); quoting Pace v. 6 DiGuglielmo. Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 7 544 U.S. at 418; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.1993). Petitioner has not 8 presented any basis for which his petition would be equitably tolled. E. 9 Equitable Tolling Exhaustion of State Remedies 10 Respondent asserts that Petitioner failed to exhaust his state remedies. As the instant 11 petition is untimely, the Court need not address if Petitioner properly exhausted his state 12 remedies. 13 III. CONCLUSION 14 As explained above, Petitioner failed to file the instant petition for Habeas Corpus within 15 the one year limitation period required by 28 U.S.C. § 2244(d). Petitioner is not entitled to the 16 benefit of statutory or equitable tolling. Based on the foregoing, the Court recommends that 17 Respondent’s motion to dismiss be granted. 18 IV. RECOMMENDATION 19 Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be 20 GRANTED and the habeas corpus petition be DISMISSED with prejudice for Petitioner’s 21 failure to comply with 28 U.S.C. § 2244(d)’s one year limitation period. 22 This Findings and Recommendation is submitted to the assigned United States District 23 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 24 Local Rules of Practice for the United States District Court, Eastern District of California. 25 Within thirty (30) days after the date of service of this Findings and Recommendation, any 26 party may file written objections with the Court and serve a copy on all parties. Such a 27 document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendation.” Replies to the Objections shall be served and filed within fourteen (14) U .S. D istrict C ourt E. D . C alifornia -6- 1 days after service of the Objections. The Finding and Recommendation will then be submitted 2 to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 3 (b)(1)(c). The parties are advised that failure to file objections within the specified time may 4 waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th 5 Cir. 1991). 6 7 8 9 10 IT IS SO ORDERED. Dated: ci4d6 May 18, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -7-