(HC) Silva v. Clay, No. 1:2009cv00976 - Document 18 (E.D. Cal. 2010)

Court Description: ORDER GRANTING Respondent's Motion to Dismiss 17 , signed by Magistrate Judge Michael J. Seng on 8/25/10: The Petition for Writ of Habeas Corpus is DISMISSED with prejudice; The Clerk of Court is DIRECTED to enter judgment; and The Court DECLINES TO ISSUE A CERTIFICATE OF APPEALABLITY. (CASE CLOSED) (Hellings, J)
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(HC) Silva v. Clay Doc. 18 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 DOUGLAS MANUEL SILVA, 13 Petitioner, 14 v. 15 16 GARY SWARTHOUT, Warden Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00976 MJS HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS [Doc. 17] 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. Petition has consented to jurisdiction of a Magistrate Judge. 21 Respondent1 is represented in this action by Brian G. Smiley, Esq., of the Office of the 22 Attorney General for the State of California. 23 I. BACKGROUND 24 Petitioner is currently in the custody of the California Department of Corrections 25 pursuant to a judgment of the Superior Court of California, County of Kings, upon pleading no 26 1 27 28 Respondent has notified the Court that Gary Swarthout is the current warden at 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 contest on July 3, 2002, to charges of residential arson. (See LD No. 1.2) Petitioner was 2 sentenced to serve a determinate term of ten years in prison. (LD Nos. 1-2.) Petitioner did not 3 appeal the February 11, 2003 amended judgment. 4 Starting in August 2007, Petitioner filed four post-conviction collateral challenges with 5 respect to the judgment in the state courts, all petitions for writ of habeas corpus, as follows: 6 1. Kings County Superior Court Filed: August 8, 20073; Denied: September 24, 2007; 2. Kings County Superior Court Filed: June 3, 20084; Denied: August 4, 2008; 3. California Court of Appeals, Fifth Appellate District Filed: September 16, 20085; Denied: September 26, 2008; 4. California Supreme Court Filed: October 13, 20086; Denied: April 1, 2009; 7 8 9 10 11 12 13 14 15 See LD Nos. 3-10. On April 30, 20097, Petitioner filed the instant federal petition for writ of habeas corpus 16 17 2 18 3 19 20 21 22 23 24 25 26 27 28 “LD” refers to the docum ents lodged by Respondent in support of his m otion to dism iss. In Houston v. Lack, the Court held that a pro se habeas petitioner's notice of appeal is deem ed filed on the date of its subm ission to prison authorities for m ailing, as opposed to the date of its receipt by the court clerk. 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988). The Ninth Circuit has applied the rule to assess the tim eliness of federal habeas filings under the AEDPA lim itations period. Huizar v. Carey, 273 F.3d 1220, 1222, (9th Cir. 2001), citing Houston, 487 U.S. 266, 276, 108 S.Ct. at 2385. Under the m ailbox rule, the Court deem s petitions filed on the date Petitioner presum ably handed his petition to prison authorities for m ailing. See also Rule 3(d) of the Rules Governing Section 2254 Cases. Although the petition was filed on August 13, 2007, pursuant to the m ailbox rule the Court considers the petition filed on August 8, 2007, the date Petitioner signed the petition. 4 Although the petition was filed on June 9, 2008, pursuant to the m ailbox rule the Court considers the petition filed on June 3, 2008, the date Petitioner signed the petition. 5 A copy of the petition was not provided to the Court. The Petitioner m ay benefit from the earlier filing of the petition, however the benefit of an earlier filing date of this application is not relevant to the statue of lim itations analysis. 6 Although the petition was filed on October 16, 2008, pursuant to the m ailbox rule the Court considers the petition filed on October 13, 2008, the date Petitioner signed the petition. 7 Although the petition was filed on May 4, 2009, under the mailbox rule the Court will consider the petition filed on April 30, 2009, the date Petitioner signed the petition. U .S. D istrict C ourt E. D . C alifornia -2- 1 in this Court. On July 2, 2010, Respondent filed a motion to dismiss the petition as being filed 2 outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). Over thirty days 3 have passed, and Petitioner has not filed an opposition to Respondent’s motion to dismiss. 4 II. DISCUSSION 5 A. Procedural Grounds for Motion to Dismiss 6 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 7 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is 8 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 9 Cases. 10 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an 11 answer if the motion attacks the pleadings for failing to exhaust state remedies or being in 12 violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th 13 Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state 14 remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural 15 grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 16 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss 17 after the court orders a response, and the Court should use Rule 4 standards to review the 18 motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 19 In this case, Respondent's motion to dismiss is based on a violation of the one-year 20 limitations period. 28 U.S.C. § 2244(d)(1). Because Respondent's motion to dismiss is similar 21 in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state 22 procedural default and Respondent has not yet filed a formal answer, the Court will review 23 Respondent’s motion to dismiss pursuant to its authority under Rule 4. 24 B. Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A) 25 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 26 of 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for 27 writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 28 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), U .S. D istrict C ourt E. D . C alifornia -3- 1 cert. denied, 118 S.Ct. 586 (1997). 2 In this case, the petition was filed on April 30, 2009, and therefore, it is subject to the 3 provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on petitioners 4 seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As 5 amended, § 2244, subdivision (d) reads: 6 7 8 (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 – (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; 9 10 (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; 11 12 13 14 (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 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 16 17 18 (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. 28 U.S.C. § 2244(d). 19 Under § 2244(d)(1)(A), the limitations period begins running on the date that the 20 petitioner’s direct review became final or the date of the expiration of the time for seeking such 21 review. In this case, Petitioner did not appeal his February 11, 2003, sentence. The state 22 appeal process became final when the time for filing an appeal expired sixty days later, on 23 April 12, 2003. See Cal. Rules of Court 8.308 (formerly Rule 30.1) The AEDPA statute of 24 limitations began to run the following day, on April 13, 2003. Patterson v. Stewart, 251 F.3d 25 1243, 1246 (9th Cir. 2001). 26 Petitioner would have one year from April 13, 2003, absent applicable tolling, in which 27 to file his federal petition for writ of habeas corpus. However, Petitioner delayed in filing the 28 instant petition until April 3, 2009, almost five years after the statute of limitations period U .S. D istrict C ourt E. D . C alifornia -4- 1 expired. Absent the later commencement of the statute of limitations or any applicable tolling, 2 the instant petition is barred by the statute of limitations. Petitioner has made no showing that 3 the statute of limitations should commence at a later date under § 2244(d)(1)(B)-(D). 4 Accordingly, Petitioner may only rely on tolling to attempt to show that is petition is not barred 5 by the statute of limitations. 6 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 7 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application for 8 State post-conviction or other collateral review with respect to the pertinent judgment or claim 9 is pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). 10 In Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a 11 petitioner is properly pursuing post-conviction relief, and the period is tolled during the intervals 12 between one state court's disposition of a habeas petition and the filing of a habeas petition 13 at the next level of the state court system. 536 U.S. 214, 216 (2002); see also Nino v. Galaza, 14 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000). Nevertheless, state 15 petitions will only toll the one-year statute of limitations under § 2244(d)(2) if the state court 16 explicitly states that the post-conviction petition was timely or was filed within a reasonable 17 time under state law. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 18 189 (2006). Claims denied as untimely or determined by the federal courts to have been 19 untimely in state court will not satisfy the requirements for statutory tolling. Id. 20 As stated above, the statute of limitations period began on April 13, 2003. Petitioner 21 filed his first state habeas petition on August 8, 2007, in the Kings County Superior Court. At 22 that point, the statute of limitations period had elapsed over three years earlier. State petitions 23 filed after the expiration of the statute of limitations period shall have no tolling effect. 24 Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 2003) ("section 2244(d) does not permit the 25 reinitiation of the limitations period that has ended before the state petition was filed."). 26 Accordingly, the limitations period began on April 13, 2003 and expired one year later 27 on April 12, 2004. The present petition was filed on April 3, 2009, nearly four years after the 28 expiration of the year statute of limitations period. Accordingly, the instant federal petition is U .S. D istrict C ourt E. D . C alifornia -5- 1 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.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Irwin v. 6 Department of Veteran Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 7 F.3d 530, 541 (9th Cir. 1998), citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th 8 Cir. 1996), cert denied, 522 U.S. 814 (1997). Petitioner bears the burden of alleging facts that 9 would give rise to tolling. Pace, 544 U.S. at 418; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th 10 Cir.1993). Petitioner has not presented any evidence regarding equitable tolling. Accordingly, 11 Petitioner is not entitled to the benefit of equitable tolling and his petition remains untimely. 12 III. Equitable Tolling CONCLUSION 13 As explained above, Petitioner failed to file the instant petition for Habeas Corpus within 14 the one year limitation period required by 28 U.S.C. § 2244(d). While Petitioner is entitled to 15 the benefit of statutory tolling, the Petition was still not timely filed. Finally, Petitioner is not 16 excused from timely filing due to equitable tolling. Based on the foregoing, Respondent’s 17 motion to dismiss shall be granted. 18 IV. CERTIFICATE OF APPEALABILITY 19 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal 20 a district court's denial of his petition, and an appeal is only allowed in certain circumstances. 21 Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining 22 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 23 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 24 25 26 27 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 28 U .S. D istrict C ourt E. D . C alifornia -6- (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– 1 2 4 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 5 (B) the final order in a proceeding under section 2255. 3 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 6 7 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 8 9 10 If a court denies a petitioner's petition, the court may only issue a certificate of 11 appealability "if jurists of reason could disagree with the district court's resolution of his 12 constitutional claims or that jurists could conclude the issues presented are adequate to 13 deserve encouragement to proceed further." Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 14 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, 15 he must demonstrate "something more than the absence of frivolity or the existence of mere 16 good faith on his . . . part." Miller-El, 123 S.Ct. at 1040. 17 In the present case, the Court finds that reasonable jurists would not find debatable or 18 wrong the Court's determination that Petitioner is not entitled to federal habeas corpus relief 19 nor would they find it deserving of encouragement to proceed further. Petitioner has not 20 made the required substantial showing of the denial of a constitutional right. Accordingly, the 21 Court hereby DECLINES to issue a certificate of appealability. ORDER 22 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The Petition for Writ of Habeas Corpus is DISMISSED with prejudice; 25 2. The Clerk of Court is DIRECTED to enter judgment; and 26 //// 27 //// 28 U .S. D istrict C ourt E. D . C alifornia -7- 1 3. The Court DECLINES to issue a certificate of appealability. 2 3 4 IT IS SO ORDERED. 5 Dated: ci4d6 August 25, 2010 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 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 -8-