(HC) Corley v. Dickinson, No. 1:2009cv01607 - Document 29 (E.D. Cal. 2010)

Court Description: ORDER DENYING 28 Petitioner's Motion fo the Appointment of Counsel; ORDER GRANTING 15 Respondent's Motion to Dismiss Petition as untimely; ORDER DIRECTING the Clerk to Enter Judgment In Favor of Respondent; **ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY**, signed by Magistrate Judge Sheila K. Oberto on 10/19/2010.CASE CLOSED (Martin, S)
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(HC) Corley v. Dickinson Doc. 29 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 ANTHONY LEE CORLEY, 11 Petitioner, 12 v. 13 14 15 MATTHEW CATE, Secretary of the California Department of Corrections and Rehabilitation, 16 Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01607-SKO-HC ORDER DENYING PETITIONER’S MOTION FOR THE APPOINTMENT OF COUNSEL (DOC. 28) ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION AS UNTIMELY (DOC. 15) ORDER DIRECTING THE CLERK TO ENTER JUDGMENT IN FAVOR OF RESPONDENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 18 19 Plaintiff is a state prisoner proceeding pro se and in forma 20 pauperis with a petition for writ of habeas corpus pursuant to 28 21 U.S.C. § 2254. 22 have consented to the jurisdiction of the United States 23 Magistrate Judge to conduct all further proceedings in the case, 24 including the entry of final judgment, by manifesting their 25 consent in writings signed by the parties or their 26 representatives and filed by Petitioner on September 21, 2009, 27 and on behalf of Respondent on February 10, 2010. 28 Pursuant to 28 U.S.C. § 636(c)(1), the parties Pending before the Court is Respondent’s motion to dismiss 1 Dockets.Justia.com 1 the petition for untimeliness, which was filed on March 9, 2010, 2 along with lodged documents. 3 numerous exhibits on March 26, 2010. 4 May 5, 2010. 5 Respondent filed a supplemental brief and additional 6 documentation of the state court proceedings on July 12, 2010; 7 Petitioner filed a response and a request for appointment of 8 counsel on July 22, 2010. 9 10 I. Petitioner filed an opposition with Respondent filed a reply on Thereafter, in response to the Court’s direction, Motion for Appointment of Counsel In the forty-five-page supplemental response filed on July 11 22, 2010, Petitioner requests that counsel be appointed in order 12 for him to be fairly represented in this Court. (Doc. 28, 2.) 13 There currently exists no absolute right to appointment of 14 counsel in habeas proceedings. 15 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958); 16 Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469 17 U.S. 823 (1984). 18 See e.g., Anderson v. Heinze, 258 A Magistrate Judge may appoint counsel at any stage of a 19 habeas corpus proceeding if the interests of justice require it. 20 18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254 21 Cases (Habeas Rules). 22 of a petitioner’s success on the merits and the ability of a 23 petitioner to articulate his claims pro se in light of the 24 complexity of the legal issues involved. 25 F.2d 952, 954 (9th Cir. 1983). 26 A district court evaluates the likelihood Weygandt v. Look, 718 Here, the Respondent has not filed a response to the 27 petition concerning the merits of the case, but it does not 28 appear that an evidentiary hearing is necessary. 2 The issues 1 raised in the motion to dismiss have been the subject of 2 extensive briefing and documentation. 3 it does not appear that the interests of justice require the 4 appointment of counsel. 5 6 At this stage of the case, Accordingly, Petitioner’s motion for the appointment of counsel will be denied. 7 II. Motion to Dismiss for Untimeliness 8 Respondent has filed a motion to dismiss the petition on the 9 ground that Petitioner filed his petition outside of the one-year 10 11 limitation period provided for in 28 U.S.C. § 2244(d). Habeas Rule 4 allows a district court to dismiss a petition 12 if it “plainly appears from the face of the petition and any 13 exhibits annexed to it that the petitioner is not entitled to 14 relief in the district court....” 15 The Ninth Circuit has allowed respondents to file motions to 16 dismiss pursuant to Rule 4 instead of answers if the motion to 17 dismiss attacks the pleadings by claiming that the petitioner has 18 failed to exhaust state remedies or has violated the state’s 19 procedural rules. 20 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 21 a petition for failure to exhaust state remedies); White v. 22 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 23 review a motion to dismiss for state procedural default); Hillery 24 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 25 Thus, a respondent may file a motion to dismiss after the Court 26 orders the respondent to respond, and the Court should use Rule 4 27 standards to review a motion to dismiss filed before a formal 28 answer. See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n. 12. 3 1 In this case, Respondent's motion to dismiss addresses the 2 filing of a petition outside of the one-year limitation period of 3 28 U.S.C. 2244(d)(1). 4 are mainly to be found in copies of the official records of state 5 judicial proceedings which have been provided by Respondent and 6 Petitioner, and as to which there is no factual dispute. 7 Respondent has not filed a formal answer, and because 8 Respondent's motion to dismiss is similar in procedural standing 9 to a motion to dismiss for failure to exhaust state remedies or The material facts pertinent to the motion Because 10 for state procedural default, the Court will review Respondent’s 11 motion to dismiss pursuant to its authority under Rule 4. 12 III. The Limitations Period 13 On April 24, 1996, Congress enacted the Antiterrorism and 14 Effective Death Penalty Act of 1996 (AEDPA), which applies to all 15 petitions for writ of habeas corpus filed after its enactment. 16 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 17 F.3d 1484, 1499 (9th Cir. 1997). 18 for writ of habeas corpus on June 24, 2009. 19 applies to the petition. 20 Petitioner filed his petition Thus, the AEDPA The AEDPA provides a one-year period of limitation in which 21 a petitioner must file a petition for writ of habeas corpus. 22 U.S.C. § 2244(d)(1). 23 proceedings for collateral review as a basis for tolling the 24 running of the period. 25 26 It further identifies the pendency of some As amended, subdivision (d) provides: (d)(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 –- 27 28 28 (A) the date on which the judgment became final by the conclusion of direct review or the expiration 4 1 of the time for seeking such review; 2 (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; 3 4 5 6 7 (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 8 9 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 10 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 28 U.S.C. § 2244(d). 14 IV. Commencement of the Running of the Statutory Period 15 Pursuant to § 2244(d)(1)(A), the limitation period runs from 16 the date on which the judgment became final. 17 The parties disagree on the date of the finality of the 18 judgment and, specifically, the date on which direct review was 19 concluded, or the point at which the time for seeking direct 20 review expired within the meaning of § 2244(d)(1)(A). Respondent 21 contends that the statute began to run on the date the time for 22 seeking direct review expired, namely, sixty days after 23 sentencing pursuant to state law1 that sets forth the time limit, 24 25 26 27 1 Cal. Rules of Court, Rule 8.308 provides in part that except as otherwise provided by law, a notice of appeal and any statement required by Cal. Pen. Code § 1237.5 must be filed within sixty (60) days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 (emergencies), no court may extend the time to file a notice of appeal. 28 5 1 or on January 16, 2006. 2 Superior Court a “Notice of Appeal/Certificate of Probable Cause” 3 on December 22, 2005 pursuant to Cal. Pen. Code § 1237.5 and thus 4 filed a timely appeal from the judgment of November 17, 2005; 5 therefore, direct review did not conclude, or if it did, he was 6 denied his right to appeal. 7 A. Factual Summary 8 An abstract of judgment of the Superior Court of the County 9 Petitioner asserts that he filed in the of Stanislaus in cases numbered 1086806 and 1099101 that was 10 filed on November 17, 2005, reflects that upon his plea of 11 guilty, Petitioner was convicted of selling in 2004 a controlled 12 substance in violation of Cal. Health & Saf. Code § 11352(a), and 13 possessing in 2005 marijuana in jail in violation of Cal. Pen. 14 Code § 4573.6. 15 2005, Petitioner was sentenced to a determinate term of thirteen 16 years in prison. (Id.) 17 (LD 1, Petr’s Opp., Ex. 1.)2 On November 17, Petitioner has submitted a copy of a Superior Court form for 18 a notice of appeal and request for certificate of probable cause 19 that bears the case number pertaining to the charge of sale of a 20 controlled substance, Petitioner’s signature, and a date of 21 December 22, 2005. 22 the request for certificate of probable cause, Petitioner stated 23 that the legality of his plea was affected by his public 24 defender’s failure to move to suppress unspecified evidence, move (Petr.’s Opp., Ex. 3, Doc. 16, 11-20.) In 25 26 27 28 2 References to the documentation lodged by Respondent in support of the motion will be to “LD” (lodged documents) and to the numbers assigned in Respondent’s notice of lodging documents received on April 7, 2010. References to the exhibits submitted by Petitioner in support of, and as part of, his opposition to the motion will be to the exhibits by the numbers assigned by Petitioner. 6 1 to dismiss the case, and seek reduced bail, requests which the 2 state court had denied when Petitioner himself requested them. 3 Petitioner criticized the evidence of the drug transaction (a 4 videotaped transfer of funds to Petitioner which Petitioner says 5 does not disclose a drug transaction) and the potential use of 6 prior robbery convictions or “strikes” to enhance his sentence. 7 A copy of a memo dated January 4, 2006, to an unspecified 8 recipient, states that Petitioner was sending a copy of his 9 appeal that he had already sent on December 22, 2005, and was 10 notifying the Superior Court that he had been moved to Vacaville. 11 (Petr.’s Ex. II, Doc. 16, 11-20.) 12 A copy of a minute order and an appellate department 13 memorandum of the Stanislaus County Superior Court (SCSC) dated 14 January 10, 2006, reflects that the request for probable cause 15 was denied. 16 clerk of the SCSC wrote Petitioner on January 12, 2006, informing 17 him that his notice of appeal was “inoperative pursuant to CRC 18 Rule 30(b)(1) as your Request for Certificate of Probable Cause 19 was denied.” 20 as inoperable. (Petr.’s Exh. 2, Doc. 16, pp. 22-23.) A deputy The deputy returned the notice to Petitioner marked (LD 3.) 21 On January 3, 2006, Petitioner moved in the SCSC for an 22 order directing his public defender at the trial level to furnish 23 his trial files to Petitioner because despite attempts by 24 Petitioner and his wife to contact counsel by telephone or to 25 obtain the case files during a few attorney visits, Petitioner 26 did not obtain the files; Petitioner sought to present a direct 27 or collateral challenge to his conviction and sentence. 28 28, 24-27.) (Doc. Petitioner simultaneously moved for production of a 7 1 transcript of the proceedings in order to prepare a petition for 2 writ of habeas corpus. 3 by an undated order. 4 (Id. at 29-34.) The motions were denied (Id. at 35.) A docket (register of actions) of the Court of Appeal of the 5 State of California, Fifth Appellate District (DCA) lodged by 6 Respondent (LD 2) reflects that a notice of appeal was lodged or 7 received by the DCA on February 22, 2006, along with a motion to 8 withdraw a guilty plea and notice of motion to appeal. 9 of February 22, 2006 is described as “Ruling on motion,” and the A ruling 10 notes state, “To withdraw guilty plea & motion to appeal - 11 timeless.” 12 order of the DCA filed on February 24, 2006, set a deadline for 13 briefing the issue of the timeliness of the filing of the notice 14 of appeal. 15 abstract of judgment was filed on November 17, 2005, “... the 16 notice of appeal was filed on February 16, 2006....” 17 the order, the DCA requested briefing on whether or not the 18 notice of appeal was timely filed and, if the answer to the first 19 question was negative, then whether the appeal should be 20 dismissed as untimely. 21 v. Everett, 186 Cal.App.3d 274, 279 (1986), the DCA denied 22 Petitioner’s request for the DCA to issue a certificate of 23 probable cause “without prejudice to petitioner filing a petition 24 for writ of mandate challenging the superior court’s denial of 25 the request filed in that court.” 26 No order of that date is submitted. However, an (LD 2.) In that order, it is stated that although the (Id.) (Id.) In In the same order, citing People (Id.) When no response to the briefing order was received by the 27 DCA, it ordered the appeal dismissed by order filed on March 20, 28 2006, and docketed on March 21, 2006. 8 (Id.) 1 2 3 4 5 By order filed on April 19, 2006, the DCA issued the following order concerning subsequently filed motions: The appeal in the above-entitled action was dismissed on March 20, 2006, due to appellant’s failure to [sic] timely respond to this court’s order of February 24, 2006. In the three motions filed in this court on April 5, 2006, appellant has failed to show the notice of appeal was timely filed. 6 7 8 The “Motion To Proceed On Appeal,” filed on April 5, 2006, is denied. The “Motion for Request [For] An Order Extending Time...” filed on April 5, 2006, is denied. 9 10 11 12 13 The “Motion To Furnish Appellant With The State Record...,” filed on April 5, 2006, is denied. The above motions are denied without prejudice to appellant filing a petition for writ of habeas corpus in this court in which the relief sought is permission to file a belated notice of appeal. This court expresses no opinion on whether relief will be granted in the event a petition is filed. (Emphasis added.) 14 (LD 2.) The docket indicates that on May 22, 2006, the 15 remittitur issued. 16 In March 2007, an entry reflects that a letter was sent to 17 Petitioner in response to an inquiry from Petitioner in 18 connection with a request for counsel and for rules. The letter 19 referred to the previous dismissal of his appeal and denial of 20 his motions, and it was suggested that Petitioner’s remaining 21 remedy might be a petition for writ of habeas corpus seeking to 22 file a belated appeal. (LD 2.) 23 B. Analysis 24 The Superior Court declined to issue a certificate of 25 probable cause in early January. Although Petitioner argues that 26 he had begun appellate proceedings in a proper fashion, Cal. Pen. 27 Code § 1237.5 prohibits a defendant’s taking an appeal from a 28 9 1 judgment of conviction upon a plea of guilty except where 1) the 2 defendant has filed with the trial court a written statement, 3 executed under oath or penalty of perjury showing reasonable 4 constitutional, jurisdictional, or other grounds going to the 5 legality of the proceedings, and 2) the trial court has executed 6 and filed a certificate of probable cause for such appeal with 7 the clerk of the court. 8 of appeal in the Superior Court occurred within the sixty-day 9 period for filing a notice of appeal, the trial court declined to Even if the initial filing of a notice 10 issue a certificate of probable cause for Petitioner’s appeal 11 from his guilty plea and returned his notice of appeal marked as 12 “inoperative.” 13 appeal expired. 14 A few days later, the time for filing a notice of Petitioner has not demonstrated that he sought relief from 15 the Superior Court’s denial of a certificate of probable cause or 16 heeded the very specific suggestion of the DCA to seek a writ of 17 mandate directing the Superior Court to issue a certificate of 18 probable cause. 19 It thus does not appear that Petitioner has shown that he 20 timely filed an operative notice of appeal from the judgment of 21 conviction. 22 With respect to the out-of-time notice of appeal filed in 23 the DCA in February 2006, the DCA expressly considered whether 24 the notice of appeal was timely and concluded that Petitioner had 25 not shown that it was timely. 26 Under § 2244(d)(1)(A), the “judgment” refers to the sentence 27 imposed on the petitioner. 28 57 (2007). Burton v. Stewart, 549 U.S.147, 156- Petitioner failed to obtain a certificate of probable 10 1 cause to proceed with an appeal from the judgment in the Superior 2 Court, suffered a dismissal of the appeal in the DCA after 3 failing to respond to the Court’s orders, and ultimately received 4 an express ruling from the DCA that his appeal was not shown to 5 have been timely. 6 In Randle v. Crawford, 578 F.3d 1177 (9th Cir. 2009), the 7 petitioner failed to file a timely notice of direct appeal but 8 argued that the running of § 2244(d) was tolled by the pendency 9 of an untimely appeal until the appeal was dismissed by the state 10 court as untimely. 11 court's dismissal of an untimely appeal does not constitute the 12 conclusion of direct review within the meaning of 28 U.S.C. 13 § 2244(d)(1)(A). 14 one-year limitations period was contingent on the resolution of a 15 petitioner's attempt to file an untimely notice of appeal, a 16 petitioner could indefinitely delay the commencement of the 17 one-year period by simply waiting to file a notice until after 18 the normal expiration date. 19 undermine the statute of limitations for federal habeas 20 petitions. 21 The court in Randle concluded that a state The court noted that if the commencement of the Sanctioning this procedure would Randle, 578 F.3d at 1183. Because in the instant case Petitioner’s appeal was 22 determined not to have been timely, the judgment of November 17, 23 2005, became final at the expiration of the time for seeking 24 direct review, or on January 16, 2006, sixty days after the date 25 of the judgment. 26 the following day, January 17, 2006. 27 /// 28 /// The one-year limitations period began to run on 11 1 V. Statutory Tolling for Petitioner’s State Post-Conviction Petitions for Collateral Relief 2 Title 28 U.S.C. § 2244(d)(2) states that the “time during 3 which a properly filed application for State post-conviction or 4 other collateral review with respect to the pertinent judgment or 5 claim is pending shall not be counted toward” the one-year 6 limitation period. 28 U.S.C. § 2244(d)(2). Once a petitioner is 7 on notice that his habeas petition may be subject to dismissal 8 based on the statute of limitations, he has the burden of 9 demonstrating that the limitations period was sufficiently tolled 10 by providing the pertinent facts, such as dates of filing and 11 denial. However, the state must affirmatively argue that the 12 petitioner failed to meet his burden of alleging the tolling 13 facts; simply noting the absence of such facts is not sufficient. 14 Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002). 15 A. Facts 16 It is undisputed that Petitioner filed, and received rulings 17 with respect to, numerous post-conviction petitions in the state 18 courts and in this Court. 19 A first petition for habeas corpus was filed in the DCA on 20 July 12, 2006 (no. F050826), in which Petitioner sought a late 21 appeal. (LD 3.) On October 5, 2006, the petition was denied 22 without prejudice to Petitioner’s raising the issue of 23 ineffective assistance of counsel, including but not limited to 24 representation at sentencing and failure to file a motion to 25 suppress, in a petition for writ of habeas corpus filed first in 26 the Superior Court. (LD 4.) 27 Before the first petition was denied by the DCA, Petitioner 28 12 1 filed on August 2, 2006, a second petition (no. F050971) in the 2 DCA in which he sought a late appeal. 3 2006, the same day on which the first petition was denied, the 4 second petition was denied as moot. 5 (LD 5.) On October 5, (LD 6.) On October 24, 2006, Petitioner filed a third state 6 petition, but this time the petition was filed in the SCSC (no. 7 1086806, stamped filed on November 6, 2006). (Supp. LD 34.) 8 Petitioner requested allowance of a late notice of appeal to 9 raise issues including, but not limited to, ineffective 10 assistance of counsel at sentencing, failure to file a motion to 11 suppress, and failure to perform his promise to file an appeal. 12 (LD 34.) 13 determining that the Superior Court no longer had jurisdiction 14 over the issue of a late appeal, Petitioner’s counsel was not 15 ineffective because there was no basis for any motion to 16 suppress, and Petitioner’s counsel was not ineffective at 17 sentencing because Petitioner had faced a sentence of twenty- 18 eight (28) years to life but received only thirteen (13) years. 19 (LD 35.) 20 On November 15, 2006, the SCSC denied the petition, On November 15, 2006, the same date the third petition was 21 denied by the SCSC, Petitioner filed a fourth state petition for 22 writ of habeas corpus in the SCSC (no. 1086806, stamped filed on 23 November 29, 2006), challenging the trial court’s rulings at the 24 preliminary hearing and on discovery issues, the validity of 25 Petitioner’s plea, and the conduct of the prosecutor and 26 Petitioner’s counsel. 27 January 3, 2007. 28 (LD 7.) The petition was denied on (LD 8.) Although Petitioner purported to file in the DCA an appeal 13 1 of the SCSC’s denial of his fourth petition (no. F052146, 2 docketed as filed on February 1, 2007), it was dismissed by order 3 dated April 12, 2007, because under California law, the denial of 4 a petition for a writ of habeas corpus was not an appealable 5 order. 6 of habeas corpus in the appellate court raising the same issues 7 as those first raised in the Superior Court. (LD 9.) 8 9 Petitioner was instructed to file a new petition for writ Petitioner’s fifth state petition was filed in the DCA on April 24, 2007 (no. F052772, stamped filed on May 2, 2007). In 10 the petition, Petitioner raised the issues that had been raised 11 before the SCSC that had been denied in January 2007. 12 The petition was denied without any statement of reasons or 13 citation to any authority on May 17, 2007. 14 (LD 10.) (LD 11.) Petitioner’s sixth state petition was filed in the 15 California Supreme Court on June 13, 2007 (no. S153676, stamped 16 filed on June 21, 2007). 17 raised and denied in the DCA. 18 December 19, 2007, with citation of In re Swain, 34 Cal.2d 300, 19 304 (1949) and People v. Duvall, 9 Cal.4th 464, 474 (1995). 20 13.) 21 (LD 12.) Petitioner raised the issues The petition was denied on (LD Petitioner filed a seventh state petition on August 21, 22 2007, in the SCSC (no. 1086807, stamped filed on August 27, 23 2007), in which he raised sentencing error concerning the choice 24 of term and use of prior convictions, including error pursuant to 25 Cunningham v. California, 549 U.S. 270 (2007). 26 petition was denied by order dated September 7, 2007. (LD 14.) The (LD 15.) 27 On September 29, 2007, Petitioner filed an eighth state 28 petition (no. F053873, stamped filed on October 4, 2007), seeking 14 1 in the DCA relief with respect to the sentencing errors and 2 Cunningham issues previously raised in the SCSC. 3 petition was denied by the DCA on October 18, 2007, without any 4 statement of reasons or citation to authority. (LD 16.) The (LD 17.) 5 Petitioner filed a ninth state petition in the DCA on April 6 1, 2009 (no. F057342, stamped filed on April 10, 2009), in which 7 he challenged the denial of his right to counsel with respect to 8 issuance of a certificate of probable cause for the appeal from 9 the trial court’s judgment. 10 (LD 18.) The petition was denied without any statement of reasons on April 23, 2009. 11 Petitioner filed a tenth petition for writ of habeas corpus 12 in the California Supreme Court on June 21, 2009 (no. S174166, 13 stamped filed on June 25, 2009), in which he raised all his 14 claims concerning the pre-plea, plea, and sentencing proceedings, 15 and sought reinstatement of his direct appeal. 16 petition was denied on November 10, 2009, without notations. 17 21.) 18 19 20 (LD 20.) The (LD Petitioner also filed three petitions for habeas relief in this Court, which were denied. A petition in Corley v. Smith, 1:07-cv-01540-YNP, was filed 21 on September 29, 2007 (stamped filed on October 3, 2007), and was 22 dismissed for failure to state a claim upon which relief could be 23 granted on June 10, 2008. (LD 22-25.) 24 A petition in Corley v. Knowles, 1:08-cv-00266-TAG, was 25 filed on January 6, 2008 (stamped filed on February 7, 2008), and 26 was dismissed on February 26, 2009, for failure to exhaust state 27 court remedies. (LD 26-29.) 28 15 1 A petition in Corley v. Knowles 1:08-cv-00544-YNP was filed 2 on February 23, 2008 (stamped filed on April 7, 2008), and was 3 dismissed for failure to exhaust state court remedies on January 4 13, 2009. 5 6 7 8 9 10 (LD 30-33.) B. Analysis As previously discussed, the statutory period began running on January 17, 2006. Petitioner filed3 his first state petition on July 12, 2006. A total of 176 days of the limitation period passed before Petitioner filed his first petition. 11 Pursuant to § 2244(d)(2), the time during which a properly 12 filed application for state post-conviction or other collateral 13 review is pending shall not be counted toward the one-year 14 limitation period. 15 544 U.S. 408, 410 (2005). 16 that Petitioner is entitled to tolling pursuant to § 2244(d)(2) 17 for the time during which Petitioner’s properly filed first 18 petition was pending, namely, from July 12, 2006, through October 19 5, 2006, the date on which it was denied. 20 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, Thus, Respondent correctly contends With respect to Petitioner’s second state petition, the 21 Court notes that the second petition was filed in August 2006 22 while the first state petition was pending, and the second 23 petition was denied on October 5, 2006, the same date on which 24 the first state petition was denied. Thus, the pendency of the 25 3 26 27 28 The Court affords petitioner application of the mailbox rule as to all his habeas filings in state and federal courts. 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); Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule applies to pro se prisoner who delivers habeas petition to prison officials for the Court within limitations period). 16 1 second state petition did not affect the tolling of the statute, 2 which was already occurring by virtue of the pendency of the 3 first state petition. 4 Petitioner’s first and second petitions were filed in the 5 DCA. 6 2006, in the SCSC. 7 tolling between the denials of the first and second state 8 petitions on October 5, 2006, and the filing of the third state 9 petition in the SCSC. 10 Petitioner’s third state petition was filed on October 24, Petitioner might seek to establish continuous However, reference to the pertinent legal principles forecloses such an application of § 2244(d). 11 In Carey v. Saffold, 536 U.S. 214 (2002), the Court held 12 that an application is “pending” until it “has achieved final 13 resolution through the State's post-conviction procedures.” 14 U.S. 220. 15 until a state petitioner “completes a full round of collateral 16 review.” 17 delay, an application for post conviction relief is pending 18 during the “intervals between a lower court decision and a filing 19 of a new petition in a higher court” and until the California 20 Supreme Court denies review. 21 F.3d 1045, 1048 (9th Cir. 2003). 22 536 An application does not achieve the requisite finality Id. at 219-20. Accordingly, in the absence of undue Id. at 223; Biggs v. Duncan, 339 However, when one full round up the ladder of the state 23 court system is complete and the claims in question are 24 exhausted, a new application in a lower court begins a new round 25 of collateral review. 26 example, the statute of limitations is not tolled from the time a 27 final decision is issued on direct state appeal and the time the Biggs v. Duncan, 339 F.3d at 1048. 28 17 For 1 first state collateral challenge is filed because there is no 2 case “pending” during that interval. 3 1003, 1006 (9th Cir. 1999). 4 Nino v. Galaza, 183 F.3d Here, when Petitioner filed the third state petition in the 5 state trial court, Petitioner began a new round of collateral 6 review. 7 eighteen (18) days between the DCA’s denials of the first and 8 second state petitions on October 6, 2006, and Petitioner’s 9 filing of a third state petition in the SCSC on October 24, 2006, 10 11 Thus, the Court concludes that during the period of the running of the statute of limitations was not tolled. It is not contended that the third state petition was 12 improperly filed. 13 in the SCSC on October 24, 2006, the running of the statute was 14 tolled until the denial of that petition on November 15, 2006. 15 Thus, once the third state petition was filed Respondent does not contend that the fourth state petition 16 filed on November 15, 2006, was not properly filed, although 17 Respondent states that the petition is successive; Respondent 18 assumes “for the sake of argument that Petitioner receives 19 statutory tolling for his fourth petition” (Supp. Brf., doc. 26, 20 8), which was pending until January 3, 2007. 21 The Court notes that although the SCSC denied the fourth 22 petition, the SCSC did not decline to consider the petition 23 because it was successive. 24 numerous issues on the merits, and it denied the petition with 25 respect to some of the other issues because the issues had been 26 raised previously and had been addressed by the court. 27 It does not appear that the SCSC considered the petition to be Instead, the court considered 28 18 (LD 8.) 1 successive. 2 assumption that the pendency of the fourth state petition from 3 November 15, 2006, through January 3, 2007, tolled the running of 4 the statute. 5 Therefore, the Court will accept the Respondent’s With respect to tolling of the time period between the 6 denial of his fourth state petition on January 3, 2007, and the 7 filing of his fifth state petition on April 24, 2007, the Court 8 notes that the time interval was 110 days. 9 An application for collateral review is “pending” in state 10 court “as long as the ordinary state collateral review process is 11 ‘in continuance’-i.e., ‘until the completion of’ that process.” 12 Carey v. Saffold, 536 U.S. 214, 219-20 (2002). 13 this means that the statute of limitations is tolled from the 14 time the first state habeas petition is filed until the 15 California Supreme Court rejects the petitioner's final 16 collateral challenge, as long as the petitioner did not 17 “unreasonably delay” in seeking review. 18 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 19 In California, Id. at 221-23; accord, Thus, the Court must determine whether a petitioner “delayed 20 ‘unreasonably’ in seeking [higher state court] review.” 21 536 U.S. at 225. 22 the application would no longer have been “pending” during the 23 period at issue. 24 on a petitioner's delay, as is the case here where the fifth 25 petition was denied without any statement of reasoning or 26 authority, the federal court must evaluate all “relevant 27 circumstances” and independently determine whether the delay was Carey, If a petition is deemed unreasonably delayed, Id. If the state court does not clearly rule 28 19 1 “unreasonable.” Id. at 226. 2 A delay of six months has been found to be unreasonable 3 because it is longer than the relatively short periods of thirty 4 (30) or sixty (60) days provided by most states for filing 5 appeals. 6 one hundred fifteen (115) and one hundred one (101) days between 7 denial of one petition and the filing of a subsequent petition 8 have been held to be excessive, Chaffer v. Prosper, 592 F.3d. 9 1046, 1048 (9th Cir. 2010). Evans v. Chavis, 546 U.S. 189, 201 (2006). Delays of Unexplained, unjustified periods of 10 ninety-seven (97) and seventy-one (71) days have been found to be 11 unreasonable, Culver v. Director of Corrections, 450 F.Supp.2d 12 1135, 1140 (C.D.Cal. 2006). 13 The Court therefore concludes that the unexplained delay of 14 110 days before the filing of the fifth petition on April 24, 15 2007, was unreasonable, and the running of the statute was not 16 tolled between denial of the fourth state petition and the filing 17 of the fifth state petition. 18 Petitioner’s attempt to appeal the SCSC’s denial of the 19 fourth state petition does not serve to toll the running of the 20 limitations period because it was not properly filed. 21 application is “properly filed” within the meaning of § 2244(d) 22 when its delivery and acceptance are in compliance with the 23 applicable laws and rules governing filings, including time 24 limits upon its delivery. 25 (2000). 26 it was taken from a nonappealable order. 27 determined that Petitioner’s ineffective appeal was not properly An Artuz v. Bennett, 531 U.S. 4, 8, 11 The DCA dismissed Petitioner’s purported appeal because 28 20 Thus, the state court 1 2 filed. Respondent does not challenge the propriety of Petitioner’s 3 filing of the fifth and sixth state petitions in the DCA and 4 California Supreme Court, respectively. 5 was signed by Petitioner on April 24, 2007, and it remained 6 pending until it was denied on May 17, 2007. 7 petition was signed on June 13, 2007, and it was denied on 8 December 19, 2007. 9 between the denial of the fifth in mid-May and the filing of the The fifth state petition The sixth state In view of the reasonable time interval 10 sixth in mid-June, Petitioner is entitled to statutory tolling 11 based on the pendency of the fifth and sixth petitions from April 12 24, 2007, through December 19, 2007. 13 Pursuant to Cal. Rules of Court, Rule Rule 8.532(b)(2)(C), 14 the decision of the California Supreme Court denying the petition 15 for writ of habeas corpus on December 19, 2007, was final 16 immediately upon filing. 17 2007, the first day following the denial of the petition for writ 18 of habeas corpus. 19 Thus, tolling ceased on December 20, Further, the fourth through sixth petitions constituted one 20 round of review; after the denial of the sixth petition by the 21 California Supreme Court on December 19, 2007, no petition was 22 then pending. 23 and the beginning of a second round is not tolled. 24 Ramirez, 340 F.3d 817, 820 (9th Cir. 2003). 25 The time between the completion of a first round Delhomme v. The periods during which the seventh and eighth petitions 26 were pending (August 21, 2007 through September 7, 2007, in the 27 SCSC, and September 29, 2007 through October 18, 2007, in the 28 21 1 DCA, respectively) occurred within the period of time within 2 which the fifth and sixth petitions were pending. 3 pendency of the seventh and eighth state petitions had no 4 additional effect on the running of the statute, which was tolled 5 until the denial of the sixth petition on December 19, 2007. 6 Thus, the In summary, three hundred and four (304) days of the one- 7 year period ran as follows: 176 days from January 17, 2006, 8 through July 11, 2006, when the first petition was filed; 9 eighteen (18) days between October 6, 2006 and October 23, 2006, 10 after which the third petition was filed; and 110 days between 11 the denial of the fourth petition on January 3, 2007, and the 12 filing of the fifth petition on April 24, 2007. 13 the denial by the California Supreme Court of the sixth petition 14 on December 19, 2007, the statutory period began to run again, 15 with the year-long limitations period concluding sixty-one days 16 later on February 18, 2008. 17 Thereafter, upon Petitioner’s ninth petition was not filed in the DCA until 18 April 1, 2009. 19 before Petitioner’s ninth petition was filed. 20 Thus, the one-year limitations period had passed Although Petitioner filed three previous habeas petitions 21 here, the pendency of a petition in a federal court does not toll 22 the running of the statute under 28 U.S.C. § 2244(d)(2). 23 v. Walker, 533 U.S. 167, 172 (2001). Duncan 24 In summary, the Court concludes that considering statutory 25 tolling, Petitioner’s petition for writ of habeas corpus, filed 26 here on June 21, 2009 (Pet. 7), was filed outside of the one-year 27 limitations period and is therefore untimely. 28 22 1 VI. 2 Petitioner alleged in a declaration in the petition that Equitable Tolling 3 after his conviction, he requested his counsel, Gary Smith, to 4 file a notice of appeal, but Smith failed to do so. 5 Petitioner declared that if his appeal had been filed, counsel 6 would have been appointed, the direct appeal would have gone 7 forward, and Petitioner would have had the benefit of a more 8 favorable standard of prejudicial error. 9 (Pet. 84.) (Id.) In the opposition to the motion, Petitioner asserted that he 10 was denied the effective assistance of counsel on appeal as well 11 as the right to appeal, and that he did what was necessary to 12 file a timely appeal and to attempt repeatedly to obtain his 13 trial counsel’s trial files in order to permit the perfection of 14 an appeal or petition for writ of habeas corpus. 15 trial court denied his application for an order to obtain the 16 files on January 3, 2006. 17 In Opp., doc. 28.) 18 pertain to Petitioner’s first appeal of right in the state court 19 system. 20 documentation of the pertinent facts concerning the trial court’s 21 denial of a certificate of probable cause and Petitioner’s 22 motions to obtain transcripts and counsel’s legal files in order 23 to perfect a habeas corpus petition. 24 25 26 27 However, the (Opp. Doc. 16, 2-4, 25; Supp. Brief. The Court understands these assertions to In his supplemental briefing, Petitioner resubmits his The Court will consider these allegations as the basis of an assertion of the doctrine of equitable tolling. The one-year limitations period of § 2244 is subject to equitable tolling where the petitioner has been diligent, and 28 23 1 extraordinary circumstances, such as the egregious misconduct of 2 counsel, have prevented the petitioner from filing a timely 3 petition. 4 petitioner must show that the extraordinary circumstances were 5 the cause of his untimeliness and that the extraordinary 6 circumstances made it impossible to file a petition on time. 7 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). 8 diligence required for equitable tolling is reasonable diligence, 9 not “maximum feasible diligence.” 10 11 Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). The The Holland v. Florida, 130 S.Ct. 2565. “[T]he threshold necessary to trigger equitable tolling 12 [under AEDPA] is very high, lest the exceptions swallow the 13 rule.” 14 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). 15 Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v. Here, Petitioner relies on his entitlement to counsel on a 16 first appeal of right. 17 absence of counsel and the denial of his certificate of probable 18 cause or appeal in December 2005 and January 2006 were 19 responsible for Petitioner’s failure to file a timely federal 20 petition years later. 21 mandate directing the trial court to issue a certificate of 22 probable cause. 23 caused his failure to do so, or how the preceding absence of 24 counsel contributed to his failure to seek relief. 25 Petitioner has not explained his delay in filing a petition for 26 writ of habeas corpus seeking a late appeal. 27 Petitioner has not demonstrated that any extraordinary However, Petitioner has not shown how the Petitioner was advised to seek a writ of However, Petitioner has not explained what 28 24 Likewise, Similarly, 1 circumstance prevented him from filing any post-conviction 2 petitions in the state courts at any point in time or from filing 3 a timely federal petition. 4 Thus, even assuming that counsel’s conduct in failing to 5 file a notice of appeal was substandard conduct, Petitioner has 6 not shown how that failure prevented the filing of a timely 7 petition. 8 F.3d 1057 (9th 2010), in which counsel’s failure to perfect a 9 state appeal of right and incorrect advice on the time limit for The instant case is similar to Randle v. Crawford, 604 10 filing a state post-conviction petition were found to have little 11 to no bearing on the petitioner’s failure to file timely a 12 federal petition. 13 Cir. 2010.) 14 indication that counsel’s failure to turn over timely a legal 15 file had any specific effect on the ability of Petitioner to file 16 a timely federal petition. 17 Randle v. Crawford, 604 F.3d 1047, 1058 (9th This case is also similar because there is no Id. Petitioner’s pro se status is not an extraordinary 18 circumstance. 19 2010). 20 Chaffer v. Prosper, 592 U.S. 1046, 1049 (9th Cir. With respect to Petitioner’s lack of transcripts or his 21 attorney’s legal files, it is established that in some 22 circumstances, lack of access to legal files can constitute an 23 external impediment sufficiently extraordinary to support 24 equitable tolling. 25 Cir. 2010). 26 demonstrate his own diligence and that the lack of access was the 27 extraordinary circumstance that caused his petition to be filed Chaffer v. Prosper, 592 U.S. 1046, 1049 (9th However, it is necessary for a petitioner to 28 25 1 as late as it was. 2 to specific instances in which he was unable to file a timely 3 federal petition because of the lack of access to a particular 4 document. 5 alleged numerous claims concerning the pre-plea, plea, and 6 sentencing proceedings of his case without difficulty, and he 7 does not point out a single instance of need for a particular 8 document. 9 Id. Id. This means that a petitioner must point Petitioner makes no such showing. Petitioner has Although Petitioner has demonstrated that during the period 10 for filing an appeal he diligently requested a counsel’s files 11 and transcripts, he never specified any particular documents that 12 were needed. 13 obtain specific documents from counsel or that he needed 14 particular documents in order to file a federal petition. 15 Petitioner has attached some transcripts and records from his 16 trial court proceedings; thus, it appears that he has had access 17 to some papers. 18 shown that any absence of papers resulted in the inability to 19 file a timely federal petition. 20 He has not alleged that he continued to attempt to Under the circumstances, Petitioner has not Likewise, Petitioner has not established his diligence more 21 generally throughout the state court proceedings in attempting to 22 file a timely federal petition. 23 forth affirmative allegations showing his diligent efforts to 24 file the necessary documents. 25 at 1049. 26 27 Petitioner has failed to set Cf., Chaffer v. Prosper, 592 F.3d The Court notes that because Petitioner was not entitled to counsel with respect to collateral, state post-conviction 28 26 1 proceedings, the absence of counsel during those proceedings 2 cannot be the basis of an ineffective assistance claim. 3 v. Thompson, 501 U.S. 722, 752 (1991). 4 Coleman In summary, the Court concludes that Petitioner’s lack of 5 reasonable diligence as well as the absence of a causal 6 connection between any external circumstances and Petitioner’s 7 untimely filing, warrant rejection of Petitioner’s arguments 8 concerning equitable tolling. 9 10 VII. State Impediment to Filing Petitioner argues that the denial of his right to appeal was 11 the fault of the state. (Opp., doc. 16, 4.) 12 whether Petitioner is attributing to the state any alleged error 13 of the trial court or is arguing that because his counsel was 14 appointed (doc. 16, 8), the state was at fault. 15 It is not clear Title 28 U.S.C. § 2244(d)(1)(B) provides that the 16 limitations period begins on "the date on which the impediment to 17 filing an application created by State action in violation of the 18 Constitution or laws of the United States is removed, if the 19 applicant was prevented from filing by such State action." 20 U.S.C. § 2244(d)(1)(B). Petitioner may be attempting to argue 21 that his appointed counsel failed to perfect a direct appeal of 22 his conviction and sentence, and that this failure prevented him 23 from filing his federal habeas petition until Petitioner’s last 24 attempt to obtain a belated appeal was denied, or on November 10, 25 2009. 26 to Petitioner’s. 27 28 This argument has been rejected in circumstances analogous In Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010), 28 27 1 the court found no impediment had been made out where the 2 petitioner had failed to show a causal connection between any 3 failure of counsel and the untimeliness of the federal filing. 4 5 The Court thus concludes that Petitioner has not shown that he was entitled to tolling under 28 U.S.C. § 2244(d)(1)(B). 6 VIII. 7 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 8 appealability, an appeal may not be taken to the court of appeals 9 from the final order in a habeas proceeding in which the 10 detention complained of arises out of process issued by a state 11 court. 12 U.S. 322, 336 (2003). 13 only if the applicant makes a substantial showing of the denial 14 of a constitutional right. 15 petitioner must show that reasonable jurists could debate whether 16 the petition should have been resolved in a different manner or 17 that the issues presented were adequate to deserve encouragement 18 to proceed further. 19 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 20 certificate should issue if the Petitioner shows that jurists of 21 reason would find it debatable whether the petition states a 22 valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district 24 court was correct in any procedural ruling. 25 529 U.S. 473, 483-84 (2000). 26 conducts an overview of the claims in the habeas petition, 27 generally assesses their merits, and determines whether the 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 28 28 1 resolution was debatable among jurists of reason or wrong. 2 It is necessary for an applicant to show more than an absence of 3 frivolity or the existence of mere good faith; however, it is not 4 necessary for an applicant to show that the appeal will succeed. 5 Miller-El v. Cockrell, 537 U.S. at 338. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. Id. 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 10 debate whether the petition should have been resolved in a 11 different manner. 12 of the denial of a constitutional right. 13 DECLINES to issue a certificate of appealability. Petitioner has not made a substantial showing Accordingly, the Court 14 IX. 15 In summary, the Court concludes that the petition was Disposition 16 untimely. 17 diligence and the absence of any causal connection between 18 counsel’s alleged failings and Petitioner’s untimely filing of 19 the petition. 20 equitable relief. 21 to timely filing a petition here. The uncontested facts demonstrate Petitioner’s lack of The facts are inconsistent with statutory or Further, no facts suggest any state impediment 22 Accordingly, it is ORDERED that: 23 1) Respondent’s motion to dismiss the petition as untimely 24 is GRANTED; and 25 2) The petition is DISMISSED; and 26 3) The Clerk is DIRECTED to enter judgment in favor of 27 Respondent; and 28 29 1 2 4) The Court DECLINES to issue a certificate of appealability. 3 4 IT IS SO ORDERED. 5 Dated: ie14hj October 19, 2010 /s/ Sheila K. Oberto 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 30