-SKO (HC) Howard v. Yates, No. 1:2010cv02318 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 13 Respondent's Motion to Dismiss the Petition be GRANTED; the Petition be DISMISSED as Untimely; the Court DECLINE to Issue a Certificate of Appealability; and the Clerk be DIRECTED to Close the Case re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 7/8/2011. Referred to Judge Ishii Objections to F&R due within thirty (30) days. (Jessen, A)
Download PDF
<![CDATA[
-SKO (HC) Howard v. Yates Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 EVERT KEITH HOWARD, 12 Petitioner, 13 v. 14 JAMES YATES, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02318-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 13, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS UNTIMELY (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 17 OBJECTIONS DEADLINE: THIRTY (30) DAYS 18 19 Petitioner is a state prisoner proceeding pro se with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 21 The matter has been referred to the Magistrate Judge pursuant to 22 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. Pending before 23 the Court is the Respondent’s motion to dismiss the petition as 24 untimely, which was filed on February 14, 2011. Paper documents 25 were lodged in support of the motion. Petitioner filed an 26 opposition to the motion on April 6, 2011, but no reply was 27 filed. 28 1 Dockets.Justia.com 1 I. 2 Respondent has filed a motion to dismiss the petition on the 3 ground that Petitioner filed his petition outside of the one-year 4 limitation period provided for by 28 U.S.C. § 2244(d)(1). 5 Proceeding by a Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases in the 6 United States District Courts (Habeas Rules) allows a district 7 court to dismiss a petition if it “plainly appears from the face 8 of the petition and any exhibits annexed to it that the 9 petitioner is not entitled to relief in the district court....” 10 The Ninth Circuit has allowed respondents to file motions to 11 dismiss pursuant to Rule 4 instead of answers if the motion to 12 dismiss attacks the pleadings by claiming that the petitioner has 13 failed to exhaust state remedies or has violated the state’s 14 procedural rules. 15 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 16 a petition for failure to exhaust state remedies); White v. 17 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 18 review a motion to dismiss for state procedural default); Hillery 19 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 20 Thus, a respondent may file a motion to dismiss after the Court 21 orders the respondent to respond, and the Court should use Rule 4 22 standards to review a motion to dismiss filed before a formal 23 answer. 24 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, Respondent's motion to dismiss addresses the 25 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). 26 The material facts pertinent to the motion are mainly to be found 27 in copies of the official records of state judicial proceedings 28 which have been provided by Respondent and Petitioner, and as to 2 1 which there is no factual dispute. 2 filed a formal answer, and because Respondent's motion to dismiss 3 is similar in procedural standing to a motion to dismiss for 4 failure to exhaust state remedies or for state procedural 5 default, the Court will review Respondent’s motion to dismiss 6 pursuant to its authority under Rule 4. Because Respondent has not 7 II. 8 Petitioner alleged in the petition that he was an inmate of 9 Background the Pleasant Valley State Prison (PVSP) located within the 10 Eastern District of California, serving a sentence of fifteen 11 (15) years to life imposed by the Fresno County Superior Court on 12 December 1, 2006, upon Petitioner’s conviction of second degree 13 murder in violation of Cal. Pen. Code § 187. 14 Petitioner challenges his conviction, claiming 1) his trial 15 counsel rendered ineffective assistance in violation of 16 Petitioner’s Sixth and Fourteenth Amendment rights by permitting 17 improper instructions concerning malice, which resulted in a 18 lowering of the prosecutor’s burden of proof; and 2) the trial 19 court improperly instructed the jury with respect to malice and 20 general intent (CALJIC nos. 1.22 and 3.30). 21 Petitioner seeks a new trial, or, in the alternative, an 22 evidentiary hearing to investigate his claim that trial counsel 23 was ineffective. 24 25 26 (Pet. 1.) (Id. at 5, 7.) (Id. at 15.) The pertinent state court proceedings are briefly summarized below. On December 1, 2006, Petitioner was sentenced to an 27 indeterminate term of fifteen (15) years to life pursuant to 28 Petitioner’s conviction of second degree murder on June 8, 2006. 3 1 (L.D. 1.)1 2 In an opinion filed on February 29, 2008, in case number 3 F051859, the Court of Appeal of the State of California, Fifth 4 Appellate District (DCA) affirmed the judgment. 5 (L.D. 2.) A petition for review filed on behalf of Petitioner on or 6 about April 10, 2008, in case number S162499 was summarily denied 7 by the California Supreme Court on June 11, 2008. (L.D. 4.) 8 On January 29, 2009,2 Petitioner filed a petition for writ 9 of habeas corpus in the Fresno County Superior Court, which was 10 denied in a decision filed on March 4, 2009. (L.D. 5-6.) On May 22, 2009,3 Petitioner filed a petition for writ of 11 12 habeas corpus in the DCA, which was summarily denied on July 23, 13 2009. 14 (L.D. 7-8.) On or about November 10, 2009, Petitioner filed a petition 15 for writ of habeas corpus in the California Supreme Court. 16 9.) (L.D. Next to the signature on page six of the petition form 17 1 18 19 20 21 22 23 24 25 26 27 28 “L.D.” refers to lodged documents submitted by Respondent in support of the motion to dismiss. 2 Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). It has been held that the date the petition is signed may be inferred to be the earliest possible date an inmate could have submitted his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). Here, the signature on the petition filed in the Superior Court is not accompanied by a date, and the petition is otherwise undated. No post-marked envelope or proof of service is before the Court. (L.D. 5.) Thus, the Court considers the date the petition was marked filed by the Superior Court as the date of filing. (L.D. 5, 1.) 3 Again, the signature page of the petition lacks a date, and there is no corresponding proof of service or post-marked envelope before the Court. Thus, the Court considers the petition to have been filed as of the date of filing as marked by the DCA. (LD 7, 1. ) 4 1 appears the date of November 10, 2009. 2 the date of signing to give Petitioner the benefit of the mailbox 3 rule. 4 November 10, 2009, to be the earliest possible date that 5 Petitioner could have submitted his petition to the prison 6 authorities for mailing. 7 8 9 10 11 12 13 (Mot., 5:24-28.) Respondent suggests using The Court considers the date of signing, On May 12, 2010, the California Supreme Court summarily denied the petition. (L.D. 10.) The petition filed in this action was signed by Petitioner on November 18, 2010, and provides as follows: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on 11/18/10 (month, date, year). 14 Thus, applying the mailbox rule, the court concludes that 15 Petitioner filed the petition before the Court on November 18, 16 2010. 17 18 19 III. The Statute of Limitations A. Legal Standards On April 24, 1996, Congress enacted the Antiterrorism and 20 Effective Death Penalty Act of 1996 (AEDPA). 21 to all petitions for writ of habeas corpus filed after the 22 enactment of the AEDPA. 23 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en 24 banc), cert. denied, 118 S.Ct. 586 (1997). 25 original petition for writ of habeas corpus on November 18, 2010. 26 Thus, the AEDPA applies to the petition. 27 28 The AEDPA applies Lindh v. Murphy, 521 U.S. 320, 327 Petitioner filed his The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 5 28 1 U.S.C. § 2244(d)(1). 2 As amended, 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 7 filing an violation States is filing by 8 (B) the date on which the impediment to application created by State action in of the Constitution or laws of the United removed, if the applicant was prevented from such State action; 9 (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 10 11 12 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 13 14 (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. 15 16 17 28 U.S.C. § 2244(d). 18 B. 19 20 Commencement of the Running of the Limitation Period In the present case, no circumstances appear to warrant the 21 application of § 2244(d)(1)(B) through (D). 22 determine the date on which the judgment became final within the 23 meaning of § 2244(d)(1)(A). 24 Thus, the Court will Under § 2244(d)(1)(A), the “judgment” refers to the sentence 25 imposed on the petitioner. 26 57 (2007). 27 December 1, 2006. 28 /// Burton v. Stewart, 549 U.S. 147, 156- The last sentence was imposed on Petitioner on 6 1 Under § 2244(d)(1)(A), a judgment becomes final either upon 2 the conclusion of direct review or the expiration of the time for 3 seeking such review in the highest court from which review could 4 be sought. 5 2001). 6 upon either 1) the conclusion of all direct criminal appeals in 7 the state court system, followed by either the completion or 8 denial of certiorari proceedings before the United States Supreme 9 Court; or 2) if certiorari was not sought, then by the conclusion 10 of all direct criminal appeals in the state court system followed 11 by the expiration of the time permitted for filing a petition for 12 writ of certiorari. 13 Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 14 U.S. 1187 (1999)). 15 Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. The statute commences to run pursuant to § 2244(d)(1)(A) Wixom, 264 F.3d at 897 (quoting Smith v. The Court will apply Fed. R. Civ. P. 6(a) in calculating the 16 pertinent time periods. 17 Hall, 548 F.3d 729, 735 n.2 (9th Cir. 2008); Patterson v. 18 Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). Fed. R. Civ. P. 6(a); see, Waldrip v. 19 Here, Petitioner’s direct review concluded when his petition 20 for review was denied by the California Supreme Court on June 11, 21 2008. 22 later, when the period in which Petitioner could petition for a 23 writ of certiorari from the United States Supreme Court expired. 24 Supreme Court Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th 25 Cir. 1999). 26 concluded on September 9, 2008. 27 28 The time for seeking further review expired ninety days The ninety-day period began on June 12, 2008, and Thus, the limitation period began to run on September 10, 2008, and concluded one year later on September 9, 2009. 7 1 2 28 U.S.C. § 2244(d)(1); Fed. R. Civ. P. 6(a). Because the petition in the instant case was not filed until 3 November 18, 2010, the petition appears on its face to have been 4 filed outside the applicable one-year limitation period. 5 6 C. Statutory Tolling Title 28 U.S.C. § 2244(d)(2) states that the “time during 7 which a properly filed application for State post-conviction or 8 other collateral review with respect to the pertinent judgment or 9 claim is pending shall not be counted toward” the one-year 10 11 limitation period. 28 U.S.C. § 2244(d)(2). Once a petitioner is on notice that his habeas petition may 12 be subject to dismissal based on the statute of limitations, he 13 has the burden of demonstrating that the limitations period was 14 sufficiently tolled by providing the pertinent facts, such as 15 dates of filing and denial. 16 1019 (9th Cir. 2009) (citing Smith v. Duncan, 297 F.3d 809, 814- 17 15 (9th Cir. 2002), abrogation on other grounds recognized by 18 Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir. 2007)). Zepeda v. Walker, 581 F.3d 1013, 19 In Carey v. Saffold, 536 U.S. 214 (2002), the Court held 20 that an application is “pending” until it “has achieved final 21 resolution through the State's post-conviction procedures.” 22 U.S. 220. 23 until a state petitioner “completes a full round of collateral 24 review.” 25 delay, an application for post conviction relief is pending not 26 only during its pendency before a court, but also during the 27 “intervals between a lower court decision and a filing of a new 28 petition in a higher court” and until the California Supreme 536 An application does not achieve the requisite finality Id. at 219-20. Accordingly, in the absence of undue 8 1 Court denies review. 2 1048 (9th Cir. 2003). 3 Id. at 223; Biggs v. Duncan, 339 F.3d 1045, However, when one full round up the ladder of the state 4 court system is complete and the claims in question are 5 exhausted, a new application in a lower court begins a new round 6 of collateral review. 7 example, the statute of limitations is not tolled from the time a 8 final decision is issued on direct state appeal and the time the 9 first state collateral challenge is filed because there is no Biggs v. Duncan, 339 F.3d at 1048. 10 case “pending” during that interval. 11 For 1003, 1006 (9th Cir. 1999). 12 Nino v. Galaza, 183 F.3d Here, Petitioner’s first state collateral petition was filed 13 in the trial court on January 29, 2009, and remained pending 14 until March 4, 2009, when it was denied. 15 the limitation period ran after the commencement of the period on 16 September 10, 2008, and until the filing of the trial court 17 petition on January 29, 2009. 18 for 35 days during the pendency of the petition from January 29, 19 2009, through and including March 4, 2009, the date the petition 20 was denied. A total of 141 days of Thereafter, the statute was tolled 21 Petitioner’s next petition for collateral relief was filed 22 on May 22, 2009, in the DCA, and remained pending until summary 23 denial on July 23, 2009. 24 Respondent contends that the delay of 79 days before filing 25 the DCA petition was unreasonable, and thus Petitioner is not 26 entitled to tolling for the interval between denial by the trial 27 court and filing the petition in the DCA. 28 /// 9 1 State time limits are conditions to filing which render a 2 petition not properly filed. 3 417 (2005). 4 conviction relief as untimely, the petition is not a “properly 5 filed” application for post-conviction or collateral review 6 within the meaning of § 2244(d)(2), and thus it does not toll the 7 running of the limitation period. 8 408, 417 (2005). Pace v. DiGuglielmo, 544 U.S. 408, When a state court rejects a petition for post- Pace v. DiGuglielmo, 544 U.S. 9 In California, instead of filing an appeal from a lower 10 court’s denial of a habeas petition, a petitioner may file serial 11 original petitions in each higher court. 12 concrete time limits on the filing of petitions for collateral 13 relief; rather, the timeliness of each filing is determined 14 according to a “reasonableness” standard. 15 U.S. at 221-22. 16 California Supreme Court about the meaning of the term 17 “reasonable time” in a specific factual context, or a clear 18 indication that a filing was timely or untimely, a federal court 19 hearing a subsequent federal habeas petition must examine all 20 relevant circumstances concerning the delay in each case and 21 determine independently whether the state courts would have 22 considered any delay reasonable so as to render the state 23 petition “pending” within the meaning of § 2244(d)(2). 24 Chavis, 546 U.S. 189, 197-98 (2006). 25 Further, there are no Carey v. Saffold, 536 Absent a clear direction or explanation from the Here, the DCA summarily denied the petition. Evans v. Thus, there is 26 no clear indication that the DCA considered Petitioner’s petition 27 timely or untimely. 28 However, the Supreme Court has indicated that in the absence 10 1 of contrary information from California, the federal courts will 2 assume that California’s indeterminate reasonableness standard is 3 applied in a manner that avoids leading to filing delays 4 substantially longer than those in states with determinate 5 timeliness rules. 6 Delays in filing will thus be compared with the relatively short 7 periods of time, thirty (30) to sixty (60) days, that most states 8 provide for filing an appeal. See, Evans v. Chavis, 546 U.S. 189, 199-200. Evans, 546 U.S. at 201. 9 A delay of six months has been found to be unreasonable 10 because it is longer than the relatively short periods of thirty 11 (30) or sixty (60) days provided by most states for filing 12 appeals. 13 one hundred fifteen (115) and one hundred one (101) days between 14 denial of one petition and the filing of a subsequent petition 15 have been held to be excessive. 16 1046, 1048 (9th Cir. 2010). 17 964 (9th Cir. 2011), unexplained delays of eighty (80) and 18 ninety-one (91) days in filing habeas petitions were held to be 19 unreasonable, and the petitioner was not entitled to tolling for 20 either the interval between filings or the time during which an 21 untimely petition itself was pending. 22 periods of ninety-seven (97) and seventy-one (71) days have also 23 been found to be unreasonable. 24 Corrections, 450 F.Supp.2d 1135, 1140 (C.D.Cal. 2006). 25 Evans v. Chavis, 546 U.S. 189, 201 (2006). Delays of Chaffer v. Prosper, 592 F.3d. In Velasquez v. Kirkland, 639 F.3d Unexplained, unjustified Culver v. Director of Here, Petitioner’s DCA petition was filed on the seventy- 26 ninth (79th) day after the trial court petition was denied. 27 interval is approximately several weeks beyond a sixty-day delay, 28 which is at the outer edge of the short, reasonable periods noted 11 This 1 by the Court in Evans v. Chavis, 546 U.S. 189, 201. 2 one day short of the delay found unreasonable in Velasquez v. 3 Kirkland, 639 F.3d 964 (9th Cir. 2011). 4 the delay was unreasonable. 5 It is just The Court concludes that Petitioner argues that the running of the limitations period 6 was statutorily tolled because in the past few years, changes in 7 the prison system have resulted in restricted access to the law 8 library. 9 (Opp., doc. 17, 5.) Petitioner describes the access as “extremely limited.” Several years ago the access changed from 10 all day to one-half day because of overcrowding. 11 years, rolling lock-downs, involving no programming for one-half 12 day every other day, have occurred with unspecified frequency due 13 to budget shortfalls. 14 can be limited to just a couple of hours a week, which is further 15 limited by lock-downs and the availability of only five (5) 16 computer terminals during the library’s open hours on Mondays 17 through Fridays. (Id.) 18 In the past two Petitioner alleges that the available time To benefit from statutory tolling, a petitioner must 19 adequately justify a substantial delay. 20 Evans v. Chavis, 546 U.S. 189, 192-93 (2006); Waldrip v. Hall, 21 548 F.3d 729, 734 (9th Cir. 2008). 22 habeas “claim or sub-claim that is substantially delayed will 23 nevertheless be considered on the merits if the petitioner can 24 demonstrate ‘good cause’ for the delay.” 25 Cal.4th 770, 805 (1998) (citing In re Clark, 5 Cal.4th 750, 783 26 (1993)). 27 allegations of specific facts, sufficient to justify the delay; 28 allegations made in general terms are insufficient. 28 U.S.C. § 2244(d)(2); Under California law, a In re Robbins, 18 Petitioner must show particular circumstances, based on 12 In re 1 Robbins, 18 Cal.4th at 787-88, 805 (citing In re Walker, 10 2 Cal.3d 764, 774 (1974)). 3 petitioner or counsel knew, or reasonably should have known, of 4 the factual information offered in support of the claim and the 5 legal basis for the claim. 6 The delay is measured from the time the In re Robbins, 18 Cal.4th 770, 787. Petitioner has not specifically alleged the frequency of the 7 lock-downs, and the precise limit on library access is not clear 8 because he stated only that access “can be limited” to just a 9 couple of hours weekly. (Opp., doc. 17, 5.) Petitioner has not 10 provided facts concerning the availability of any alternate aids 11 to legal research, such as the assistance of other inmates or 12 copying service. 13 has not established a lack of library access or inability to 14 complete any needed research at any specific time. 15 or procedural knowledge combined with limited access to the 16 prison law library are not sufficient to justify a substantial 17 delay where the petitioner was not wholly prevented by lock-downs 18 or prison employment from using the law library. 19 Chavis, 546 U.S. 189, 201 (2006.) 20 Based on the facts alleged by Petitioner, he Lack of legal Evans v. Further, Petitioner has not shown how any limitation on 21 access to the library actually caused the delay in filing the 22 petition. 23 legal arguments that were presented in the trial court petition 24 were repeated in the DCA petition. (L.D. 5, 7.) 25 raised concerned the alleged failings of trial counsel. 26 Petitioner has not shown that there was any necessity for delay 27 in filing a petition that was strikingly similar to the 28 previously submitted petition. The Court notes that the essential allegations and The issues Cf., Waldrip v. Hall, 548 F.3d 13 1 2 729, 736-37 (9th Cir. 2008). Further, one generally does not have a constitutional right 3 to counsel in non-capital, state post-conviction proceedings or 4 in the course of discretionary direct review. 5 Finley, 481 U.S. 551, 555-57 (1987); Ross v. Moffitt, 417 U.S. 6 600, 610-11 (1974). 7 to counsel in non-capital, federal habeas proceedings. 8 Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). 9 is not in itself a justification for late filing. Pennsylvania v. Therefore, there is no constitutional right Bonin v. Thus, pro se status In re Clark, 5 10 Cal.4th 750, 765 (1993). 11 his pro se status, he has failed to show how his pro se status 12 justified his delay. 13 To the extent that Petitioner relies on The Court concludes that Petitioner’s delay in filing his 14 DCA petition until the seventy-ninth day after denial of his 15 trial court petition was unreasonable. 16 under the California reasonableness standard. 17 should not be tolled for either the time during which the DCA 18 actually considered the petitioner’s habeas petition or the time 19 between the denial of the previous petition and the filing of the 20 DCA petition. 21 2010), cert. denied, 131 S.Ct. 332 (2010); Bonner v. Carey, 425 22 F.3d 1145, 1149 (9th Cir. 2005), amended by Bonner v. Carey, 439 23 U.S. 993 (9th Cir. 2009), cert. denied, 549 U.S. 856 (2006). The petition was untimely Thus, the statute White v. Martel, 601 F.3d 882, 883-84 (9th Cir. 24 Therefore, in addition to the 141 days that ran before the 25 filing of the Superior Court petition on September 10, 2008, an 26 additional 78 days ran between the denial of the trial court 27 petition on March 4, 2009, and the filing of the DCA petition on 28 May 22, 2009, and an additional 61 days ran during the time that 14 1 the untimely DCA petition was pending before the DCA until its 2 denial on July 23, 2009. 3 ran by the date the DCA petition was denied on July 23, 2009. 4 Thus, 280 days of the limitation period Respondent argues that the statute should not be tolled for 5 the delay of 110 days after the DCA’s denial of the petition on 6 July 23, 2009, until the filing of the petition in the California 7 Supreme Court on November 10, 2009. 8 delay. 9 short delays of thirty (30) or sixty (60) days considered The Court counts 109 days of In either case, the delay far exceeded the relatively 10 reasonable in light of the practices of most states. 11 concludes that the delay of 109 days was unreasonable. 12 The Court Although Petitioner argues that the delay was justified by 13 the limitations on law library access, the foregoing analysis 14 demonstrates that Petitioner did not show that a limitation on 15 law library access precluded him from filing a timely petition. 16 The Court notes that with the exception of one attachment, 17 consisting of the Superior Court’s order of denial dated March 4, 18 2009, the petition filed in the California Supreme Court was 19 virtually identical to the petition filed in the DCA. 20 Petitioner further argues that the delay was reasonable 21 because he took time to correspond with the DCA concerning the 22 petition that he had filed there, in which he had alleged 23 inadequate assistance of counsel. 24 in the DCA on May 22, 2009, the Clerk of the DCA wrote 25 Petitioner’s trial counsel on May 29, 2009, notifying him that 26 Petitioner had raised an issue concerning his representation in 27 the Superior Court, and granting counsel leave to file an 28 informal response and declaration in the habeas proceeding to 15 After the petition was filed 1 respond to Petitioner’s allegations of ineffective 2 representation. 3 any assistance that would be offered, the Clerk stated: 4 (Doc. 17, 8.) After expressing appreciation for Without your assistance, it may be necessary to order a hearing before the superior court. 5 (Id. at 9.) The letter reflects that a copy was sent to 6 Petitioner, and that counsel was instructed to serve any response 7 only on the Court and Petitioner. (Id. at 8.) The petition was 8 denied by the DCA on July 23, 2009. 9 The DCA’s docket reflects that on August 13, 2009, a letter 10 dated August 3, 2009, was received from Petitioner. The entry 11 states: 12 13 Letter dated 8/3/09 from petnr Howard re: Denial of motion and no response received from former attorney (W1) 14 On August 21, 2009, the clerk of the DCA sent to Petitioner 15 a letter stating the following: 16 17 18 19 20 21 22 23 The court has authorized the following response to your inquiry dated August 3, 2009, as follows: This court did not receive any response from trial counsel. This court’s letter sent on May 29, 2009, only stated that without counsel’s response, “it may be necessary to order a hearing before the superior court.” Thus, the letter did not require a hearing even if counsel did not respond. (Id. at 7.) Petitioner contends that when he received the DCA’s order 24 denying his habeas petition on July 23, 2009, he had not been 25 apprised of his counsel's response to the DCA’s letter inviting 26 input from counsel on the ineffective assistance claim. 27 Petitioner argues that it was reasonable to seek clarification 28 from the DCA to see if his counsel had, in fact, responded. 16 1 However, as a party to the habeas proceeding in the DCA, 2 Petitioner would have been served with any input his counsel had 3 submitted in the action. 4 instructed by the DCA to send any informal response and 5 declaration only to the DCA and to the Petitioner; the DCA would 6 treat it as sealed. 7 for Petitioner to expect that any matter would have been 8 submitted by counsel without having been served on him. 9 Indeed, counsel had been specifically (Doc. 17, 8.) Thus, it was not reasonable Petitioner argues that he had a reasonable expectation that 10 the DCA would hold an evidentiary hearing if counsel did not 11 cooperate with the court by submitting a declaration in response 12 to the DCA’s invitation. 13 reflects, the letter sent to counsel states only that it might be 14 necessary to order a hearing before the Superior Court if counsel 15 did not respond to the letter. 16 possibility of proceedings for factual development in the trial 17 court; it did not indicate that such proceedings were necessary 18 or even likely. However, as the DCA’s correspondence Thus, the letter only raised a 19 Petitioner argues that he could not proceed with another 20 writ to the California Supreme Court when his issues had not been 21 fully resolved at the DCA level. 22 was denied by the denial order of July 23, 2009; the docket 23 expressly reflects that as of that date, the case was complete. 24 (L.D. 8, 1.) 25 However, the entire petition Petitioner argues that his letter is reasonably described as 26 a motion for reconsideration and/or clarification, which was 27 denied on August 21, 2009 – the date of the letter sent from the 28 DCA clerk in response to Petitioner’s letter. 17 The Court does not 1 have a copy of the document sent to the DCA by Petitioner that 2 was dated August 3, 2009, which the DCA docket reflects was 3 received on August 13, 2009. 4 himself describes it as a “letter.” 5 DCA’s docket reflects that the document was received on August 6 13, 2009, and describes it as follows: 7 8 9 10 (L.D. 8, 1.) However, Petitioner (Opp., doc. 17, 4.) The Letter dated 8/3/09 from petnr Howard re: Denial of motion and no response received from former attorney (W1) (Id.) The DCA’s response to Petitioner’s letter was described in 11 the docket as a “Letter,” and it did not purport to reconsider a 12 ruling or issue a decision or disposition. It instead explained 13 that no response had been received from trial counsel, and the 14 court’s previous letter to counsel had only stated that it might 15 be necessary to order a hearing and emphasized that the court’s 16 previous letter inviting counsel to respond had not required a 17 hearing if counsel failed to respond. 18 letter was from the clerk, and not from a justice or panel of 19 justices. 20 reasonably could have been considered, to have been a petition 21 for rehearing. 22 The DCA’s responsive It thus does not appear that it was considered, or The Court concludes that the delay of 109 days between July 23 23, 2009, when the DCA petition was denied, until the filing of 24 the petition in the California Supreme Court on November 10, 25 2009, was unjustified and was unreasonable. 26 time interval after the DCA’s denial of the petition and before 27 the filing of the petition in the Supreme Court is not tolled. 28 The final eighty-five (85) days remaining in the limitation 18 Accordingly, the 1 period expired on October 16, 2009, long before Petitioner filed 2 a petition in the California Supreme Court on November 10, 2009. 3 The Court further notes that if the correspondence 4 concerning counsel’s input in the DCA were considered to be 5 adequate justification for the delay in filing a petition in the 6 California Supreme Court, then the statute would be tolled from 7 July 24, 2009, the first day after the DCA’s denial, for a month 8 (comprised of the time after the denial until the date on which 9 the DCA’s letter of August 21, 2009, would have been served by 10 11 mail on Petitioner), or through August 24, 2009. Under such an assumption, thirty-two (32) days of the 12 limitation period would be tolled. 13 in the California Supreme Court would thus have extended from 14 August 25, 2009, through November 10, 2009, for a total of 15 seventy-seven (77) days. 16 unreasonable, and the petition filed in the Supreme Court was 17 untimely. 18 as well as the period of pendency of the petition in the 19 California Supreme Court would not be tolled. 20 The period of delay in filing This length of delay is also Thus, the interval before the filing of the petition Even if the limitation period were tolled not only during 21 the interval between the DCA’s denial and the filing of a 22 petition in California Supreme Court, but also during the period 23 in which the petition was actually pending before the California 24 Supreme Court, the limitation period would have run before 25 Petitioner filed his petition here. 26 Court denied the petition on May 12, 2010, a total of 189 days 27 passed before Petitioner filed his petition here on November 18, 28 2010. After the California Supreme Two hundred eighty (280) days had already passed before 19 1 the petition was filed in the DCA. 2 was untimely. 3 4 D. Thus, Petitioner’s petition Equitable Tolling It is unclear whether Petitioner is arguing that the 5 petition was equitably tolled. 6 Court will consider under the rubric of equitable tolling the 7 justifications that Petitioner offers for the delay. 8 9 In an abundance of caution, the The one-year limitation period of § 2244 is subject to equitable tolling where the petitioner has been diligent, and 10 extraordinary circumstances, such as the egregious misconduct of 11 counsel, have prevented the petitioner from filing a timely 12 petition. 13 (2010). 14 circumstances were the cause of his untimeliness and that the 15 extraordinary circumstances made it impossible to file a petition 16 on time. 17 The diligence required for equitable tolling is reasonable 18 diligence, not “maximum feasible diligence.” 19 130 S.Ct. at 2565. 20 Holland v. Florida, – U.S. –, 130 S.Ct. 2549, 2560 The petitioner must show that the extraordinary Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Holland v. Florida, “[T]he threshold necessary to trigger equitable tolling 21 [under AEDPA] is very high, lest the exceptions swallow the 22 rule.” 23 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v. 24 Here, Petitioner’s pro se status and the limitations on 25 access to the law library are not sufficient to warrant equitable 26 tolling. 27 circumstance. 28 2010). Petitioner’s pro se status is not an extraordinary Chaffer v. Prosper, 592 U.S. 1046, 1049 (9th Cir. A pro se petitioner's confusion or ignorance of the law 20 1 is not alone a circumstance warranting equitable tolling. 2 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). 3 Likewise, limitations on law library access and research 4 materials are not extraordinary, but rather are normal conditions 5 of prison life. 6 Chaffer v. Prosper, 592 F.3d at 1049. Further, Petitioner has not shown how any specific instance 7 of inadequacy of access or materials caused him to be unable to 8 file a timely petition. 9 Petitioner has not shown that the limitation period was equitably 10 tolled. 11 Accordingly, the Court concludes that dismissed as untimely. It will, therefore, be recommended that the petition be 12 IV. 13 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 14 appealability, an appeal may not be taken to the Court of Appeals 15 from the final order in a habeas proceeding in which the 16 detention complained of arises out of process issued by a state 17 court. 18 U.S. 322, 336 (2003). 19 only if the applicant makes a substantial showing of the denial 20 of a constitutional right. 21 petitioner must show that reasonable jurists could debate whether 22 the petition should have been resolved in a different manner or 23 that the issues presented were adequate to deserve encouragement 24 to proceed further. 25 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 26 certificate should issue if the Petitioner shows that jurists of 27 reason would find it debatable whether the petition states a 28 valid claim of the denial of a constitutional right and that 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 21 A 1 jurists of reason would find it debatable whether the district 2 court was correct in any procedural ruling. 3 529 U.S. 473, 483-84 (2000). 4 Slack v. McDaniel, In determining this issue, a court conducts an overview of 5 the claims in the habeas petition, generally assesses their 6 merits, and determines whether the resolution was debatable among 7 jurists of reason or wrong. 8 applicant to show more than an absence of frivolity or the 9 existence of mere good faith; however, it is not necessary for an Id. It is necessary for an 10 applicant to show that the appeal will succeed. 11 Cockrell, 537 U.S. at 338. Miller-El v. 12 A district court must issue or deny a certificate of 13 appealability when it enters a final order adverse to the 14 applicant. 15 Here, it does not appear that reasonable jurists could debate 16 whether the petition should have been resolved in a different 17 manner. 18 denial of a constitutional right. 19 20 Rule 11(a) of the Rules Governing Section 2254 Cases. Petitioner has not made a substantial showing of the Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 21 V. 22 Accordingly, it is RECOMMENDED that: 23 1) Respondent’s motion to dismiss the petition be GRANTED; 25 2) The petition be DISMISSED as untimely; and 26 3) The Court DECLINE to issue a certificate of 24 27 28 Recommendations and appealability; and 4) The Clerk be DIRECTED to close the case. 22 1 These findings and recommendations are submitted to the 2 United States District Court Judge assigned to the case, pursuant 3 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 4 the Local Rules of Practice for the United States District Court, 5 Eastern District of California. 6 being served with a copy, any party may file written objections 7 with the Court and serve a copy on all parties. 8 should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendations.” Within thirty (30) days after Such a document Replies to the objections shall be served 10 and filed within fourteen (14) days (plus three (3) days if 11 served by mail) after service of the objections. 12 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 13 636 (b)(1)(C). 14 objections within the specified time may waive the right to 15 appeal the District Court’s order. 16 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 17 18 IT IS SO ORDERED. 19 Dated: ie14hj July 8, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 23
]]>
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.
