(HC)Boone v. Davie, No. 1:2016cv00445 - Document 19 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that the 9 Motion to Dismiss be Granted signed by Magistrate Judge Michael J. Seng on 8/30/2016. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/3/2016. (Sant Agata, S)
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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:16-cv-00445 AWI MJS (HC) JAMES BOONE, 12 FINDINGS AND RECOMMENDATION ON RESPONDENT’S MOTION TO DISMISS Petitioner, 13 v. [Doc. 9] 14 15 DAVE DAVEY, 16 Respondent. 17 18 19 20 21 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 1 Respondent is represented in this action by Rebecca Whitfield, of the Office of the Attorney General for the State of California. I. Background 22 23 24 25 Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, upon being convicted by a jury on March 15, 2011 of unlawful sexual intercourse by force, unlawful oral copulation by force, and various sentencing enhancements. (See Lodged Doc. 1.) 26 27 28 1 Respondent notes that the Warden’s last name was incorrectly spelled by Petitioner. The Court hereby corrects and substitutes the properly spelled name of Respondent. 1 1 On April 13, 2011, Petitioner was sentenced to an indeterminate state prison term of 2 twenty-five (25) years to life. (Id.) 3 On January 16, 2013, the California Court of Appeal, Fifth Appellate District, 4 affirmed the judgment. (Lodged Doc. 2.) Review was denied by the California Supreme 5 Court on March 27, 2013. (Lodged Docs. 3-4.) 6 7 8 Petitioner proceeded to file seven petitions for writ of habeas corpus in the California state courts as follows: 1. California Court of Appeal, Fifth Appellate District Filed: June 19, 20132; Denied: July 10, 2013; 2. Fresno County Superior Court Filed: July 15, 20133; Denied: August 23, 2013; 3. California Court of Appeal, Fifth Appellate District Filed: September 18, 20134; Denied: November 14, 2013; 4. California Court of Appeal, Fifth Appellate District Filed: December 30, 20135; Denied: October 1, 2014; 5. Fresno County Superior Court Filed: April 13, 20156; Denied: May 15, 2015; 18 6. California Court of Appeal, Fifth Appellate District 19 2 9 10 11 12 13 14 15 16 17 20 21 22 23 24 25 26 27 Under the mailbox rule, the Court deems petitions filed on the date Petitioner handed a petition to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d 1056 (9th Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases. Although the petition was filed on June 25, 2013, pursuant to the mailbox rule the Court considers the petition filed on June 19, 2013, the date Petitioner signed the petition. 3 Although the petition was filed on July 18, 2013, pursuant to the mailbox rule the Court considers the petition filed on July 15, 2013, the date Petitioner signed the petition. 4 Although the petition was filed on September 23, 2014, pursuant to the mailbox rule the Court considers the petition filed on September 18, 2014, the date Petitioner signed the petition. 5 Although the petition was filed on January 13, 2014, pursuant to the mailbox rule the Court considers the petition filed on December 30, 2013, the date Petitioner signed the petition. 6 Petitioner failed to date the petition. As the Court is unable to determine the date the petition was mailed, Petitioner is not entitled to an earlier filing date. 28 2 Filed: April 13, 20157; Denied: May 21, 2015; 1 2 7. 3 4 California Supreme Court Filed: August 31, 20158; Denied: January 13, 2016. (Mot. to Dismiss, Exs. 5-18.) 5 On March 28, 2016, Petitioner filed the instant federal Petition for Writ of Habeas 6 Corpus in this Court. 9 On May 31, 2016, Respondent filed a Motion to Dismiss the 7 petition as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 8 2244(d), and for failure to exhaust state remedies. (Mot. to Dismiss, ECF No. 9.) 9 Petitioner filed an opposition on June 17, 2016, Respondent filed a reply on June 24, 10 2016, and Petitioner filed a sur-reply on July 22, 2016. (ECF Nos. 11-12, 17.) The matter 11 stands ready for adjudication. 12 II. Discussion 13 A. Procedural Grounds for Motion to Dismiss 14 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 15 16 dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing 17 Section 2254 Cases. 18 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an 19 answer if the motion attacks the pleadings for failing to exhaust state remedies or being 20 in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 21 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to 22 exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using 23 24 25 26 27 7 Although the petition was filed on April 20, 2015, pursuant to the mailbox rule the Court considers the petition filed on April 13, 2015, the date Petitioner signed the petition. 8 Although the petition was filed on September 11, 2015, pursuant to the mailbox rule the Court considers the petition filed on August 31, 2015, the date Petitioner signed the petition. 9 Although the petition was filed on March 31, 2016, pursuant to the mailbox rule the Court considers the petition filed on March 28, 2016, the date Petitioner signed the petition. 28 3 1 Rule 4 as procedural grounds to review motion to dismiss for state procedural default); 2 Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a 3 respondent can file a motion to dismiss after the court orders a response, and the Court 4 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & 5 n. 12. 6 In this case, Respondent's motion to dismiss is based on a violation of the one- 7 year limitations period. 28 U.S.C. § 2244(d)(1). Because Respondent's motion to dismiss 8 is similar in procedural standing to a motion to dismiss for failure to exhaust state 9 remedies or for state procedural default and Respondent has not yet filed a formal 10 answer, the Court will review Respondent’s motion to dismiss pursuant to its authority 11 under Rule 4. 12 B. Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A) 13 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death 14 Penalty Act of 1996 (hereinafter “AEDPA”). AEDPA imposes various requirements on all 15 petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 16 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 17 Cir. 1997). 18 In this case, the petition was filed on March 28, 2016 and is subject to the 19 provisions of AEDPA. AEDPA imposes a one-year period of limitation on petitioners 20 seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As 21 amended, § 2244, subdivision (d) reads: 22 23 24 25 26 27 28 (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; (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; 4 (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 1 2 3 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4 5 6 7 (2) The time during which a properly filed application for State postconviction 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). 8 Under § 2244(d)(1)(A), the limitations period begins running on the date that the 9 petitioner’s direct review became final or the date of the expiration of the time for seeking 10 such review. In this case, the California Supreme Court denied review on March 27, 11 2013. The state appeal process became final ninety days later, on June 25, 2013, when 12 the time for seeking certiorari with the United States Supreme Court expired. U.S. 13 Supreme Court rule 13; Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA 14 statute of limitations began to run the following day, on June 26, 2013. Patterson v. 15 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 16 Petitioner had one year from June 26, 2013, absent applicable tolling, in which to 17 file his federal petition for writ of habeas corpus. However, Petitioner delayed in filing the 18 instant petition until March 28, 2016, over a year and a half after the statute of limitations 19 period expired. Absent the later commencement of the statute of limitations or any 20 applicable tolling, the instant petition is barred by the statute of limitations. 21 C. 22 Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed 23 application for State post-conviction or other collateral review with respect to the 24 pertinent judgment or claim is pending shall not be counted toward” the one year 25 limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held 26 the statute of limitations is tolled where a petitioner is properly pursuing post-conviction 27 relief, and the period is tolled during the intervals between one state court's disposition of 28 5 1 a habeas petition and the filing of a habeas petition at the next level of the state court 2 system. 536 U.S. 214, 216 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th 3 Cir. 1999). Nevertheless, state petitions will only toll the one-year statute of limitations 4 under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was 5 timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 6 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or 7 determined by the federal courts to have been untimely in state court will not satisfy the 8 requirements for statutory tolling. Id. 9 Respondent acknowledges that Petitioner is entitled to tolling during the 10 pendency of Petitioner’s first state court petition. Petitioner’s first petition was filed on 11 June 19, 2013 – a week prior to the commencement of the limitations period. While 12 Petitioner is not entitled to tolling for the week prior to the limitations period, he is entitled 13 to tolling from the commencement of the limitations period on June 26, 2013, until the 14 denial of the petition on July 10, 2013. 15 Petitioner had the entire year limitations period remaining as of July 10, 2013. 16 Petitioner filed his second state petition with the Fresno County Superior Court on July 17 15, 2013. While Respondent acknowledges that Petitioner is entitled to tolling during the 18 pendency of Petitioner’s second through fourth state court petitions, he asserts that 19 Petitioner is not entitled to tolling during the interval period between filing the first and 20 second petitions. Respondent argues that Petitioner was not pursuing his application up 21 the ladder of the state court system. Review is "pending" within the meaning of § 22 2244(d)(2) only where a prisoner is pursuing a single, full round of habeas relief in state 23 court; thus, no review is "pending" where a prisoner files a second petition in a court 24 which raises new claims and does not constitute merely an elaboration of the facts 25 relating to the claims in a prior petition or an attempt to correct the prior petition's 26 deficiencies. Stancle v. Clay, 692 F.3d 948, 951, 954-56 (9th Cir. 2012); Banjo v. Ayers, 27 614 F.3d 964, 968-69 (9th Cir. 2010). After seeking review from the California Court of 28 Appeal in his first petition, Petitioner filed his second action in the Fresno County 6 1 Superior Court. Accordingly, Petitioner was not ascending up the state court hierarchy. 2 Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003). Petitioner is not entitled to the 3 benefit of tolling for the interval period. Therefore four days of the limitation period 4 expired prior to the filing of the second petition. As Petitioner is entitled to tolling for the 5 pendency of the second through fourth state petitions, 361 days of the limitation period 6 remained on October 1, 2014, the date the fourth petition was denied by the Fifth District 7 Court of Appeal. 8 Respondent again acknowledges that Petitioner is entitled to tolling during the 9 pendency of his fifth through sixth state petitions, but argues that he is not entitled to 10 tolling for the interval between the fourth and fifth petitions as Petitioner was not 11 ascending up the state hierarchy at that time. Respondent is correct. Petitioner 12 proceeded after the denial of his fourth state petition with the Fifth District Court of 13 Appeal to appeal to file his fifth petition with the Fresno County Superior Court. 14 Accordingly, Petitioner was not ascending up the state court hierarchy, and therefore not 15 entitled to tolling for the interval between petitions. Biggs, 339 F.3d at 1048; Stancle, 692 16 F.3d at 951, 954-56; Banjo, 614 F.3d at 964, 968-69. 194 days of the limitation period 17 expired between the denial of the fourth petition on October 1, 2014 and the filing of the 18 fifth petition on April 13, 2015. As Petitioner is entitled to tolling for the pendency of the 19 fifth through sixth state petitions, 167 days of the limitation period remained on May 21, 20 2015, the date the sixth petition was denied by the Fifth District Court of Appeal. 21 Petitioner did not file his seventh state habeas petition in the California Supreme 22 Court until August 31, 2015, which is 101 days after the California Court of Appeal 23 denied habeas relief to his sixth petition. Given that a habeas petition that is untimely 24 under state law is not "properly filed," Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), 25 "none of the time before or during the state court's consideration of an untimely petition 26 is tolled for purposes of AEDPA's limitations period," Curiel v. Miller, 2016 U.S. App. 27 LEXIS 13487, 2016 WL 394172, at *3 (9th Cir. July 25, 2016) (en banc) (citing Campbell 28 v. Henry, 614 F.3d 1056, 1061 (9th Cir. 2010)). "[I]f a California court dismisses a 7 1 habeas petition without comment . . . a federal court 'must itself examine the delay in 2 each case and determine what the state courts would have held in respect to 3 timeliness.'" Robinson v. Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (quoting Chavis, 546 4 U.S. at 197-98). In the instant case, the California Supreme Court summarily denied 5 Petitioner's state habeas petition without comment. Thus, the Court must examine the 6 delay and determine whether the petition was timely under state law. 7 California courts apply a general "reasonableness" standard to determine whether 8 a state habeas petition is timely. Carey v. Saffold, 536 U.S. 214, 222 (2002). Because 9 "California courts had not provided authoritative guidance on this issue," the Supreme 10 Court in Chavis "made its own conjecture . . . 'that California's "reasonable time" 11 standard would not lead to filing delays substantially longer than' between 30 and 60 12 days." Robinson, 795 F.3d at 929 (quoting Chavis, 546 U.S. at 199). However, if a 13 petitioner demonstrates good cause, California courts allow a longer delay. Robinson, 14 795 F.3d at 929 (citing In re Robbins, 18 Cal. 4th 770, 780, 77 Cal. Rptr. 2d 153, 959 15 P.2d 311 (1998)). The Ninth Circuit has also previously held that unexplained delays of 16 such duration are unreasonable, and not entitled to statutory tolling. See Velasquez v. 17 Kirkland, 639 F.3d 964 (9th Cir. 2011) (unexplained eighty and ninety-one day delays in 18 filing are unreasonable under California law and prevent tolling of AEDPA's one year 19 statute of limitations.). Petitioner delayed 102 days from the denial of his sixth petition to 20 the filing of his seventh habeas petition. Such an unexplained delay is unreasonable, 21 and Petitioner is not entitled to tolling for the period between the filing of the sixth and 22 seventh petitions or during the pendency of the seventh petition. 23 On May 21, 2015, the date the sixth petition was denied by the Fifth District Court 24 of Appeal, 167 days of the limitation period remained. The limitations period therefore 25 expired 167 days later on November 4, 2015, and the present petition was not filed until 26 March 28, 2016, over four months later. Accordingly, the petition is untimely. 27 D. Equitable Tolling 28 The limitations period is subject to equitable tolling if the petitioner demonstrates: 8 1 “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 2 circumstance stood in his way.” Holland v. Florida, 130 S. Ct. 2549, 2560-62 (2010); 3 quoting Pace v. DiGuglielmo. Petitioner bears the burden of alleging facts that would 4 give rise to tolling. Pace, 544 U.S. at 418; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th 5 Cir. 1993). In his opposition, Petitioner contends that he is entitled to tolling based on his 6 ignorance in the law. 7 Petitioner claims he should be entitled to equitable tolling because he is 8 uneducated and does not have knowledge of the law. This claim for equitable tolling 9 must fail. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (lack of legal 10 sophistication is not an extraordinary circumstance warranting equitable tolling); Turner 11 v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (inmate's lack of legal training, a poor 12 education, or illiteracy does not give a court reason to toll the limitations period); 13 Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004); Marsh v. Soares, 223 F.3d 1217, 14 1220 (10th Cir. 2000). Petitioner's circumstances and lack of knowledge of the law are 15 no different than the majority of incarcerated prisoners attempting to file petitions for writ 16 of habeas corpus. Accordingly, his ignorance of the law is not an extraordinary 17 circumstance entitling Petitioner to equitable tolling. 18 E. Exhaustion 19 Respondent, in his motion to dismiss, asserts an alternative ground for dismissal 20 based on failure to exhaust state remedies. (See Mot. to Dismiss at 9-11.) As the petition 21 is untimely and subject to dismissal, in an exercise of judicial efficiency, the Court will not 22 address Respondent's claims regarding failure to exhaust judicial remedies. 23 III. Conclusion 24 As explained above, Petitioner failed to file the instant petition for habeas corpus 25 within the one year limitation period required by 28 U.S.C. § 2244(d). Petitioner is not 26 entitled to the benefit of statutory tolling, but not equitable tolling. Regardless, the 27 petition remains untimely even with the benefit of statutory tolling. Based on the 28 foregoing, this Court recommends that Respondent’s motion to dismiss be GRANTED. 9 1 IV. Recommendation 2 Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for 3 Petitioner’s failure to comply with 28 U.S.C. § 2244(d)’s one year limitation period be 4 GRANTED. 5 This Findings and Recommendation is submitted to the assigned United States 6 District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 7 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern 8 District of California. Within thirty (30) days after the date of service of this Findings and 9 Recommendation, any party may file written objections with the Court and serve a copy 10 on all parties. Such a document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendation.” Replies to the Objections shall be served and filed 12 within fourteen (14) days after service of the Objections. The Finding and 13 Recommendation will then be submitted to the District Court for review of the Magistrate 14 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure to 15 file objections within the specified time may waive the right to appeal the District Court's 16 order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 17 18 19 20 IT IS SO ORDERED. Dated: August 30, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 10
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