(HC) Cassells v. Knowles, No. 2:2008cv02625 - Document 26 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/3/2010 RECOMMENDING that respondent's 16 motion to dismiss be granted; petitioner's 23 motion to stay be denied; and the clerk be directed to close the case. Referred to Judge Lawrence K. Karlton; Objections to F&R due w/in 14 days. (Yin, K)
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(HC) Cassells v. Knowles Doc. 26 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEITH MICHAEL CASSELLS, 11 Petitioner, 12 13 No. CIV S-08-2625 LKK EFB P vs. MIKE KNOWLES,1 Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 16 17 28 U.S.C. § 2254. Respondent moves to dismiss this action on the grounds that it is untimely 18 and contains two unexhausted claims. Petitioner opposes the motion and requests that the action 19 be stayed. For the reasons explained below, the court finds that the petition is untimely. The 20 court therefore recommends that petitioner’s motion to stay be denied and that respondent’s 21 motion to dismiss be granted. 22 //// 23 //// 24 //// 25 1 26 Kathleen Dickinson is substituted as respondent. See Rule 2(a), Rules Governing § 2254 Proceedings; Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 This action is proceeding on the original petition filed October 28, 2008.2 Dckt. No. 1. 2 Petitioner challenges his 1998 conviction, entered pursuant to a plea of nolo contendere, to 3 charges of multiple counts of robbery. Id. at 2; Resp.’s Mot. to Dism. (“Mot.”), Docs. Lodged in 4 Supp. Thereof (“Lodged Docs.”) 1. He claims he received ineffective assistance of counsel, that 5 his sentence violates California’s determinate sentencing law and the holding of Cunningham v. 6 California, 549 U.S. 270 (2007), and that it was illegal to enhance his sentence through use of a 7 1981 prior conviction that was obtained by plea bargain. Pet. at 5-6. Respondent contends the 8 petition is barred by the statute of limitations. 9 10 11 12 13 The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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 – (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; 14 15 (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; 16 17 (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 18 19 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 20 According to respondent, the statute of limitations began running under section 21 2244(d)(1)(A), the date upon which the judgment became final. Mot. at 3. The court agrees. 22 Since petitioner did not appeal his March 2, 1998 conviction, the conviction became “final” on 23 May 1, 1998, after the sixty-day period for filing a direct appeal with the California Court of 24 Appeal expired. See Cal. R. Ct. 8.308 (formerly Rule 30.1). 25 2 26 The court deems the filing date of the petition to be the date reflected on the certificate of service. See Houstan v. Lack, 487 U.S. 266, 276 (1988). See also Docket No. 2 at 2. 2 1 Petitioner appears to request a later start date for the statute of limitations based upon 2 section 2244(d)(1)(D), “the date on which the factual predicate of a claim could have been 3 discovered through the exercise of due diligence.” According to petitioner, it was not until 2007 4 that he discovered “that both the court and his attorney had allowed for the violation of his 5 constitutional rights through an unauthorized and illegal sentence and a breach of contract and 6 plea agreement; by misinterpretation and application of statutes, codes and laws.” Pet’r’s Opp’n 7 to Mot. (“Opp’n”) at 2-3. Petitioner further asserts that “late in 2008,” he discovered he had 8 legitimate claims. Id. at 4. Petitioner’s conclusory arguments do not justify an alternate start 9 date to the statute of limitations.3 Petitioner was, or should have been aware of the factual 10 predicate of his claims as of the date he was sentenced pursuant to his plea. See Hasan v. 11 Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a 12 prisoner “knows (or through diligence could discover) the important facts, not when the prisoner 13 recognizes their legal significance”). 14 Here, the one-year statute of limitations ran from the date petitioner’s conviction became 15 final rather than from the date he discovered the legal consequences of his plea. See 28 U.S.C. 16 § 2244(d)(1)(A). Petitioner therefore had until May 3, 1999 to file his federal petition.4 17 Petitioner did not file the instant petition until October 28, 2008. Dckt. No. 1. Absent tolling, 18 his application in this court is over nine years late. 19 There is no statutory tolling of the limitations period “from the time a final decision is 20 issued on direct state appeal [to] the time the first state collateral challenge is filed . . . .” Nino v. 21 Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But once a petitioner properly files a state post- 22 23 24 3 Nor does petitioner’s Cunningham claim entitle him to a later start date of the statute of limitations pursuant to section 2244(d)(1)(C), because the constitutional right recognized in Cunningham was not “newly recognized” by the Supreme Court. See Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008). 25 4 26 The limitations period expired Saturday, May 1, 1999. However, petitioner did not have to file until Monday, May 3, 1999. See Fed. R. Civ. P. 6(a)(1)(C). 3 1 conviction application the period is tolled, and remains tolled for the entire time that application 2 is “pending.” 28 U.S.C. § 2244(d)(2). If the limitations period has run, however, it cannot be 3 revived by a collateral action. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 4 Petitioner filed five petitions for post-conviction relief in the state courts. Pet. at 2; Lodg. 5 Docs. 2, 4, 6, 8, 10. The earliest of these petitions was filed on February 21, 2007. Lodg. Doc. 6 2. Because petitioner waited almost seven years after the federal statute of limitations period 7 expired before filing his first state habeas petition, he is not entitled to statutory tolling. See 8 Jiminez, 276 F.3d at 482. 9 The limitations period may be equitably tolled where a habeas petitioner establishes two 10 elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 11 circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this 12 pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable 13 tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that 14 despite diligently pursuing his rights, some external force caused the untimeliness. Waldron- 15 Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing 16 facts entitling him to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). 17 Petitioner asserts that he was prevented from raising claims sooner because of his 18 ignorance and confusion about the law as a pro se litigant. Opp’n at 4-5. However, it is settled 19 “that a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary 20 circumstance warranting equitable tolling.” Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 21 2006). 22 Finally, petitioner cites to California law and argues that this court should proceed to the 23 merits of his claims because a court may correct an illegal sentence at any time. Opp’n at 6-7. 24 Assuming the argument is a correct statement of California law, “it does not in any way impugn 25 the constitutionality of the [federal] one-year limitation period . . . .” See Isabello v. Clark, No. 26 1:08-cv-01597 TAG HC, 2008 U.S. Dist. LEXIS 99157, at *13-14 (E.D. Cal. Nov. 25, 2008). 4 1 Petitioner has not articulated grounds for equitable tolling, and given the clear time requirement 2 set forth in § 2244(d)(1), petitioner’s argument lacks merit. 3 Petitioner has not shown he is entitled to either statutory or equitable tolling. His petition 4 must therefore be dismissed as untimely and the court need not address the issue of exhaustion. 5 Furthermore, petitioner’s request to stay this action must be denied, as it would be futile to stay 6 an action that is barred by the statute of limitations. 7 Accordingly, it is hereby RECOMMENDED that: 8 1. Respondent’s August 28, 2009 motion to dismiss be granted; 9 2. Petitioner’s October 16, 2009 motion to stay be denied; and 10 3. The Clerk be directed to close the case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 18 his objections petitioner may address whether a certificate of appealability should issue in the 19 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 20 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 21 enters a final order adverse to the applicant). 22 Dated: February 3, 2010. 23 24 25 26 5
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