(HC) Simmons v. Warden, Salinas Valley State Prison, No. 2:2009cv00108 - Document 31 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 09/13/10 ORDERING that respondent's 02/09/10 request for leave to file a supplemental reply brief 28 is granted. Also, RECOMMENDING that respondent's 04/ 02/09 motion to dismiss be granted. This action be dismissed as barred by the statute of limitations; and the district court decline to issue a certificate of appealability. Motion to Dismiss 11 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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(HC) Simmons v. Warden, Salinas Valley State Prison Doc. 31 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 WALTER F. SIMMONS, 10 Petitioner, 11 12 No. 2:09-cv-0108-GEB-JFM (HC) vs. WARDEN, S.V.S.P., 13 ORDER AND Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding pro se with an application for a writ of 16 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction, entered 17 pursuant to a plea of nolo contendere, to charges of kidnapping, dissuading a witness, and three 18 counts of threatening bodily injury. This matter is before the court on respondent’s motion to 19 dismiss this action on the grounds that it is barred by the statute of limitations and contains 20 unexhausted claims.1 For the reasons set forth below, this action is time-barred. The court will 21 not, therefore, reach the question of whether petitioner has exhausted state court remedies with 22 respect to the claims raised herein. 23 1 24 25 26 On December 23, 2009, this court issued findings and recommendations recommending that this action be dismissed as time-barred. By order filed December 31, 2009, the findings and recommendations were granted to provide the parties additional time to file evidence of plaintiff’s mental health history, both in support of and in opposition to, the pending motion. Both parties have now filed such evidence. Respondent has also filed a request for leave to file a supplemental reply brief. Good cause appearing, respondent’s request will be granted. 1 Dockets.Justia.com 1 Section 2244(d)(1) of title 28 of the United States Code provides: 2 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 (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; 7 8 (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 9 10 11 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 12 13 28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that “the time during which a properly filed 14 application for State post-conviction or other collateral review with respect to the pertinent 15 judgment or claim is pending shall not be counted toward” the limitations period. 28 U.S.C. § 16 2244(d)(2). 17 18 For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows: 19 20 1. On April 25, 2000, petitioner was convicted to his no contest plea and sentenced to twenty-seven years and four months in state prison. 21 2. On June 19, 2000, petitioner filed a notice of appeal. On December 15, 2000, 22 the state moved to dismiss the appeal as unauthorized because petitioner had waived his right to 23 appeal as part of the plea agreement pursuant to which his no contest plea was entered. On 24 January 4, 2001, the California Court of Appeal for the Third Appellate District granted the 25 motion and dismissed the appeal. 26 ///// 2 1 2 3 3. On October 9, 2001, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. That petition was denied by order filed October 29, 2001. 4. On January 4, 2002, petitioner filed a petition for writ of habeas corpus in the 4 California Court of Appeal for the Third Appellate District. That petition was denied by order 5 filed February 7, 2002. 6 5. On October 1, 2002, petitioner submitted a petition for writ of habeas corpus to 7 the California Supreme Court. That petition was denied in an order filed February 19, 2003 8 citing to In re Swain (1949) 34 Cal.2d 300, 304 and In re Duvall (1995) 9 Cal.4th 464, 474. 9 6. On November 20, 2008, petitioner filed a petition for writ of habeas corpus and 10 motion for coram nobis in the El Dorado County Superior Court. The petition and motion were 11 denied on December 18, 2008. 12 7. On January 13, 2009, the instant action was opened with the filing of a petition 13 for writ of habeas corpus signed by petitioner and delivered to prison officials for mailing on 14 January 7, 2009. 15 Respondent contends that petitioner’s conviction became final for purposes of the 16 statute of limitations on April 25, 2000, when his conviction was entered in the superior court. 17 Citing an unpublished set of findings, conclusions and recommendation by a United States 18 Magistrate Judge from the United States District Court for the Northern District of Texas, 19 respondent contends that petitioner’s appeal “should not be counted in determining whether the 20 one-year limitation’s period commenced” because the appeal was dismissed due to petitioner’s 21 waiver of his right to appeal. Motion to Dismiss, filed April 2, 2009, at 3. In the alternative, 22 respondent contends that even if the statute of limitations commenced forty days after dismissal 23 of his direct appeal, this action is still untimely. 24 Assuming arguendo that “the conclusion of direct review” in petitioner’s case 25 included his appeal to the state court of appeal, the statute of limitations commenced to run 26 against petitioner on or about February 14, 2001, forty days after the dismissal of his direct 3 1 appeal. See Smith v. Duncan, 297 F.3d 809, 813 (9th Cir. 2002), abrogation on other grounds 2 recognized by Moreno v. Harris, 245 Fed. Appx. 606 (9th Cir. 2007). It ran for two hundred 3 thirty-seven days until petitioner filed his petition for writ of habeas corpus in the El Dorado 4 County Superior Court on October 9, 2001. Following the denial of that petition on October 29, 5 2001, petitioner proceeded to the California Court of appeal on January 4, 2002, where his 6 petition was denied on February 7, 2002, and then to the California Supreme Court on October 1, 7 2002, which petition was denied on February 19, 2003. Relying on Evans v. Chavis, 546 U.S. 8 189 (2006), respondent contends that petitioner is not entitled to tolling for the intervals between 9 these petitions because of the delays between the decision of one court and petitioner’s filing at 10 the next level of the state court system. In the context of this case, the court need not determine 11 whether petitioner unreasonably delayed in proceeding between levels of the state court system 12 because even assuming that the statute of limitations was tolled for these intervals, it expired on 13 June 27, 2003, one hundred and twenty-eight days after the California Supreme Court denied the 14 petition filed in that court. The instant action was not filed until almost five and a half years 15 later, well after the limitation period expired.2 16 In opposition to the motion to dismiss, petitioner makes two arguments relevant to 17 the statute of limitations.3 First, petitioner contends that at the time of his no contest plea he did 18 not know that the prosecution had turned over “potentially exculpatory evidence” to petitioner’s 19 defense counsel, and that he did not learn of this evidence until after he was sentenced and 20 committed to the California Department of Corrections. Objection to Motion to Dismiss, filed 21 May 7, 2009, at 2. This allegation does not change in any material way the outcome of the 22 ///// 23 24 25 2 The November 2008 petition for relief filed in the state superior court did not revive the expired limitation period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 3 26 Petitioner did not sign his opposition; it is signed by an individual named Demetrius Ahmed Wright, who identifies himself as petitioner’s inmate assistant. 4 1 instant motion, because it is clear that petitioner knew of this potentially exculpatory evidence at 2 the time he filed his direct appeal in the state court of appeal. Id. 3 Petitioner also contends that he “has a long history of mental illness, and 4 traumatic brain injury, according to a notarized declaration of Ms. Susan Gramentz his mother, 5 and is still under care of CDC mental health staff.” Id. A habeas petitioner is entitled to 6 equitable tolling of the limitation period “only when ‘extraordinary circumstances beyond a 7 prisoner’s control make it impossible to file a petition on time’ and ‘the extraordinary 8 circumstances were the cause of his untimeliness.’ Grounds for equitable tolling under § 2244(d) 9 are “highly fact-dependent.”.” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting 10 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) and Whalem/Hunt v. Early, 233 F.3d 1146, 11 1148 (9th Cir.2000) (en banc)). 12 Petitioner is entitled to equitable tolling only if his mental health records show 13 that mental illness made it impossible for him to file a timely petition during the periods between 14 February 14, 2001and October 9, 2001; February 19, 2003 and November 20, 2008; and 15 December 18, 2008 and January 7, 2009, when the instant petition was filed. Petitioner need not 16 prove that he was actively mentally ill during all of the foregoing time periods, but given the fact 17 that almost six years elapsed between the denial of his state supreme court petition and the filing 18 of this action petitioner’s evidence must show that active mental illness precluded him from 19 filing a timely petition for a substantial period of time. Simply put, the evidence before the court 20 does not meet the required showing. 21 The mental health records provided by petitioner show that in 2000 and 2001 he 22 was diagnosed at various times as suffering from depression, anxiety, and a history attention 23 deficit hyperactivity disorder (ADHD). In September 2000, he was placed in the California 24 Department of Corrections and Rehabilitation’s mental health treatment program (CCCMS) and 25 set for annual interdisciplinary treatment team (IDTT) review. During that time he worked at a 26 prison job in the kitchen. He was treated until June 2002, when he was found to be stable and 5 1 scheduled for and IDTT meeting to discontinue CCCMS. He was readmitted to CCCMS in early 2 February 2003 for treatment of depression, anxiety and frustration. In August 2004, he was 3 diagnosed with moderate bipolar disorder in addition to depression. In January 2005, he was 4 found not to need any mental health services and in March 2005, an IDTT team found that he had 5 “been in clinical remission and free of psychotropic medication for one year.” Note from 6 3/29/2005 IDTT meeting, Mental Health Records filed by plaintiff on January 19, 2010. At that 7 time he was “clinically discharged” from the mental health program and transferred to general 8 population. Id. He remained out of the mental health program until 2009. 9 Review of the mental health records provided by petitioner shows that, while he 10 has suffered from and been treated for mental illness over the past eight years, neither the 11 severity nor the duration of the bouts of mental illness made it impossible for him to timely file a 12 petition for writ of habeas corpus. He is not, therefore, entitled to equitable tolling of the 13 limitation period. 14 For all of the foregoing reasons, this action is barred by the statute of limitations 15 and should be dismissed. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the 16 United States District Courts, “[t]he district court must issue or a deny a certificate of 17 appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 18 2254. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has 19 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The 20 court must either issue a certificate of appealability indicating which issues satisfy the required 21 showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). 22 Where, as here, the petition should be dismissed on procedural grounds, a 23 certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason 24 would find it debatable whether the district court was correct in its procedural ruling’; and (2) 25 ‘that jurists of reason would find it debatable whether the petition states a valid claim of the 26 ///// 6 1 denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) 2 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 3 After careful review of the entire record herein, this court finds that petitioner has 4 not satisfied the first requirement for issuance of a certificate of appealability in this case. 5 Specifically, there is no showing that jurists of reason would find it debatable whether this action 6 is barred by the statute of limitations. Accordingly, a certificate of appealability should not issue 7 in this action. 8 9 In accordance with the above, IT IS HEREBY ORDERED that respondent’s February 9, 2010 request for leave to file a supplemental reply brief is granted; and 10 IT IS HEREBY RECOMMENDED that: 11 1. Respondent’s April 2, 2009 motion to dismiss be granted; 12 2. This action be dismissed as barred by the statute of limitations; and 13 3. The district court decline to issue a certificate of appealability. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 16 days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 19 failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: September 13, 2010. 22 23 24 25 26 12simm0108.157 7