Peng v. Tilton et al, No. 3:2007cv04797 - Document 28 (N.D. Cal. 2010)
Court Description: ORDER GRANTING 25 MOTION TO DISMISS PETITION AS UNTIMELY. Signed by Judge Maxine M. Chesney on August 3, 2010. (mmcsec, COURT STAFF) (Filed on 8/3/2010)
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Peng v. Tilton et al Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 KUN SHAN PENG, ) ) Petitioner, ) ) vs. ) ) JAMES TILTON, Director of the ) California Department of ) Corrections; BEN CURRY, Warden, ) ) Respondents. ) ______________________________ ) No. C 07-4797 MMC (PR) ORDER GRANTING MOTION TO DISMISS PETITION AS UNTIMELY (Docket Nos. 25 & 26) On September 18, 2007, petitioner, a California prisoner then incarcerated at San 18 Quentin State Prison1 and proceeding pro se, filed the above-titled petition for a writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. Thereafter, respondent filed a motion to dismiss 20 on the ground the petition is barred by the applicable one-year statute of limitations. See 28 21 U.S.C. § 2244(d). The Court denied the motion, finding respondent had incorrectly 22 calculated the limitations period. (Order, filed Apr. 30, 2009, at 4:13-5:8.) Now pending 23 before the Court is respondent’s renewed motion to dismiss the petition as untimely; 24 petitioner has filed opposition thereto.2 BACKGROUND 25 26 1 Petitioner currently is incarcerated at the California Substance Abuse Treatment Facility, in Corcoran. 27 28 2 Petitioner’s opposition is titled “Motion to Dismiss ‘Respondent’s Renewed Motion to Dismiss’”. (Docket No. 26.) Dockets.Justia.com 1 On August 5, 1992, in the Superior Court of Santa Clara County (“Superior Court”), 2 petitioner pleaded guilty to second degree murder. (Mot. Dismiss Ex. 1 at 9.)3 On October 3 9, 1992, he was sentenced to a term of fifteen years to life in state prison. (Mot. Dismiss Ex. 4 2.) Petitioner did not appeal his conviction or sentence. (Pet. at 3.) On April 23, 1997, petitioner filed a petition for a writ of habeas corpus in the 5 6 Superior Court. (Mot. Dismiss Ex. 4.) On May 23, 1997, the Superior Court denied the 7 petition. (Mot. Dismiss Ex. 5.) 8 9 United States District Court For the Northern District of California 10 Also on April 23, 1997, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Mot. Dismiss Ex. 3.) On July 30, 1997, the Supreme Court denied the petition. (Id.) 11 More than nine years later, on January 22, 2007, the Superior Court denied another 12 state habeas petition by which petitioner had challenged his conviction. (Mot. Dismiss Ex. 13 6.)4 14 Also in 2007, petitioner subsequently filed several additional state habeas petitions. 15 (Mot. Dismiss Exs. 7-10.) Petitioner’s final state habeas petition, filed in the California 16 Supreme Court on May 4, 2007, was denied on August 29, 2007. (Mot. Dismiss Ex. 11.) 17 On September 28, 2007, petitioner filed the instant petition, claiming (1) his 18 conviction is invalid because he acted in self-defense, (2) the trial court erroneously ruled his 19 confession could be admitted against him, (3) he was incompetent to plead guilty, and (4) his 20 attorney provided ineffective assistance. 21 22 23 24 3 26 4 Unless otherwise noted, all of respondent’s exhibits referenced hereinafter are those filed by respondent in support of respondent’s first motion to dismiss (Docket No. 13), which 25 exhibits respondent cites in support of the instant renewed motion to dismiss. In connection with the instant renewed motion to dismiss, neither party has provided evidence to document the date on which such petition was filed. In his opposition to 27 respondent’s prior motion to dismiss, however, petitioner asserted he had mailed a petition to the Superior Court on November 16, 2006 (Opp. (Docket No. 14) at 9), which, he stated, 28 was denied by the above-referenced order (see id. (citing “Answer exhibit 6")). 2 DISCUSSION 1 2 3 Legal Standard The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law 4 on April 24, 1996, and imposed for the first time a statute of limitations on petitions for a 5 writ of habeas corpus filed by state prisoners. The statute sets forth four different dates from 6 which the limitations period may run. See 28 U.S.C. § 2244(d)(1)(A)-(D). The applicable 7 statutory provision in the instant matter is § 2244(d)(1)(A), which provides that petitions 8 filed by prisoners challenging non-capital state convictions or sentences must be filed within 9 one year from “the date on which the judgment became final by conclusion of direct review 10 United States District Court For the Northern District of California A. or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 11 When, as in the instant case, a defendant does not seek direct review of his conviction, 12 the conviction becomes final on the date the time for seeking direct review expires. Smith v. 13 Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002). In California, a defendant has sixty days after 14 the date of the superior court judgment in which to file an appeal to the California Court of 15 Appeal. See Cal. Rule of Court 30(a)(1), 30.1. Here, judgment was entered in the Superior 16 Court on October 9, 1992 (Mot. Dismiss Ex. 2); the conviction thus became final sixty days 17 thereafter, on December 8, 1992. Because petitioner’s conviction became final prior to 18 AEDPA’s enactment on April 24, 1996, the one-year statute of limitations began to run on 19 April 25, 1996, and expired one year later, on April 24, 1997. See Malcom v. Payne, 281 20 F.3d 951, 955 (9th Cir. 2002).5 Consequently, under applicable Ninth Circuit case law, 21 petitioner had until April 24, 1997 to file a timely federal habeas petition. Petitioner, 22 however, did not file the instant petition until more than ten years later, on September 18, 23 2007. Accordingly, unless petitioner is entitled to statutory or equitable tolling of the statute 24 25 5 When reviewing whether a petition has been timely filed under AEDPA, the court calculates the one-year period in accordance with Rule 6 of the Federal Rules of Civil 26 Procedure, the general rule for computing time in federal courts. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Specifically, under Rule 6, the day of the event that 27 triggers the time period is excluded from the computation, while the last day of the time period is included. Fed. R. Civ. P. 6(a)(1). 28 3 1 of limitations, the claims challenging the conviction are untimely. 2 B. Pursuant to 28 U.S.C. § 2244(d)(2), the one-year statute of limitations is tolled for the 3 4 “time during which a properly filed application for State post-conviction or other collateral 5 review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 6 The statute of limitations is not tolled, however, during the period between the date on which 7 the relevant final decision under 28 U.S.C. § 2244(d)(1) is issued and the date on which the 8 first state collateral challenge is filed. Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999). 9 United States District Court For the Northern District of California Statutory Tolling Here, as noted, the statute began to run on April 25, 1996, and continued to run for 10 364 days, until the day petitioner filed state habeas petitions in the both the Superior Court 11 and the California Supreme Court, on April 23, 1997. Although the Superior Court denied 12 petitioner’s habeas petition on May 23, 1997, the statute was tolled continuously until 13 July 30, 1997, the date on which the California Supreme Court denied petitioner’s habeas 14 petition. See Carey v. Saffold, 536 U.S. 214, 219-20 (2006) (holding under § 2244(d)(2) 15 one-year limitations period is tolled from time California prisoner files first state habeas 16 petition until date on which state Supreme Court rejects final collateral challenge). 17 Consequently, because the statute of limitations had run for 364 days before it was tolled, 18 petitioner had one day, i.e., until July 31, 1997, to file a timely federal habeas petition. As 19 petitioner did not file the instant petition until more than ten years thereafter, statutory 20 tolling does not render the petition timely.6 21 C. 22 Equitable Tolling AEDPA’s one-year statute of limitations is subject to equitable tolling. Holland v. 23 Florida, --- S. Ct. ----, 2010 WL 2346549, *12 (U.S. June 14, 2010). A petitioner is entitled 24 to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and 25 6 Assuming petitioner filed a petition in the Superior Court on November 16, 2006, such filing did not initiate a new limitations period, nor is petitioner entitled to statutory tolling for any state habeas petition filed after the statutory limitations period expired on July 27 31, 1997. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state 28 petition was filed.”) 26 4 1 (2) that some extraordinary circumstance stood in his way and prevented timely filing. Id. 2 (internal quotation and citation omitted). United States District Court For the Northern District of California 3 In his opposition to respondent’s prior motion to dismiss, petitioner argued he suffered 4 from a “mental disease” that “prevented [him] from understanding the nature of [the] 5 proceedings” such that he “did not think of exerting legal action to submit the direct appeal.” 6 (Opp. at 6-7.) Based on petitioner’s earlier argument, respondent, in the instant motion to 7 dismiss, assumes petitioner is arguing he is entitled to equitable tolling on the basis of mental 8 illness. Although petitioner, in his opposition to the instant motion, does not assert he is 9 entitled to equitable tolling on the basis of mental illness or on any other ground, petitioner’s 10 wife has submitted exhibits on petitioner’s behalf. Those exhibits include a declaration in 11 which she states that petitioner, for the first four years of his incarceration, was 12 overmedicated for depression, which led to petitioner’s losing communication with his 13 family for that period of time. (See Shiao-Lin Peng’s Exhibits, received May 6, 2010, at 2). 14 In view of petitioner’s pro se status, the Court will assume petitioner is reasserting his 15 equitable tolling argument in his opposition to the renewed motion to dismiss. The Court 16 need not decide, however, whether such circumstances qualify as extraordinary 17 circumstances for purposes of equitable tolling. First, even if the Court assumes petitioner 18 was unable to file a direct appeal due to mental illness, any such infirmity would not affect 19 the running of the statute of limitations because petitioner’s conviction became final on 20 December 8, 1992 and, under AEDPA, the limitations period, as noted, did not start to run 21 until more than three years later, on April 25, 1996. Further, if the Court assumes petitioner 22 was unable, due to overmedication, to diligently pursue state court proceedings for the first 23 four years of his incarceration, such circumstance would not explain why, following the 24 California Supreme Court’s denial of petitioner’s first habeas corpus petition on July 30, 25 1997, petitioner waited more than nine years to file any further collateral challenge to his 26 conviction. 27 28 Based on the above, the Court concludes equitable tolling does not render the petition timely. 5 1 2 Actual Innocence 3 Lastly, petitioner argued in his opposition to respondent’s prior motion to dismiss that 4 all of his untimely claims should be allowed to proceed because he is actually innocent of the 5 crimes for which he was convicted. Although petitioner has not raised such argument in his 6 opposition to the renewed motion to dismiss, respondent has addressed the argument. The 7 Court next addresses such argument as well. 8 9 United States District Court For the Northern District of California D. A federal court may hear the merits of successive, abusive, or procedurally defaulted claims where the failure to hear the claims would constitute a “miscarriage of justice.” 10 Sawyer v. Whitley, 505 U.S. 333, 339-40 1992). As the Supreme Court explained in Schlup 11 v. Delo, 513 U.S. 298 (1995), the exception is limited to habeas petitioners who can show 12 that “a constitutional violation has probably resulted in the conviction of one who is actually 13 innocent.” Id. at 327. To date, neither the Supreme Court nor the Ninth Circuit has decided 14 whether AEDPA’s statute of limitations is subject to such exception. See Majoy v. Roe, 296 15 F.3d 770, 776 (9th Cir. 2002) (reserving issue of whether actual innocence exception applies 16 to time-barred petitions; remanding to district court to determine whether actual innocence 17 claim established). Here, as discussed below, petitioner has identified no evidence that 18 would support a claim of actual innocence, and, consequently, this Court likewise will not 19 address the general availability of the exception. 20 In order for barred claims to pass through “Schlup’s gateway,” see id., a petitioner 21 must establish his factual innocence of the crime, and not mere legal insufficiency. See 22 Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 23 882-83 (9th Cir. 2003). “To be credible, such a claim [of actual innocence] requires [the] 24 petitioner to support his allegations of constitutional error with new reliable evidence — 25 whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 26 physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. It is not 27 enough that the evidence show the existence of reasonable doubt; the petitioner must show 28 “that it is more likely than not that no ‘reasonable juror’ would have convicted him” in light 6 1 2 Here, none of petitioner’s claims implicate the question of factual innocence as 3 opposed to legal insufficiency. In particular, none of the claims contain allegations of factual 4 innocence based on new reliable evidence that was not presented at the time of trial, nor has 5 petitioner shown it is more likely than not that no reasonable jury would have found him 6 guilty beyond a reasonable doubt based on any such evidence. Accordingly, the Court finds 7 the actual innocence exception is not applicable herein. 8 CONCLUSION 9 10 United States District Court For the Northern District of California of the new evidence. Id. at 329. For the reasons stated above, respondent’s motion to dismiss the petition as untimely is hereby GRANTED. 11 This order terminates Docket Nos. 25 and 26. 12 The Clerk shall enter judgment and close the file. 13 IT IS SO ORDERED. 14 15 16 DATED: August 3, 2010 _________________________ MAXINE M. CHESNEY United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 7
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