West v. Hatton et al, No. 4:2017cv01440 - Document 14 (N.D. Cal. 2017)

Court Description: ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY re 8 MOTION to Dismiss Petition for Writ of Habeas Corpus as Untimely filed by Shawn Hatton. Signed by Judge Phyllis J. Hamilton on 9/27/17. ***Civil Case Terminated. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 9/27/2017)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BARTON FARRIS WEST, 7 Petitioner, 8 v. 9 SHAWN HATTON, 10 Respondent. 11 United States District Court Northern District of California Case No. 17-cv-01440-PJH ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY Re: Dkt. No. 8 12 13 This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. 14 Respondent has filed a motion to dismiss on the ground that the petition is barred by the 15 statute of limitations. Petitioner filed an opposition and respondent filed a reply. For the 16 reasons that follow, the motion to dismiss is granted.1 DISCUSSION 17 18 Statute of Limitations 19 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed for 20 the first time a statute of limitations on petitions for a writ of habeas corpus filed by state 21 prisoners. Petitions filed by prisoners challenging noncapital state convictions or 22 sentences must be filed within one year of the latest of the date on which: (A) the 23 judgment became final after the conclusion of direct review or the time passed for 24 seeking direct review; (B) an impediment to filing an application created by 25 unconstitutional state action was removed, if such action prevented petitioner from filing; 26 27 28 1 Petitioner’s opposition only addresses the underlying claims of the petition, not the timeliness raised by respondent in the motion to dismiss. The court has still liberally construed the petition and opposition in analyzing the timeliness of the petition. 1 (C) the constitutional right asserted was recognized by the Supreme Court, if the right 2 was newly recognized by the Supreme Court and made retroactive to cases on collateral 3 review; or (D) the factual predicate of the claim could have been discovered through the 4 exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed 5 application for state post-conviction or other collateral review is pending is excluded from 6 the one-year time limit. Id. § 2244(d)(2). The one-year period may start running from "the expiration of the time for seeking 7 [direct] review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within 9 which a petitioner can file a petition for a writ of certiorari from the United States Supreme 10 Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 11 United States District Court Northern District of California 8 1157, 1159 (9th Cir. 1999). On March 28, 2011, petitioner pleaded no contest to second degree murder and 12 13 admitted a prior serious felony conviction. Motion to Dismiss (“MTD”) EX. A. On April 25, 14 2011, petitioner was sentenced to twenty years to life in prison. Id. He did not appeal the 15 conviction. On January 1, 2017, petitioner filed a habeas petition with the California 16 Supreme Court. Petition at 12, 26.2 The petition was denied without comment or citation 17 on February 15, 2017. Id. at 10. This federal petition was filed on February 27, 2017. Id. 18 at 43. Petitioner’s one-year limitations period began to run in 2011, when his conviction 19 20 became final, and expired in 2012. See 28 U.S.C. § 2244(d)(1). The instant federal 21 petition filed in 2017 is untimely absent tolling. Petitioner’s state habeas petition, also 22 filed in 2017, was filed after the expiration of the statute of limitations. Petitioner will not 23 receive statutory tolling for this petition because it was filed after the expiration of the 24 statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) 25 ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended 26 27 28 2 The court affords petitioner application of the mailbox rule as to all his habeas filings. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). 2 1 before the state petition was filed," even if the state petition was timely filed). Thus, this 2 petition is untimely. 3 It appears from the petition that petitioner argues for a delayed commencement of 4 the limitations period pursuant to § 2244(d)(1)(C). Under § 2244(d)(1)(C), the one-year 5 limitations period starts on the date on which "the constitutional right asserted was initially 6 recognized by the Supreme Court, if the right has been newly recognized by the 7 Supreme Court and made retroactively applicable to cases on collateral review." 8 Petitioner’s sole ground for federal habeas relief asserts that the California second 9 degree felony murder law is constitutionally invalid pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson was found to be retroactive on collateral review in 11 United States District Court Northern District of California 10 Welch v. United States, 136 S. Ct. 1257 (2016). 12 Even assuming that Johnson applied to petitioner’s conviction, the instant federal 13 petition is still untimely. Johnson was decided on June 26, 2015, so petitioner would 14 need to have filed the petition by June 26, 2016. The petition was not filed until February 15 27, 2017. Despite being provided several extensions to file an opposition, petitioner has 16 failed to explain why this petition was filed late. Nor does the statute of limitations 17 commence when the Supreme Court decided Welch, which stated that Johnson was 18 retroactive on collateral review. In Dodd v. United States, 545 U.S. 353 (2005), the 19 Supreme Court held that the limitations period runs from the date of the decision 20 announcing the substantive right, not the later date on which the right is declared to be 21 retroactive. Id. at 357, 360. The Court was considering the language from § 2255(f)(3) 22 which is nearly identical to § 2244(d)(1)(C). Id.; accord Johnson v. Robert, 431 F.3d 992, 23 992-93 (7th Cir. 2005) (applying Dodd to § 2244(d)(1)(C)). 24 Nor would the petition be timely under § 2244(d)(1)(D), i.e., if the limitations period 25 started on the date when “the factual predicate of the claim or claims presented could 26 have been discovered through the exercise of due diligence.” The time begins “'when the 27 prisoner knows (or through diligence could discover) the important facts, not when the 28 prisoner recognizes their legal significance.’” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 3 1 (9th Cir. 2001) (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)) (remanding 2 case to district court for further factual findings to determine when, with exercise of due 3 diligence, petitioner could have discovered facts to support prejudice prong of IAC claim). 4 Petitioner could have discovered the existence of a Supreme Court case had he 5 exercised due diligence after Johnson was issued. For all these reasons, the petition is 6 untimely. 7 CONCLUSION 8 Respondent’s motion to dismiss (Docket No. 8) is GRANTED. The petition is 9 DISMISSED. The clerk shall close the file. APPEALABILITY 10 United States District Court Northern District of California 11 The federal rules governing habeas cases brought by state prisoners require a 12 district court that enters a final order adverse to the petitioner to grant or deny a 13 certificate of appealability (“COA”) in the order. See Rule 11(a), Rules Governing § 2254 14 Cases, 28 U.S.C. foll. § 2254. 15 A petitioner may not appeal a final order in a federal habeas corpus proceeding 16 without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. 17 App. P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a 18 procedural question antecedent to the merits, for instance a dismissal on statute of 19 limitations grounds, as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). 20 “Determining whether a COA should issue where the petition was dismissed on 21 procedural grounds has two components, one directed at the underlying constitutional 22 claims and one directed at the district court’s procedural holding.” Id. at 484-85. “When 23 the district court denies a habeas petition on procedural grounds without reaching the 24 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, 25 at least, that jurists of reason would find it debatable whether the petition states a valid 26 claim of the denial of a constitutional right and that jurists of reason would find it 27 debatable whether the district court was correct in its procedural ruling.” Id. at 484. As 28 each of these components is a “threshold inquiry,” the federal court “may find that it can 4 1 dispose of the application in a fair and prompt manner if it proceeds first to resolve the 2 issue whose answer is more apparent from the record and arguments.” Id. at 485. 3 Supreme Court jurisprudence “allows and encourages” federal courts to first resolve the 4 procedural issue, as was done here. See id. 5 Here, the court declines to issue a COA regarding the procedural holding or the 6 underlying claim because reasonable jurists would not find the court’s findings debatable. 7 The court therefore DENIES a COA. 8 IT IS SO ORDERED. 9 Dated: September 27, 2017 10 United States District Court Northern District of California 11 PHYLLIS J. HAMILTON United States District Judge 12 13 14 \\candoak.cand.circ9.dcn\data\users\PJHALL\_psp\2017\2017_01440_West_v_Hatton_(PSP)\17-cv-01440-PJH-mtd.docx 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 BARTON FARRIS WEST, Case No. 17-cv-01440-PJH Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 SHAWN HATTON, et al., Defendants. 9 10 United States District Court Northern District of California 11 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 12 13 14 15 16 That on September 27, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 17 18 19 Barton Farris West Correctional Training Facility (CTF) P.O. Box 689 Soledad, CA 93960-0689 20 21 22 Dated: September 27, 2017 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 28 By:________________________ Kelly Collins, Deputy Clerk to the Honorable PHYLLIS J. HAMILTON 6