Granado v. Evens, No. 5:2007cv04596 - Document 10 (N.D. Cal. 2009)

Court Description: ORDER GRANTING MOTION TO DISMISS re 4 . Signed by Judge Jeremy Fogel on 2/23/09. (dlm, COURT STAFF) (Filed on 2/26/2009)
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Granado v. Evens Doc. 10 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 EDWARD M. GRANADO, Petitioner, 13 14 No. C 07-04596 JF (PR) ) ) ) ) ) ) ) ) ) ) ) ) vs. 15 EVANS, Warden, 16 Respondents. 17 ORDER GRANTING MOTION TO DISMISS (Docket Nos. 4, 8 & 9) 18 19 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas 20 corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as 21 untimely (Docket No. 4). Petitioner’s motion for leave to file opposition (Docket No. 8) 22 is GRANTED. Petitioner’s motion for ruling (Docket No. 9) is DENIED as moot. For 23 the reasons discussed below, the Court grants Respondent’s motion to dismiss the petition 24 as untimely. 25 26 BACKGROUND 27 On January 24, 2002, Petitioner was convicted in Santa Clara County Superior 28 Court of two counts of bank robbery, pursuant to California Penal Code sections 211Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\HC.07\Granado596_grant-mtd (untimely).wpd 1 1 212.5(c), and sentence enhancements for prior convictions were found to be true. The 2 trial court sentenced Petitioner to a term of 55 years to life in state prison. Petitioner 3 appealed his conviction, and the state appellate court affirmed. His petition for review to 4 the California Supreme Court was denied on October 15, 2003. Petitioner thereafter filed 5 petitions for a writ of habeas corpus in all three levels of the California courts, and all 6 three petitions were denied, including the California Supreme Court’s denial on August 7 10, 2005. Petitioner filed the instant federal habeas petition on September 5, 2007. 8 DISCUSSION 9 10 A. A. Standard of Review 11 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became 12 law on April 24, 1996, and imposed for the first time a statute of limitation on petitions 13 for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners 14 challenging non-capital state convictions or sentences must be filed within one year of the 15 latest of the date on which: (1) the judgment became final after the conclusion of direct 16 review or the time passed for seeking direct review; (2) an impediment to filing an 17 application created by unconstitutional state action was removed, if such action prevented 18 petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme 19 Court, if the right was newly recognized by the Supreme Court and made retroactive to 20 cases on collateral review; or (4) the factual predicate of the claim could have been 21 discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during 22 which a properly filed application for state post-conviction or other collateral review is 23 pending is excluded from the one-year time limit. Id. § 2244(d)(2). 24 A state prisoner with a conviction finalized after April 24, 1996, as in the case of 25 Petitioner, ordinarily must file his federal habeas petition within one year of the date his 26 process of direct review came to an end. See Calderon v. United States District Court 27 (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by 28 Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\HC.07\Granado596_grant-mtd (untimely).wpd 2 1 The one-year period generally will run from “the date on which the judgment became 2 final by conclusion of direct review or the expiration of the time for seeking such 3 review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review” includes the period within which a petitioner can file a petition for 4 5 a writ of certiorari from the United States Supreme Court, whether or not the petitioner 6 actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 7 Accordingly, if a petitioner fails to seek a writ of certiorari from the United States 8 Supreme Court, the AEDPA’s one-year limitations period begins to run on the date the 9 ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v. Castro, 10 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, 11 his conviction became final 90 days after the California Supreme Court denied review); 12 Bowen, 188 F.3d at 1159 (same). As the Eighth Circuit put it: “[T]he running of the 13 statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion 14 of all direct criminal appeals in the state system, followed by either the completion or 15 denial of certiorari proceedings before the United States Supreme Court; or (ii) if 16 certiorari was not sought, then by the conclusion of all direct criminal appeals in the state 17 system followed by the expiration of the time allotted for filing a petition for the writ.” 18 Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S. 1187 19 (1999). Since Petitioner did not file a petition for certiorari, his conviction became final 20 21 ninety days after the California Supreme Court denied review on October 15, 2003, i.e., 22 on January 13, 2004. Absent tolling, Petitioner had one year, i.e., until January 13, 2005, 23 to file a federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 24 2001) (calculating AEDPA’s one-year limitation period according to Federal Rule of 25 Civil Procedure 6(a)). The instant petition was not filed until August 28, 2007, however. 26 It is untimely unless the limitation period was tolled for a substantial period of time. 27 B. 28 Statutory Tolling Section 2244(d)(2) tolls the one-year limitation period for the “time during which a Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\HC.07\Granado596_grant-mtd (untimely).wpd 3 1 properly filed application for State post-conviction or other collateral review with respect 2 to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The 3 circumstances under which a state petition will be deemed “pending” for purposes of § 4 2244(d)(2) is a question of federal law. Welch v. Carey, 350 F.3d 1079, 1080 (9th Cir. 5 2003) (en banc). An application for collateral review is “pending” in state court “as long 6 as the ordinary state collateral review process is ‘in continuance’ – i.e., ‘until the 7 completion of’ that process.” Carey v. Saffold, 536 U.S. 214, 219-20 (2002). In other 8 words, until the application has achieved final resolution through the State’s post- 9 conviction procedures, by definition it remains “pending.” Id. at 220. In California, this 10 means that the statute of limitations is tolled from the time the first state habeas petition is 11 filed until the California Supreme Court rejects the petitioner’s final collateral challenge, 12 as long as the petitioner did not “unreasonably delay” in seeking review. Id. at 221-23. 13 However, if there is any gap between the completion of one round of review and the 14 commencement of another round of state habeas review, the petitioner is not entitled to 15 tolling during the gap. See Delhomme v. Ramirez, 340 F.3d 817, 821 (9th Cir.2003); 16 Biggs v. Duncan, 339 F.3d at 1046-47, 1048 (9th Cir. 2003). 17 Petitioner sought collateral review by filing habeas petitions in the state courts. 18 Although the actual date of the filing of the first petition in state superior court is not 19 available, Respondent is willing to give Petitioner the benefit of the greatest possible 20 tolling and assumes that Petitioner filed his habeas petition in state superior court prior to 21 the date of finality for his direct appeal, thereby tolling the start of the statute of 22 limitations from running until the superior court’s denial on February 23, 2004. (Resp’t 23 Mot. at 3, note 1.) Respondent does not contest that the limitations period was tolled 24 while Petitioner’s habeas petition was pending in the California Court of Appeal until 25 April 21, 2004, when the state appellate court denied review. However, Respondent 26 argues that Petitioner is not entitled to any “gap tolling” for the 169 days, or five and a 27 half months, between the denial of his habeas petition by the California Court of Appeal 28 on April 21, 2004 and his filing of a new habeas petition in the California Supreme Court Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\HC.07\Granado596_grant-mtd (untimely).wpd 4 1 on October 7, 2004. See Delhomme, 340 F.3d at 821. The Court agrees that this five and 2 a half months period is “far longer” than the 30 to 60 days “that most states provide for 3 filing an appeal,” and is thus not a “reasonable” delay within the meaning of Carey’s 4 definition of the term “pending.” Evans v. Chavis, 126 S. Ct. 846, 852 (2006) (finding 5 six-month delay did not fall within Carey's definition of “pending”). Therefore, Petitioner 6 had 196 days remaining on his limitations period, i.e., until February 22, 2006, to file a 7 timely federal habeas petition after the state high court denied review. However, 8 Petitioner did not file his first federal habeas petition, Case No. 06-03968 JF (PR), until 9 June 27, 2006, which was 125 days after the limitations period had expired on February 10 11 22, 2006. Petitioner argues in his opposition that his first federal habeas petition was 12 dismissed through no fault of his own. To whatever extent Petitioner is arguing for 13 equitable tolling, this claim has no merit. First of all, the period of limitation is not tolled 14 during the time Petitioner’s first federal habeas petitioner was filed, i.e., from June 27, 15 2006, until it was dismissed on April 16, 2007. An application for federal habeas corpus 16 review is not an “application for State post-conviction or other collateral review” within 17 the meaning of § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 180-81 (2001). Thus, the 18 running of the limitation period is not tolled for the period during which a petition is 19 pending in federal court. Id. at 181. Most importantly, Petitioner’s first federal habeas 20 petition was filed after the limitation period had already expired as discussed above. 21 Accordingly, Petitioner has set forth no basis to justify that an “extraordinary exclusion” 22 should apply to him to save the instant petition from being untimely. Miranda v. Castro, 23 292 F.3d 1063, 1065 (9th Cir. 2002) (petitioner bears burden of showing that equitable 24 tolling should apply to him). 25 In sum, with statutory tolling, Petitioner had until February 22, 2006 to file a 26 timely federal habeas petition. Petitioner filed the instant petition on August 28, 2007, 27 which is eighteen months after the statute of limitations had expired. Accordingly, the 28 instant second federal petition is untimely. Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\HC.07\Granado596_grant-mtd (untimely).wpd 5 CONCLUSION 1 2 3 For the foregoing reasons, respondent’s motion to dismiss the petition as untimely (Docket No. 4) is GRANTED. 4 This order terminates Docket Nos. 4, 8 and 9. 5 IT IS SO ORDERED. 6 2/23/09 DATED: ____________________ JEREMY FOGEL United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\HC.07\Granado596_grant-mtd (untimely).wpd 6