Jones v. Johnson, No. 3:2015cv02023 - Document 10 (S.D. Cal. 2016)

Court Description: ORDER Granting 8 Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus with Prejudice. The Clerk of Court shall close the case. Signed by Judge Gonzalo P. Curiel on 5/4/16. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AHMANA DIA JONES, Case No.: 15cv2023 GPC (RBB) Petitioner, 12 13 v. 14 ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE D.K. JOHNSON, Respondent. 15 16 [Dkt. No 8] 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner Ahmana Dia Jones (“Petitioner”), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 on September 10, 2015. (Dkt. No. 1.) Respondent D.K. Johnson (“Respondent”) filed a Motion to Dismiss. (Dkt. No. 8.) Petitioner did not file an opposition. The Court has reviewed the Petition, Respondent’s Motion to Dismiss, and the Lodgments. For the reasons discussed below, the Court GRANTS Respondent’s Motion to Dismiss the Petition with prejudice. 1 15cv2023 GPC (RBB) 1 FACTUAL BACKGROUND 2 On the evening of August 29, 2008, Petitioner, who was working as a prostitute, 3 picked up Angel Torres in a borrowed car and drove to a parking structure to have sex. 4 (Dkt. No. 9-4, Lodgment No. 4, People v. Jones, No. D055087, slip op. at 3 (Cal. Ct. 5 App. Aug. 9, 2010).) Torres paid Petitioner sixty dollars to engage in sexual activities 6 with her in the car. (Id.) During these activities, an argument arose between the two. 7 (Id.) Petitioner asked Torres for more money to continue having sex with her, but Torres 8 stated that he did not have more money. (Id.) Petitioner then instructed Torres to get off 9 of her, and he complied with this instruction. (Id.) 10 Petitioner threatened to drive away, leaving Torres in the parking structure. (Id.) 11 To prevent this from occurring, Torres took the keys out of the ignition. (Id.) This made 12 Petitioner upset. (Id.) She exited the vehicle, opened the hood of the car, and took a gun 13 out of the engine compartment. (Id.) Still inside the car, Torres heard a shot come from 14 the driver’s side of the vehicle. (Id.) Torres began to exit the car and heard two more 15 shots. (Id.) In total, he was shot twice in the upper torso and once in the neck. (Id. at 4.) 16 Torres ran out of the parking structure and collapsed on a freeway nearby. (Id.) He was 17 later taken to a hospital for treatment and was released the next day. (Id.) 18 Petitioner testified in her own defense, maintaining that Torres had become 19 aggressive when she asked him for more money. (Id.) Petitioner contends that she 20 worried about her safety and became scared when Torres took the keys from the ignition. 21 (Id.) She testified that she grabbed an object from Torres’s pants that turned out to be a 22 gun. (Id.) She asserted that Torres reached for her hand as she raised the gun, causing it 23 to fire. (Id.) Petitioner asserted that Torres threatened to kill her, and that when she 24 25 26 27 28 2 15cv2023 GPC (RBB) 1 attempted to exit the car, it was locked. (Id.) She contended that she then shot the gun at 2 Torres two more times, causing him to leave the vehicle and run away. (Id.) 3 Petitioner was charged with attempted murder and shooting at an occupied motor 4 vehicle. (Dkt. No. 9-2, Lodgment No. 2 at 6.) A jury found Petitioner guilty of 5 attempted voluntary manslaughter and shooting at an occupied motor vehicle. (Dkt. No. 6 9-4, Lodgment 4 at 4.) On March 11, 2009, Petitioner was sentenced to a term of fifteen 7 years and four months, plus twenty-five years to life. (Lodgment 1.) 8 9 PROCEDURAL BACKGROUND A. Direct Appeal 10 On November 3, 2009, Petitioner, with counsel, appealed her conviction to the 11 California Court of Appeal. (Dkt. No. 9-2, Lodgment No. 2.) On August 9, 2010, the court 12 of appeal affirmed the judgment of the Superior Court of San Diego County. (Dkt. No. 9- 13 4, Lodgment No. 4.) Petitioner, with counsel, filed a petition for review with the California 14 Supreme Court on September 13, 2010. (Dkt. No. 9-5, Lodgment No. 5.) On November 15 17, 2010, the California Supreme Court denied the petition for review without citation or 16 comment. (Dkt. No. 9-6, Lodgment No. 6.) 17 B. On March 24, 20111, Petitioner, proceeding pro se, filed a petition for writ of 18 19 State Habeas Corpus Proceedings habeas corpus in the San Diego County Superior Court on the grounds of ineffective 20 21 22 23 24 25 26 27 28 1 Under the mailbox rule, the Court considers a petition filed on the date a petitioner hands it to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citations omitted). The Ninth Circuit has held that for purposes of calculating AEDPA limitation period the Houston mailbox rule applies to both a pro se prisoner’s: (1) federal habeas petition and (2) state court habeas petition. Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000). 3 15cv2023 GPC (RBB) 1 assistance of counsel and incorrect jury instructions. (Dkt. No. 9-7, Lodgment No. 7.) 2 This petition was denied on July 29, 2011. (Dkt. No. 9-8, Lodgment No. 8.) Almost 3 three years later, she filed a petition for writ of habeas corpus in the California Court of 4 Appeal on February 4, 2014, on the grounds that her trial attorney was “ineffective in 5 conducting a reasonable defense,” and failing to investigate her only possible defense. 6 (Dkt. No. 9-9, Lodgment No. 9.) That petition was denied on February 25, 2014. (Dkt. 7 No. 9-10, Lodgment No. 10.) 8 On June 19, 2014, Petitioner filed a habeas corpus petition with the California 9 Supreme Court, on the same grounds as those raised in her federal Petition. (Dkt. No. 9- 10 11, Lodgment No. 11.) The California Supreme Court denied her petition on September 11 10, 2014. (Dkt. No. 9-12, Lodgment No. 12.) Petitioner filed her Petition in this Court 12 on September 3, 2015 alleging ineffective assistance of counsel for failing to conduct a 13 reasonable pre-trial investigation, and failing to investigate her only possible defense 14 when requested to do so and trial court sentencing error for imposing an illegal sentence 15 enhancement of 25 years to life. (Dkt. No. 1. Pet. at 6-8.) 16 DISCUSSION 17 In the Motion to Dismiss, Respondent contends that Petitioner’s claims “are 18 untimely because the statute of limitations expired before she filed her federal Petition.” 19 (Dkt. No. 8, Mot. Dismiss at 2.) Respondent argues that Petitioner’s case became final 20 on February 15, 2011, and contends that without tolling, the limitations period expired on 21 February 15, 2012. (Id. at 4 (citing Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 22 2000); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).) Asserting that the Petition 23 was filed on September 3, 2015, Respondent reasons that without statutory or equitable 24 tolling, it is untimely. (Id. at 4 (citing 28 U.S.C. § 2244(d)(1); id.(d)(2).) 25 26 27 28 4 15cv2023 GPC (RBB) 1 2 3 4 The statute of limitations for federal habeas corpus petitions is set forth in § 2244(d), which provides in relevant part as follows: (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 -- 5 6 (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; 7 8 9 10 11 12 (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; (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 13 14 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 U.S.C. § 2244(d)(1). Respondent alleges that the Petition is barred based on 28 U.S.C. § 2244(d)(1)(A),”the date on which the judgment of conviction becomes final by the conclusion of direct review.” A federal petition for writ of habeas corpus may be dismissed with prejudice when it was not filed within AEDPA’s one-year statute of limitations. See Jiminez v. Rice, 276 F.3d 478, 483 (9th Cir. 2001). The statute of limitations is a threshold issue that must be resolved before the merits of individual claims. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Here, the California Court of Appeal affirmed Petitioner’s conviction and sentence on August 9, 2010. (Dkt. No. 9-4, Lodgment No. 4.) She then petitioned the California 5 15cv2023 GPC (RBB) 1 Supreme Court for review, and the court denied her petition on November 17, 2010. 2 (Dkt. No. 9-5, Lodgment Nos. 5, 6.) Petitioner did not file a petition for writ of certiorari 3 with the United States Supreme Court. 4 According to United States Supreme Court Rule 13, a petition for writ of certiorari 5 must be filed within ninety days of the entry of an order denying discretionary review by 6 the state supreme court. S. Ct. R. 13. When a habeas petitioner seeks direct review by 7 the state’s highest court but does not file a petition with the United States Supreme Court, 8 the judgment becomes final when the prisoner’s time to petition the Supreme Court 9 expires. Bowen, 188 F.3d at 1158-59. 10 Petitioner’s judgment became final for the purposes of AEDPA on February 15, 11 2011, ninety days after the California Supreme Court denied her petition for review. See 12 id.; S. Ct. R. 13. Pursuant to § 2244(d), the statute of limitations for federal habeas 13 corpus relief began to run on February 16, 2011, the day after the judgment became final. 14 See 28 U.S.C. § 2244(d)(1)(A); Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) 15 (explaining that the one-year statute of limitations under AEDPA begins to run the day 16 after the conviction becomes final). The one-year statute of limitations expired on 17 February 16, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) 18 (“In computing any amount of time prescribed or allowed . . . by any applicable statute, 19 the day of the act, event, or default from which the designated period of time runs shall 20 not be included.” (quoting Fed. R. Civ. P. 6(a))). 21 Petitioner’s federal habeas petition was filed on September 3, 2015, over three 22 years later. Therefore, unless Petitioner is entitled to statutory or equitable tolling, her 23 action is barred by AEDPA’s statute of limitations. 24 //// 25 26 27 28 6 15cv2023 GPC (RBB) 1 2 A. Statutory Tolling Respondent asserts that none of Petitioner’s state petitions for writ of habeas 3 corpus qualify for statutory tolling. (Id. at 4.) Respondent explains that her petitions in 4 the San Diego Superior Court and the California Court of Appeal were denied as 5 untimely, precluding them from qualifying for statutory tolling. (Id. at 4-5.) Respondent 6 additionally argues that through the “look through” doctrine, the California Supreme 7 Court’s denial of the petition in that court was also on the basis of untimeliness. (Id. at 5- 8 6.) Respondent maintains, however, that even if Petitioner’s state petitions were properly 9 filed, her federal Petition is nevertheless untimely. (Id. at 6-7.) 10 The statute of limitations under AEDPA is tolled during periods in which a 11 “properly filed” habeas corpus petition is “pending” in the state courts. 28 U.S.C. § 12 2244(d)(2). The statute specifically provides, “The time during which a properly filed 13 application for State post-conviction or other collateral review with respect to the 14 pertinent judgment or claim is pending shall not be counted toward any period of 15 limitation under this subsection.” Id.; see also Pace v. DiGuglielmo, 544 U.S. 408, 410 16 (2005). “[A]n application is ‘properly filed’ when its delivery and acceptance are in 17 compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 18 U.S. 4, 8 (2000) (explaining that typical filing requirements include all relevant time 19 limits). 20 The interval between the disposition of one state petition and the filing of another 21 may be tolled under “interval tolling.” Carey v. Saffold, 536 U.S. 214, 223 (2002). The 22 statute of limitations is tolled from the time a petitioner’s first state habeas petition is 23 filed until state collateral review is concluded, but it is not tolled before the first state 24 25 26 27 28 7 15cv2023 GPC (RBB) 1 collateral challenge is filed. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007) (citing 2 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)). 3 Here, even if Petitioner’s state court petitions were properly and timely filed, the 4 Court finds that she is not entitled to statutory tolling. As stated above, the limitations 5 period began to run on February 16, 2011. Petitioner’s state court petition for a writ of 6 habeas corpus was filed in San Diego County Superior Court on March 24, 2011. (Dkt. 7 No. 9-7, Lodgment No. 7.) This 36-day span is not statutorily tolled and counts toward 8 the one-year limitations period. See Thorson, 479 F.3d at 646. Her superior court 9 petition was denied on July 29, 2011. (Dkt. No. 9-8, Lodgment No. 8.) She then waited 10 922 days, until February 4, 2014, before filing her appellate habeas petition with the 11 California Court of Appeal. (Dkt. No. 9-9, Lodgment No. 9.) Respondent argues that 12 Petitioner is not entitled to gap tolling for this period of time. 13 Statutory tolling applies to “intervals between a lower court decision and a filing of 14 a new petition in a higher court.” Carey, 536 U.S. at 223. A petitioner is thus entitled to 15 statutory tolling, “not only for the time that his petitions were actually under 16 consideration, but also for the intervals between filings, while he worked his way up the 17 ladder,” Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citing Carey, 536 U.S. at 18 223), so long as those filings are timely, Carey, 536 U.S. at 225-26. 19 In California, a petition for collateral review is timely filed within a “reasonable” 20 amount of time; this contrasts with States that specify a time limit, usually thirty or forty- 21 five days. Id. at 222–23. Petitioner waited 922 days after her superior court habeas 22 petition was denied to file a petition with the appellate court. Because this gap is not 23 explained, interval tolling does not apply to the period between the denial of Petitioner’s 24 superior court petition and her constructive filing of the next petition with the California 25 26 27 28 8 15cv2023 GPC (RBB) 1 Court of Appeal. The petition to the higher court was not filed within a “reasonable 2 time,” presumptively thirty to sixty days. See Evans v. Chavis, 546 U.S. 189 at 192-93 3 (2006). “[I]f the successive petition was not timely filed, the period between petitions is 4 not tolled.” Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010). Thus, the statute of 5 limitations is not statutorily tolled for the 922 days between the superior court’s order 6 denying Petitioner’s first state habeas petition and the habeas petition she filed with the 7 California Court of Appeal. This delay was unreasonable and the time must be counted 8 toward the limitations period. See Livermore v. Sandor, 487 F. App’x 342, 343-44 (9th 9 Cir. 2012) (concluding that delay of seventy-six days between state habeas petitions was 10 unreasonable); Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (finding delays 11 of eighty-one and ninety-one days were unreasonable). 12 The California Court of Appeal denied Petitioner’s habeas petition on February 25, 13 2014. (Dkt. No. 9-10, Lodgment No. 10.) She then filed a petition for writ of habeas 14 corpus with the Supreme Court of California on June 25, 2014, 121 days later. (Dkt. No. 15 9-11, Lodgment No. 11.) Like her petition with the court of appeal, this petition was not 16 filed within a “reasonable time.” See Evans, 546 U.S. at 192-93. As a result, the 17 limitations period is not statutorily tolled for the 121-day interval and is also counted 18 toward the limitations period. See Livermore, 487 F. App’x at 343-44; Velasquez, 639 19 F.3d at 968. 20 The petition with the California Supreme Court was denied on September 10, 21 2014. (Dkt. No. 9-12, Lodgment No. 12.) “The statute of limitations period is . . . not 22 tolled after state post-conviction proceedings are final and before federal habeas 23 proceedings are initiated.” Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (citing 28 24 U.S.C. § 2244(d)(2)). A decision of the California Supreme Court becomes final upon 25 26 27 28 9 15cv2023 GPC (RBB) 1 filing. Burton v. Cate, No. 10–1797–WQH(WVG), 2011 WL 4529664, at *4 n.3 (S.D. 2 Cal. June 17, 2011) (citations omitted); Cal. Rules of Court, Rule 8.532(b)(2)(C). Thus, 3 the time period after the denial of the petition by the California Supreme Court and 4 before the filing of her federal habeas petition is not statutorily tolled. Petitioner 5 constructively filed her federal habeas petition on September 5, 2015, or 361 days after 6 the California Supreme Court denied her petition. This period must be counted against 7 the one-year limitation period. 8 The AEDPA statute of limitations period was running in this case for 36 days 9 before Petitioner filed her state superior court habeas petition, 922 days between the 10 superior court’s denial of Petitioner’s petition and her filing of the next petition with the 11 California Court of Appeal, 121 days between the court of appeal’s denial of her petition 12 and her filing a petition with the California Supreme Court, and 361 days between the 13 date the California Supreme Court denied her petition and the date Petitioner 14 constructively filed her federal habeas petition. The four periods when the limitations 15 period was not tolled total 1440 days, which exceeds AEDPA’s one-year statute of 16 limitations. 28 U.S.C. § 2244(d)(1)(A). Accordingly, Petitioner is not entitled to 17 statutory tolling. 18 B. Equitable Tolling 19 Equitable tolling of the statute of limitations is appropriate when the petitioner can 20 show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 21 circumstance stood in his way.’” Holland v. Florida, 560 U.S. 631, 632 (2010) (quoting 22 Pace, 544 U.S. at 418); see also Lawrence v. Florida, 549 U.S. 327, 335 (2007) (same). 23 A petitioner is entitled to equitable tolling of AEDPA’s one-year statute of limitations 24 where “‘extraordinary circumstances beyond a prisoner’s control made it impossible’” to 25 26 27 28 10 15cv2023 GPC (RBB) 1 file a timely petition. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting 2 Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). “‘[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very 3 4 high, lest the exceptions swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th 5 Cir. 2002) (alteration in original) (quoting United States v. Marcello, 212 F.3d 1005, 6 1010 (7th Cir. 2000)). The failure to file a timely petition must be the result of external 7 forces, not the result of the petitioner’s lack of diligence. Miles v. Prunty, 187 F.3d 1104, 8 1107 (9th Cir. 1999). “Determining whether equitable tolling is warranted is a ‘fact- 9 specific inquiry.’” Spitsyn, 345 F.3d at 799 (quoting Frye v. Hickman, 273 F.3d 1144, 10 1146 (9th Cir. 2001)). 11 Respondent argues that equitable tolling is not warranted in this case because 12 “Jones has not alleged any grounds she believes entitles her to equitable tolling, and 13 nothing in the record suggests Petitioner’s failure to timely file her Petition was due to an 14 extraordinary circumstance beyond her control.” (Dkt. No. 8 at 8-9.) Petitioner has not 15 opposed Respondent’s Motion to Dismiss and has not alleged any facts in her Petition 16 that would explain her delay in bringing this Petition. Petitioner has failed to meet her 17 burden of establishing that “extraordinary circumstances” were the proximate cause of 18 her untimeliness. See Spitsyn, 345 F.3d at 799. As a result, the Court concludes that 19 Petitioner is not entitled to equitable tolling of the statute of limitations. Accordingly, the 20 Petition is untimely and must be dismissed. 21 //// 22 //// 23 //// 24 //// 25 26 27 28 11 15cv2023 GPC (RBB) 1 V. CONCLUSION 2 For the reasons set forth above, the Court GRANTS Respondent’s Motion to 3 Dismiss and DISMISSES the Petition with prejudice. The Clerk of Court shall close the 4 case. 5 6 IT IS SO ORDERED. Dated: May 4, 2016 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 15cv2023 GPC (RBB)

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