Jateen Bhatt v. Superior Court of the State of California County of Los Angeles

Filing 3


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1 2 FILED - SOUTHERN DIVISION CLERK, U.S. DISTRICT COURT [FEB~~ 3 4 5 CENT L DISTRICT OF CALIFOiiNIA BY . DEPUTY 6 7 8 UNITED STATES DISTRICT COURT. 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 Case No. CV 13-00881 SJO (AN) JATEEN BHATT, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, . ORDER TO SHOW CAUSE RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AS TIME-BARRED Respondent. 18 !.BACKGROUND 19 20 Before the Court is a petition for writ of habeas corpus ("Petition") brought by 21 J ateen Bhatt ("Petitioner"), a state prisoner proceeding prose. The Petition is brought 22 pursuant to 28 U.S.C. § 2254 and raises three claims directed at a November 19, 2009 23 conviction in the California Superior Court for Los Angeles County. Petitioner was 24 convicted of grand theft by embezzlement and forgery, received a sentence 25 enhancement based on the dollar amount lost, and was sentenced to four years in state 26 prison (case no. BA350834). 27 28 For the reasons set forth below, Petitioner is ordered to show cause why his Petition should not be dismissed with prejudice because it is time-barred. II. DISCUSSION 1 2 A. Standard of Review 3 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 4 Courts ("Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to "promptly 5 examine" a habeas petition and "[i]f it plainly appears from the petition and any 6 attached exhibits that the petitioner is not entitled to relief in the district court, the 7 judge must dismiss the petition and direct the clerk to notify the petitioner." Local 8 Rule 72-3.2 of this Court also provides "[t]he Magistrate Judge promptly shall 9 examine a petition for writ of habeas corpus, and if it plainly appears from the face of 10 the petition and any exhibits annexed to it that the petitioner is not entitled to relief, 11 the Magistrate Judge may prepare a proposed order for summary dismissal and submit 12 it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an 13 untimely habeas petition may be dismissed sua sponte, however, the district court 14 must give the petitioner adequate notice and an opportunity to respond before doing 15 so.Dayv. McDonough, 547U.S.198,209-10, 126 S. Ct.1675 (2006);Herbstv. Cook, 16 260 F.3d 1039, 1043 (9th Cir. 2001). 17 B. Statute of Limitations 18 The Petition is governed by the Antiterrorism and Effective Death Penalty Act 19 of 1996 ("AEDPA"), which establishes a one-year statute of limitations for state 20 prisoners to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(l); see also 21 Lindh v. Murphy, 521 U.S. 320, 327-37, 117 S. Ct. 2059 (1997). In most cases, the 22 limitations period is triggered by "the date on which the judgment became final by 23 conclusion of direct review or the expiration ofthe time for seeking such review." 28 24 U.S.C. § 2244(d)(l)(A). 25 Ill 26 Ill 27 Ill 28 Ill Page2 1 The face of the Petition and relevant state court records11 establish the following 2 relevant facts. Petitioner was convicted of the above offenses on November 19, 2009, 3 and sentenced on December 17, 2009. On July 19, 2010, the California Court of 4 Appeal affirmed the judgment (case no. B221302). The California Supreme Court then 5 denied review of the court of appeal's decision on October 13, 2010 (case no. 6 S 185858). Petitioner did not file a petition for certiorari with the United States 7 Supreme Court. (Pet. at 2-4; state court records.) 8 Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment 9 became final.on January 11, 2011, the ninetieth day after the state high court denied 10 his petition for review and the last day for him to file a petition for certiorari with the 11 Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The statute of 12 limitations then started to run the next day, on January 12, 2011, and ended a year later 13 on January 12,2012. 28 U.S.C. § 2244(d)(1)(A); see also Patterson v. Stewart, 251 14 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day 15 after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Petitioner did not 16 constructively file his pending Petition until January 31, 2013 -- 385 days after the 17 expiration of the limitations period.Y Accordingly, absent some basis for tolling or an 18 19 20 21 22 23 24 25 26 27 28 The Court takes judicial notice of records in the state appellate courts that relate to this action, which are available on the Internet at http://appellatecases.courtinfo.ca.gov ("state court records"). See Smith v. Duncan, 297 F.3d 809,815 (9th Cir. 2002) (federal courts may take judicial notice ofrelated state court documents), overruled on other grounds as recognized in Cross v. Sisto, 676 F.3d 1172 (9th Cir. 2012). lt Pursuant to the "mailbox rule," a prose prisoner's federal habeas petition is deemed to be filed on the date the prisoner delivers the petition to prison authorities for mailing to the clerk. Houston v. Lack, 487 U.S. 266, 270-71, 108 S. Ct. 2379 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); see also Habeas Rule 3(d). Absent evidence to the contrary, the Court finds Petitioner constructively filed the Petition by delivering it to the prison mail system on January 31, 2013, the (continued ... ) Y Page 3 1 alternative start date to the limitations period under 28 U.S.C. § 2244(d)(l ), the 2 pending Petition is time-barred. 3 C. Statutory Tolling 4 AEDPA includes a statutory tolling provision that suspends the limitations 5 period for the time during which a "properly-filed" application for post-conviction or 6 other collateral review is "pending" in state court. 28 U.S. C. § 2244(d)(2); Waldrip v. 7 Hall, 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey, 425 F.3d 1145, 1148 (9th 8 Cir. 2005). An application is "pending" until it has achieved final resolution through 9 the state's post-convictionprocedures. Carey v. Saffold, 536 U.S. 214,220, 122 S. Ct. 10 2134 (2002). 11 The Petition and relevant state court records establish Petitioner filed three state 12 habeas petitions, one in the superior court (case no. BA350834), one in the court of 13 appeal (case nos. B235108), and one in the California Supreme Court (case no. 14 S206000). Petitioner states that he filed his first petition in the superior court on April 15 4, 20 11.'J/ (Pet. at 4.) That petition was denied on May 5, 2011. (Pet. at 4; attach. A.) I 16 He filed his next petition in the state court of appeal on August 12, 2011, and that 17 petition was denied on January 10, 2012. (Pet. at 5; attach. B; state court records.) 18 Given tolling for the period from April4, 2011, until January 10, 2012 (281 days), 19 AEDPA's limitations deadline was extended from January 12 to October 19, 2012. 20 21 Y ( ... continued) 22 postmark date reflected on the envelope containing the Petition. 23 24 The mailbox rule also applies to pro se state habeas petitions. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). However, based on the Court's statutory tolling analysis below, the Petition is untimely by 68 days. In light ofthe fact the mailbox rule normally affords prisoners no more than two or three extra days of tolling, it does not appear an earlier constructive filing date would affect the result. But, should Petitioner disagree, his response to this Order must include properly authenticated exhibits indicating the date he delivered his superior court habeas petition to prison authorities for mailing. 25 26 27 28 'J/ Page4 1 Petitioner's third state habeas petition was not filed in the California Supreme 2 Court until October 15, 2012, 279 days after his second petition was denied. (State 3 court records.) As a result, although "intervals between a lower court decision and a 4 filing of a new petition in a higher court," when reasonable, fall "within the scope of 5 the statutory word 'pending,"' thus tolling the limitations period, Saffold, 536 U.S. at 6 221, 223; Evans v. Chavis, 546 U.S. 189, 192, 126 S. Ct. 846 (2006), in this case the 7 279-day interval was "substantially longer than the '30 to 60 days' that 'most States' 8 allow for filing petitions, and [Petitioner has] offered no justification for the delay[] 9 as required under California law." Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 10 2010) (holding that intervals of 115 and 101 days were unreasonable and did not 11 qualify for statutory tolling) (citations omitted); see also Banjo v. Ayers, 614 F.3d 964, 12 970 (9th Cir. 2010) (holding that a 146-day interval was unreasonable). As a result, 13 Petitioner is not entitled to statutory tolling for the interval between the denial of his 14 second state habeas petition in the court of appeal and the filing of his third state 15 habeas petition in the California Supreme Court. 16 Petitioner's third petition was denied on November 20, 2012. (Pet. at 6; attach. 17 C; state court records.) Petitioner is entitled to an additional 36 days of statutory 18 tolling for the time that petition was pending. See CAL. CT. R. 8.532(b)(2)(C); 19 Corjasso v. Ayers, 278 F.3d 874, 880 n.l (9th Cir. 2002) (orders of the California 20 Supreme Court denying habeas petitions are final upon filing). The limitations 21 deadline was again extended from October 19, 2012, to November 24, 2012. The 22 pending Petition, constructively filed on January 31, 2013, is still untimely by 68 days. 23 Petitioner purports to have filed at least one additional petition for review in the 24 California Supreme Court (Pet. at 6, 15), but he provides no case number, has not 25 attached a copy of a relevant petition or denial order, and his state court records do not 26 indicate any such petition being filed. Consequently, absent evidence to the contrary, 27 the Court finds Petitioner did not file any additional petitions for review. 28 /// Page 5 1 The foregoing establishes that despite receiving the 317 days of statutory tolling 2 to which he is entitled, Petitioner's pending Petition is still untimely. 3 D. Alternative Start of the Statute of Limitations State-Created Impediment 4 1. 5 In rare instances, AEDPA's one-year limitations period can run from "the date 6 on which the impediment to filing an application created by State action in violation 7 of the Constitution or laws of the United States is removed, if the applicant was 8 prevented from filing by such State action." 28 U.S.C. § 2244(d)(1)(B). Asserting that 9 the statute of limitations was delayed by a state-created impediment requires 10 establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 11 2002). The Petition does not set forth any facts for an alternate start date of the 12 limitations period under this provision. 13 2. Newly Recognized Constitutional Right 14 AEDPA provides that, if a claim is based upon a constitutional right that is 15 newly recognized and applied retroactively to habeas cases by the United States 16 Supreme Court, the one-year limitations period begins to run on the date which the 17 new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C). 18 The Petition does not set forth any facts for an alternate start date of the limitations 19 period under this provision. 20 3. Discovery of Factual Predicate 21 AEDPA also provides that, in certain cases, its one-year limitations period shall 22 run from "the date on which the factual predicate of the claim or claims presented 23 could have been discovered through the exercise of due diligence." 28 U.S.C. § 24 2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). The Petition 25 does not set forth any facts for an alternate start date of the limitations period under 26 this provision. 27 Ill 28 Ill Page6 1 E. Equitable Tolling 2 AEDPA's limitations period "is subject to equitable tolling in appropriate 3 cases." Holland v. Florida, ---U.S. ---, 130 S. Ct. 2549, 2560 (20 10). Specifically, "a 4 litigant seeking equitable tolling bears the burden of establishing two elements: (1) 5 that he has been pursuing his rights diligently, and (2) that some extraordinary 6 circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 7 1807 (2005); Lawrence v. Florida, 549 U.S. 327, 336, 127 S. Ct. 1079 (2007). 8 However, "[e]quitable tolling is justified in few cases" and "the threshold 9 necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions 10 swallow the rule." Spitsyn v. Moore, 345 FJd 796, 799 (9th Cir. 2003) (quoting 11 Miranda v. Castro, 292 FJd 1063, 1066 (9th Cir. 2002)). Additionally, although "we 12 do not require [the petitioner] to carry a burden of persuasion at this stage in order to 13 merit further investigation into the merits of his argument for [equitable] tolling," 14 Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003), "[w]here the record is amply 15 developed, and where it indicates that the [alleged extraordinary circumstance did not] 16 cause the untimely filing ofhis habeas petition, a district court is not obligated to hold 17 evidentiary hearings to further develop the factual record, notwithstanding a 18 petitioner's allegations .... " Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); 19 see also Elmore v. Brown, 378 Fed. Appx. 664, 666 (9th Cir. 2010) ("[W]here the 20 record is sufficient to permit the district court - and us on appeal - to evaluate the 21 strength of the petitioner's [equitable tolling] claim, the district court does not 22 necessarily abuse its discretion if it denies the petitioner a hearing.") (cited pursuant 23 to Ninth Circuit Rule 36-3). 24 25 The Petition does not set forth any facts for equitable tolling. ORDER 26 Based on the foregoing, the Court finds this action is untimely. Accordingly, 27 Petitioner shall have until March 19, 2013, to file a written response and show cause 28 why his Petition should not be dismissed with prejudice because it is time-barred. In Page? 1 responding to this Order, Petitioner must show by declaration and any properly 2 authenticated exhibits what, if any, factual or legal basis he has for claiming that the 3 Court's foregoing analysis is incorrect, or that AEDPA's one-year statute of 4 limitations should be tolled, or the start date extended. 5 Petitioner is warned that if a timely response to this Order is not made, 6 Petitioner will waive his right to respond and the Court will, without further 7 notice, issue an order dismissing the Petition, with prejudice, as time-barred. 8 Further, if Petitioner determines the Court's analysis is correct and the 9 Petition is time-barred, he should consider filing a Request For Voluntary 10 Dismissal of this action pursuant to Fed. R. Civ. P. 4l(a)(l) in lieu of a response. 11 12 IT IS SO ORDERED. 13 14 15 DATED: February 20, 2013 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 8

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