Anthony E. Mack v. David Baughman

Filing 29

ORDER by Judge Dean D. Pregerson DISMISSING PETITION. Petitioner is not entitled to relief because the Petition is untimely. IT IS THEREFORE ORDERED that the Petition is DISMISSED with prejudice. (rh)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ANTHONY E. MACK, ) NO. CV 16-6912-DDP (KS) ) Petitioner, ) v. ) ORDER: DISMISSING PETITION ) WITH PREJUDICE ) DAVID BAUGHMAN, Warden, ) Respondent. ) ___________________________________ ) 17 18 19 20 21 22 23 24 25 26 27 INTRODUCTION On June 13, 2016, Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) in the Eastern District of California (“Eastern District”). (Dkt. No. 1.) On September 13, 2016, the Eastern District transferred the Petition to this Court. (Dkt. No. 10.) On October 5, 2016, the Court ordered Petitioner to file a First Amended Petition in which he identifies the date, location, and nature of his conviction and the length of his sentence and provides a short plain statement of each ground for habeas relief. (Dkt. No. 13.) On January 9, 2017, after several extensions of time, Petitioner filed the First Amended Petition (the “FAP”). (Dkt. No. 22.) On February 1, 2017, the Court ordered Petitioner to show cause why the action should not 28 1 1 be dismissed as untimely. (Dkt. No. 26.) On February 27, 2017, Petitioner filed his 2 Response to the Court’s February 1, 2017 Order to Show Cause (“OSC Response”). (Dkt. 3 No. 27.) 4 5 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 6 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition 7 without ordering a responsive pleading where “it plainly appears from the petition and any 8 attached exhibits that the petitioner is not entitled to relief.” Habeas Rule 4. For the reasons 9 set forth below, the action must be, and is, DISMISSED as untimely, pursuant to 28 U.S.C. § 2244(d) and Rule 4. 10 11 BACKGROUND 12 13 According to the FAP, Petitioner challenges his July 5, 1984, March 8, 1985, and 14 October 21, 1994 convictions as well as a February 13, 2002 sentencing decision. (FAP at 15 2.) Petitioner states that he is serving a sentence of “eight years, plus two life sentences.” 16 (Id.) 17 18 Petitioner states that he appealed his October 21, 1994 conviction in case number 19 C079359, which correlates with the case number for a habeas petition Petitioner filed in the 20 California Court of Appeal on June 1, 2015. (Compare FAP at 2 with Docket (Register of 21 Actions), In re Anthony Edward Mack on Habeas Corpus, No. C079359 (Jun. 4, 2015), 22 available at 1 23 Petitioner also states that, in April 2016, he filed a Petition for Review in the California Supreme Court. (FAP at 3.) However, 24 this Court’s independent review of the California state courts’ website indicates that 25 26 1 27 28 Federal courts may take judicial notice of relevant state court records in federal habeas proceedings. See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2001), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Williams v. Jacquez, No. CV 09-2703 DSF (DTB). 2010 WL 1329585, at *2 (C.D. Cal. Feb. 22, 2010) (taking judicial notice in § 2254 habeas case of California state court appellate records). 2 1 Petitioner did not initiate any case in the California Supreme Court following the California 2 Court of Appeal’s denial of his June 2015 habeas petition. Neither the FAP nor the OSC 3 Response identifies any other relevant state proceedings on either direct or collateral review. 4 On June 13, 2016, Petitioner filed the instant Petition. 5 6 Petitioner characterizes his claims for federal habeas relief as follows: (1) a Fourth 7 Amendment claim based on Petitioner’s continued incarceration and a California 8 Department of Corrections and Rehabilitation Legal Processing Unit “shadow policy”; (2) a 9 Double Jeopardy claim; (3) a claim under the Fifth and Sixth Amendments concerning 10 Petitioner’s right to be present with court appointed counsel at any court hearings concerning 11 his sentence; (4) an Equal Protection and Due Process claim concerning “invidious race- 12 based discriminatory practices” and “arbitrary unlawful ministerial practices;” and (5) an 13 Eighth Amendment cruel and unusual punishment claim. (FAP at 5-6.) 14 DISCUSSION 15 16 17 I. The Statute Of Limitations 18 19 This action is governed by the Anti-Terrorism and Effective Death Penalty Act of 20 1996 (“AEDPA”), which establishes a one-year statute of limitations for state prisoners to 21 file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The “statutory purpose” of the one- 22 year limitations period is to “encourag[e] prompt filings in federal court in order to protect 23 the federal system from being forced to hear stale claims.” Carey v. Saffold, 536 U.S. 214, 24 226 (2002). Where, as here, the petitioner’s most recent conviction was finalized before 25 AEDPA’s enactment, the one-year statute of limitations began to run on April 24, 1996, the 26 date AEDPA was signed into law. Id. at 217; Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 27 1010 (9th Cir. 2009). 28 3 1 The one-year limitations period set forth in 28 U.S.C. § 2244(d)(1) is subject to a 2 statutory tolling provision, which suspends it for the time during which a “properly-filed” 3 application for post-conviction or other collateral review is “pending” in state court. 28 4 U.S.C. § 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). 5 Additionally, in certain “extraordinary circumstances” beyond a prisoner’s control, equitable 6 tolling may be available to toll the one-year limitations period. See Holland v. Florida, 560 7 U.S. 631, 645, 649 (2010). 8 9 II. The Commencement Date 10 The Section 2244(d)(1) limitations period is triggered and begins to run from the latest 11 12 of: 13 14 (A) the date on which the underlying judgment became final through either the 15 conclusion of direct review or the expiration of the time for seeking such 16 review; 17 (B) the date on which any impediment to the filing of a federal petition created 18 by unconstitutional state action is removed; 19 (C) the date on which a newly recognized and retroactively applicable 20 constitutional right was first recognized by the United States Supreme Court; or 21 (D) the date on which the factual predicate underlying a claim could have been 22 discovered through the exercise of due diligence. 23 24 28 U.S.C. § 2244(d)(1)(A)-(D). 25 26 However, as stated above, if the petitioner’s conviction became final before AEDPA’s 27 enactment date, a “grace period” applies and the statute of limitations did not begin to run 28 until April 24, 1996. Wood v. Milyard, 556 U.S. 463, ___, 132 S. Ct. 1826, 1831 (2012); 4 1 Patterson, 251 F.3d at 1246. Petitioner identifies October 21, 1994 as the date of his most 2 recent conviction (FAP at 2), a date that predates AEDPA’s enactment by several years. In 3 the OSC Response, Petitioner suggests that he is entitled to an alternative commencement 4 date because “the underlying events were not discovered until decades later.” 5 Response at 3.) However, Petitioner does not identify a date on which he learned of “the 6 factual predicate underlying a claim.” Petitioner’s vague and conclusory invocation of 28 7 U.S.C. § 2244(d)(1)(D) does not satisfy his burden of proving that he is entitled to an 8 alternative commencement date for his claims challenging the constitutionality of his 9 conviction. See Oglesby v. Soto, No. CV 14-8836-ODW (JEM), 2015 WL 4399488, at *5 10 (Jul. 17, 2015) (“vague and conclusory allegations . . . are insufficient to delay 11 commencement of the statute of limitations”); Towery v. Harrington, No. CV 10-5577 JHN 12 (JC), 2011 WL 7025296, at *6 (Sep. 1, 2011) (same). Thus, the statute of limitations for 13 Petitioner’s challenges to his conviction commenced running on April 24, 1996 and, absent 14 tolling, elapsed one year later on April 24, 1997. See Wood, 132 S. Ct. at 1831. Petitioner 15 filed his federal petition on June 13, 2016, nearly two decades after April 24, 1997. 16 Accordingly, absent sufficient tolling, Petitioner’s claims challenging his conviction are 17 untimely. (OSC 18 19 Petitioner also suggests that he is challenging a February 13, 2002 sentencing decision. 20 (FAP at 2.) Neither the FAP nor the Court’s independent review of the state courts’ website 21 indicates that Petitioner filed a case in the California Court of Appeal or California Supreme 22 Court within a year of the February 13, 2002 sentencing decision. 23 sentencing decision became final no later than April 14, 2002. See Mendoza v. Carey, 449 24 F.3d 1065, 1067 (9th Cir. 2006); Cal. Rules of Court, Rule 8.308(a). 25 limitations commenced running on April 15, 2002 and, absent tolling, elapsed one year later 26 on April 14, 2003. 27 sentencing decision is also untimely. Accordingly, the The statute of Thus, absent sufficient tolling, Petitioner’s challenge to the 2002 28 5 1 III. Petitioner Is Not Entitled To Statutory Tolling. 2 3 Section 2244(d)(2) suspends the limitations period not only for the time during which 4 a “properly-filed” application for post-conviction relief is “pending” in state court but also, 5 in appropriate circumstances, “during the intervals between the denial of a petition by one 6 court and the filing of a new petition at the next level, if there is not undue delay.” Biggs v. 7 Terhune, 339 F.3d 1045, 1046 (9th Cir. 2003); see also Saffold, 536 U.S. at 218-27 (holding 8 that, for purposes of California’s “original” habeas petition system, “pending” covers the 9 time between the denial of a petition in a lower court and the filing, “within a reasonable 10 time,” of a “further original state habeas petition in a higher court”). However, 11 when a petitioner waits to initiate his state habeas proceedings until after the federal statute 12 of limitations has lapsed, statutory tolling is not available. See Laws v. Lamarque, 351 F.3d 13 919, 922 (9th Cir. 2003) (“Because [the petitioner] did not file his first state petition until 14 after his eligibility for federal habeas had already lapsed, statutory tolling cannot save his 15 claim.”); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does 16 not permit the reinitiation of the limitations period that has ended before the state petition 17 was filed”). 18 19 Neither the FAP nor the OSC Response specifically identifies a single state habeas 20 petition. (See generally FAP at 2-3.) However, the Court’s independent review of the state 21 courts’ website reflects that Petitioner, or an individual with the same name, filed the 22 following habeas petitions in the California Court of Appeal and California Supreme Court 23 during the relevant time period. 24 25 26 27 28 Month Filed June 1996 Date Denied July 11, 1996 Court Second Appellate District of the California Court of Appeal 6 Citation Docket (Register of Actions), Mack, No. B102529 (Jul. 11, 1996) October 2005 October 25, 2005 January 2015 January 15, 2015 March 2015 June 2, 2015 June 2015 1 June 4, 2015 2 3 4 5 6 7 8 9 10 11 Second Appellate District of the California Court of Appeal Third Appellate District of the California Court of Appeal First Appellate District of the California Court of Appeal Third Appellate District of the California Court of Appeal Docket (Register of Actions), Mack v. The People et al., No. B186542 (Oct. 25, 2005) Docket (Register of Actions), In re Anthony Mack on Habeas Corpus, No. C078166 (Jan. 15, 2015) Docket (Register of Actions), The People v. Mack, No. A144439 (Jun. 2, 2015) 2 Docket (Register of Actions), In re Anthony Edward Mack on Habeas Corpus, No. C079359 (Jun. 4, 2015) 12 13 The Court assumes all facts in Petitioner’s favor. However, with respect to 14 Petitioner’s claims challenging his October 21, 1994 conviction, the state courts’ website 15 shows only one state habeas petition filed in either the California Court of Appeal or the 16 California Supreme Court prior to the expiration of Petitioner’s statute of limitations: Mack, 17 No. B102529 (Jul. 11, 1996). That petition, assuming it was properly filed by Petitioner, 18 was pending for just over a month. Accordingly, it cannot provide the nearly two decades 19 worth of statutory tolling necessary to render Petitioner’s claims challenging his conviction 20 timely. Therefore, absent sufficient equitable tolling, those claims are time-barred. 21 22 With respect to Petitioner’s challenge to his sentence, the state courts website reveals 23 no habeas petitions filed in either the California Court of Appeal or the California Supreme 24 Court for more than three years after the February 13, 2002 sentencing decision. See Docket 25 (Register of Actions), Mack v. The People et al., No. B186542 (Oct. 25, 2005). As stated 26 above, Petitioner cannot restart the limitations period for his sentencing claims by 27 28 2 This was not a petition for writ of habeas corpus but an appeal of a denial of a petition for writ of habeas corpus. 7 1 commencing state habeas proceedings after the limitations period has ended. See Ferguson, 2 321 F.3d at 823; see also Larsen v. Soto, 742 F.3d 1083, 1088 (9th Cir. 2013) (finding that 3 the petition was facially untimely, because the petitioner did not file his state petition until 4 after the limitations period expired). Accordingly, Petitioner has failed to establish that he is 5 entitled to statutory tolling for his sentencing claims and, absent sufficient tolling, these 6 claims are also time-barred. 7 8 IV. Petitioner Is Not Entitled To Equitable Tolling. 9 10 The one-year limitations period established by Section 2244(d)(1) may also be 11 equitably tolled in appropriate circumstances. Holland, 560 U.S. at 645-49. However, 12 application of the equitable tolling doctrine is the exception rather than the norm. See, e.g., 13 Waldron-Ramsey, 556 F.3d at 1011 (characterizing the Ninth Circuit’s “application of the 14 doctrine” as “sparing” and a “rarity”); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) 15 (“equitable tolling is unavailable in most cases”). A petitioner seeking application of the 16 doctrine bears the burden of showing that it should apply to him. Pace v. DiGuglielmo, 544 17 U.S. 408, 418 (2005). Specifically, a habeas petitioner may receive equitable tolling only if 18 he “shows ‘(1) that he has been pursuing his rights diligently, and (2) that some 19 extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 20 U.S. at 645. 21 22 Petitioner states in his OSC Response that “Acts taken to prevent legal redress which 23 is why the underlying events were not discovered until decades later and gave rise to 24 extraordinary circumstances.” 25 Petitioner’s vague and conclusory assertion of “acts taken to prevent legal redress” is 26 insufficient to establish that Petitioner is entitled to equitable tolling. See Lawless v. Evans, 27 545 F. Supp. 2d 1044, 1048 (C.D. Cal. 2008) (conclusory assertions do not satisfy the 28 petitioner’s burden to demonstrate that he is entitled to equitable tolling) (citing Roberts v. (OSC Response at 3) (errors and emphasis in original). 8 1 Cockrell, 319 F.3d 690, 695 (5th Cir. 2003); Trenkler v. United States, 268 F.3d 16, 25 (1st 2 Cir. 2001); Finn v. Thompson, 497 F. Supp. 2d 110, 114–15 (D. Mass. 2007)). Accordingly, 3 Petitioner has failed to carry his burden of showing that the Petition is entitled to equitable 4 tolling, and the Petition is time-barred. 5 CONCLUSION 6 7 8 For the foregoing reasons, it plainly appears from the Petition that Petitioner is not 9 entitled to relief because the Petition is untimely. IT IS THEREFORE ORDERED that the 10 Petition is DISMISSED with prejudice. 11 12 IT IS SO ORDERED. 13 14 DATED: April 11, 2017 _______________________________ DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 15 16 17 18 Presented by: 19 20 21 ________________________ Karen L. Stevenson United States Magistrate Judge 22 23 24 25 26 27 28 9

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