Joshua Anthony Blount v. Martin Biter

Filing 3

ORDER TO SHOW CAUSE by Magistrate Judge Arthur Nakazato, RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AS TIME-BARRED: (See document for details.) Response to Order to Show Cause due by 7/5/2012. Petitioner is warned that if a timely response to this Order is not made, Petitioner will waive his right to respond and the Court will, without further notice, issue an order dismissing the Petition, with prejudice, as time-barred. (rla)

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FILED - SOUTHERN DIVISION
CLERK, U.S. DISTRICT COURT

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JUN I 9 2012

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CENT AL DISTRICT OF CALIFORNIA
BY$
DEPUTY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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12 OSHUA ANTHONY BLOUNT,

Case No. SACV 12-00865 VBF (AN)

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ORDER TO SHOW CAUSE RE
DISMISSAL OF PETITION FOR
WRIT OF HABEAS CORPUS BY A
PERSON IN STATE CUSTODY AS
TIME-BARRED

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Petitioner,
v.
ARTIN BITER, Warden, Kern Valley
tate Prison,
Respondent.

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I. BACKGROUND
Before the Court is a petition for writ of habeas corpus ("Petition") brought by

20 oshua Anthony Blount ("Petitioner"), a state prisoner represented by retained counsel.
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he Petition is brought pursuant to 28 U.S.C. § 2254 and raises three claims directed

22 t Petitioner's June 4, 2008 conviction in the California Superior Court for Orange
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ounty (case no. 06HF1927) of one count of first degree murder, four counts of

24 ttempted murder, and findings that he committed the murder by drive-by shooting and
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ersonally discharged a firearm causing death and great bodily injury. He was sentenced

26 o a term oflife in state prison. For the reasons set forth below, Petitioner is ordered to
27 how cause why his Petition should not be dismissed with prejudice because it is time28

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II. DISCUSSION

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Standard of Review

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Habeas Rule 4 of the Rules Governing Section 2254 Cases in the United States

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istrict Courts ("Habeas Rules"), 28 U.S.C. foiL§ 2254, requires a judge to "promptly

5 xamine" a habeas petition and "[i]f it plainly appears from the petition and any
6 ttached exhibits that the petitioner is not entitled to relief in the district court, the judge
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ust dismiss the petition and direct the clerk to notify the petitioner." Local Rule 72-3.2

8 fthis Court also provides "[t]he Magistrate Judge promptly shall examine a petition
9 or writ ofhabeas corpus, and if it plainly appears from the face of the petition and any
10 xhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge
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ay prepare a proposed order for summary dismissal and submit it and a proposed

12 udgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an untimely habeas
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etition may be dismissed sua sponte, however, the district court must give the

14 etitioner adequate notice and an opportunity to respond before doing so. Day v.
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cDonough, 547 U.S. 198,209-10, 126 S. Ct. 1675 (2006); Herbst v. Cook, 260 F.3d

16 039, 1043 (9th Cir. 2001); see also Wood v. Milyard, ---U.S.---, 132 S. Ct. 1826,---17 2012) (reaffirming Day's holding that district courts are permitted to consider, sua
18 :ponte, the timeliness of a state prisoner's habeas petition, and itselfholding that "courts
19 f appeals, like district courts, have the authority - though not the obligation - to raise
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forfeited timeliness defense on their own initiative.").

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Statute of Limitations

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The Petition is governed by the Antiterrorism and Effective Death Penalty Act

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f 1996 ("AEDPA"), which establishes a one-year statute of limitations for state

24 risoners to file a habeas petition in federal court. 28 U.S.C. § 2244( d)(l ); see Lindh v.
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urphy, 521 U.S. 320, 327-37, 117 S. Ct. 2059 (1997). In most cases, the limitations

26 eriod begins to run from "the date on which the judgment became final by conclusion
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f direct review or the expiration of the time for seeking such review." 28 U.S.C. §

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244(d)(l)(A).
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The face of the Petition and relevant state court records1' establish the following

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2 elevant facts. Petitioner was convicted of the above offenses on June 4, 2008, and was
3 entenced on August 15,2008. On May 12,2010, the California Court of Appeal (case
4 o. G040851) affirmed the judgment of conviction. On September 1, 2010, the
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alifornia Supreme Court (case no. S183741) then denied review of the court of

6 ppeal's decision. (Pet. at 2-3, Exs. A&B; state court records.) Petitioner also filed a
7 etition for certiorari with the United States Supreme Court (case no. 10-771 0), which
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as denied on February 22, 2011. (Pet. at 5, Ex. C.)
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment

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10 ecame final on February 22, 2011, the day the United States Supreme Court denied his
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etition for certiorari. See Bowen v. Roe, 188 F .3d 1157, 1159 (9th Cir. 1999) ("direct

12 eview" under§ 2244( d)(l )(A) includes a petition for a writ of certiorari in the United
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tates Supreme Court). The statute of limitations then started to run the next day, on

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ebruary 23, 2011, and ended a year later on February 22, 2012. 28 U.S.C. §

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244(d)(l)(A); see also Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001)

16 the limitations period begins to run on the day after the triggering event pursuant to
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ed. R. Civ. P. 6(a)). Petitioner's retained counsel did not file his pending Petition until

18 une 1, 2012 -- 100 days after the expiration of the limitations period. Accordingly,
19 bsent some basis for tolling or an alternative start date to the limitations period under
20 8 U.S.C. § 2244(d)(1), the pending Petition is time-barred.
21 II
22 II
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The Court takes judicial notice of Petitioner's records in the Orange County
uperior Court, which are available on the Internet at http:llwww.occourts.org, and in
he state appellate courts, which are available on the Internet at
ttp:llappellatecases.courtinfo.ca.gov ("state court records"). See Smith v. Duncan, 297
.3d 809, 815 (9th Cir. 2002) (federal habeas courtsmaytakejudicial notice of relevant
tate court records), overruled on other grounds as recognized in Cross v. Sisto, 676
.3d 1172 (9th Cir. 2012).
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Statutory Tolling

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AEDPA includes a statutory tolling provision that suspends the limitations period

3 or the time during which a "properly-filed" application for post-conviction or other
4 ollateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall,
5 48 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir.
6 005). An application is "pending" until it has achieved final resolution through the
7 tate's post-conviction procedures. Careyv. Saffold, 536 U.S. 214,220, 122 S. Ct. 2134
8 2002). The face of the Petition, exhibits, and relevant state court records establish
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etitioner's retained counsel filed one state habeas petition, in the California Supreme

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ourt (case no. S200245). His counsel filed that petition on February 21, 2012, just one

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ay before the AEDPA limitations period expired. (Pet. at 3-4, Ex. D; state court

12 ecords.) That petition was denied on May 23, 2012, with a citation to In re Dixon, 41
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al. 2d 756, 759 (1953).~1 (Pet., Ex. D-18.) Given 92 days of statutory tolling for the

14 endency ofPetitioner's state habeas petition (see CAL. CT. R. 8.532(b)(2)(C); Corjasso
15 . Ayers, 278 F.3d 874, 880 n.1 (9th Cir. 2002) (orders of the California Supreme Court
16 enying habeas petitions are final upon filing)), AEDPA's limitations deadline was
17 xtended from February 22,2012, to May 24,2012. The pending Petition, filed on June
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, 2012, is still untimely by 8 days.

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Petitioner also filed a prior federal habeas action, which has no bearing on the

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ourt's timeliness analysis.~1 By AEDPA's express terms, the limitations period is only

21 oiled during the pendency of"a properly filed application for State post-conviction or
22 ther collateral review." 28 U.S.C. § 2244(d)(2) (emphasis added). Section 2244(d)(2)
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oes not toll the limitations period while a federal habeas petition is pending. Duncan

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The court's citation to Dixon indicates it denied the petition on the basis that
etitioner's claims could have been, but were not, raised on direct appeal. See Fields
. Calderon, 125 F.3d 757, 760 (9th Cir. 1997).
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A federal court may take judicial notice of its own records in other cases.
28 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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1 . Walker, 533 U.S. 167, 181-82, 121 S. Ct. 2120 (2001). Further, the pending action
2 annot "relate back" to the prior action because that action was dismissed in its entirety
3 nd is no longer pending (see CV 11-1936 VBF (AN), [1 0]&[11 ]). Rasberry v. Garcia,
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48 F.3d 1150, 1155 (9th Cir. 2006) ("[T]he relation back doctrine does not apply

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here the previous habeas petition was dismissed because there is nothing to which the

6 ew petition could relate back.").
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Despite receiving the statutory tolling to which he is entitled, Petitioner's pending
etition is still untimely.

Alternative Start of the Statute of Limitations

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1.

State-Created Impediment

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In rare instances, AEDPA's one-year limitations period can run from "the date on

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hich the impediment to filing an application created by State action in violation of the

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onstitution or laws of the United States is removed, if the applicant was prevented

14 rom filing by such State action." 28 U.S.C. § 2244( d)(l )(B). Asserting that the statute
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f limitations was delayed by a state-created impediment requires establishing a due

16 rocess violation. Lottv. Mueller, 304 F.3d 918,925 (9th Cir. 2002). Petitioner's filings
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o not set forth any facts that show he is entitled to relief under this provision.

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2.

Newly Recognized Constitutional Right

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AEDPA provides that, if a claim is based upon a constitutional right that is newly

20 ecognized and applied retroactively to habeas cases by the United States Supreme
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ourt, the one-year limitations period begins to run on the date which the new right was

22 nitially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(l)(C). Petitioner's
23 Ilings do not set forth any facts that show he is entitled to relief under this provision.
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3.

Discovery of Factual Predicate

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AEDPA also provides that, in certain cases, its one-year limitations period shall

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n from "the date on which the factual predicate of the claim or claims presented could

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ave been discovered through the exercise of due diligence." 28 U.S.C. §

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244(d)(l)(D); Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001). Petitioner's
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1 !lings do not set forth any facts that show Petitioner is entitled to an alternate start date
2 o the limitations period based upon the late discovery of the factual predicate.
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Equitable Tolling

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AEDPA's limitations period "is subject to equitable tolling in appropriate cases."

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olland v. Florida,--- U.S.---, 130 S. Ct. 2549, 2560 (2010). However, "[e]quitable

6 oiling is justified in few cases" and "the threshold necessary to trigger equitable tolling
7 under AEDPA] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore,
8 45 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066
9 9th Cir. 2002)).
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"[A] litigant seeking equitable tolling bears the burden of establishing two

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lements: ( 1) that he has been pursuing his rights diligently, and (2) that some

12 xtraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408,418,
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25 S. Ct. 1807 (2005); Lawrence v. Florida, 549 U.S. 327, 336, 127 S. Ct. 1079

14 2007). Pace's diligence prong requires the petitioner to show he engaged in reasonably
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iligent efforts to file his § 2254 petition throughout the time the limitations period was

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nning. Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006); see also Smith v.

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cGinnis, 208 F .3d 13, 17 (2d Cir. 2000) (equitable tolling requires a showing that "the

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arty seeking equitable tolling must have acted with reasonable diligence throughout

19 he period he seeks to toll" and "extraordinary circumstances prevented him from filing
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is petition on time"). The petitioner must also demonstrate that he exercised reasonable

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iligence in attempting to file his habeas petition after the extraordinary circumstances

22 egan, otherwise the "link of causation between the extraordinary circumstances and the
23 ailure to file [is] broken." Spitsyn, 345 F.3d at 802. Pace's "extraordinary
24 ircumstances" prong requires the petitioner to "additionally show that the extraordinary
25 ircumstances were the cause of his untimeliness, and that the extraordinary
26 ircumstances made it impossible to file a petition on time." Ramirez v. Yates, 571 F.3d
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93, 997 (9th Cir. 2009) (internal quotations and citations omitted). Further, equitable

28 oiling determinations are "highly fact-dependent," Mendoza, 449 F.3d at 1068, and the
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"bears the burden of showing that equitable tolling is appropriate."
spinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005).

Additionally, although "we do not require [the petitioner] to carry a burden of

4 ersuasion at this stage in order to merit further investigation into the merits of his
5 rgument for [equitable] tolling," Laws v. Lamarque, 351 F.3d 919,924 (9th Cir. 2003),
6 '[ w ]here the record is amply developed, and where it indicates that the [alleged
7 xtraordinary circumstance did not] cause the untimely filing of his habeas petition, a
8 istrict court is not obligated to hold evidentiary hearings to further develop the factual
9 ecord, notwithstanding a petitioner's allegations ... ."Roberts v. Marshall,
10 27 F.3d 768, 773 (9th Cir. 201 0); see also Elmore v. Brown, 378 Fed. Appx. 664, 666
11 9th Cir. 201 0) (''[W]here the record is sufficient to permit the district court -- and us
12 n appeal -- to evaluate the strength of the petitioner's [equitable tolling] claim, the
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istrict court does not necessarily abuse its discretion if it denies the petitioner a

14 earing.") (cited pursuant to Ninth Circuit Rule 36-3).
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Apparently anticipating that the pending Petition would be found untimely,

16 etitioner argues he should be entitled to equitable tolling on the basis that:
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the district court dismissed the previous petition without prejudice for

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failure to exhaust remedies; whereupon petitioner immediately filed a

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petition for writ of habeas corpus to exhaust remedies, ... in the California

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Supreme Court. Petitioner learned today by United States mails that the

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California Supreme Court denied the petition without oral argument on

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May 23. Receipt of that denial was likely [delayed] due to the Memorial

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Day weekend and the lack of mail service between May 25 and [May 30]."

24 Memorandum of Points and Authorities (attached to the Petition) at 3-4.) Petitioner
25 lso attached to the Petition the declaration of his counsel's legal assistant stating that
26 he was assigned to handle office mail pertaining to Petitioner's case, that she was out
27 f the office from May 25 to 29, and that upon her return to work on May 30, she
28 'processed all the mail on my desk," which included the letter from the California
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1 upreme Court notifying Petitioner his habeas petition had been denied. She states she
2 hen worked with two attorneys "all day" on May 30 to complete the pending Petition.
3 Pet., Ex. E.)
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Petitioner is not entitled to equitable tolling because he fails to satisfy both of

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ace's requirements. Pace, 544 U.S. at 418. First, he has not been pursuing his rights

6 iligently throughout the time the limitations period was running. Mendoza, 449 F .3d
7 t 1070; Smith, 208 F.3d at 17. His entire argument places undue emphasis on actions
8 aken on a single day long after the original limitations period expired, but ignores the
9 act that he did nothing for approximately the first ten months the limitations period was
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nning. See Mendoza, 449 F.3d at 1070 (a petitioner seeking equitable tolling must

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emonstrate he made diligent efforts "during the running of the AEDPA time limitation.

12 .. "). Moreover, all he did at that point was file a mixed federal habeas petition that was
13 ubject to dismissal. Notably, Petitioner was then given an opportunity to avoid his
14 urrent predicament by deleting the unexhausted claim and proceeding with an amended
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etition on his exhausted claims. (See CV 11-1936 VBF (AN), [4], [8].) Petitioner chose

16 nstead to object to the magistrate judge's orders (See id. at [9]) and then, while awaiting
17 his Court's decision,~1 he made a belated attempt to exhaust by filing a state habeas
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etition one day before AEDPA's statute of limitations expired. Consequently, the

19 ending Petition is untimely, not despite Petitioner's diligence, but instead due strictly
20 o his lack of diligence because he left himself insufficient time for routine occurrences
21 uch as the delivery of mail. !d.

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In dismissing the prior federal habeas action, the Court was not required to
24 ndergo "the potentially burdensome, time-consuming, and fact-intensive task of
aking a case-specific investigation and calculation of whether the AEDPA limitations
25 eriod has already run or will have run by the time the petitioner returns to federal
26 ourt," especially in this case, since petitioner is represented by retained counsel, and
'[e]xplaining the details of federal habeas procedure and calculating statutes of
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imitations are tasks normally and properly performed by trained counsel as a matter of
28 ourse." Pliler v. Ford, 542 U.S. 225,231-32, 124 S. Ct. 2441 (2004).
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Second, Petitioner also fails to satisfy Pace's second prong, that some

2 xtraordinary circumstance stood in his way. As already alluded to, routine occurrences
3 uch as the delivery of mail do not constitute extraordinary circumstances that make
4 imely filing impossible. Ramirez, 571 F.3d at 997; Allen v. Lewis, 255 F.3d 798, 800
5 9th Cir. 2001) (to establish that an extraordinary circumstance made it impossible to
6 Ilea petition on time, "at the very least, the prisoner must show that the 'extraordinary
7 ircumstances' were the but-for and proximate cause of his untimeliness.").
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dditionally, while the Court finds minor mail delays caused by holidays are also

9 outine, unextraordinary occurrences that do not warrant equitable tolling, Petitioner has
10 evertheless failed to establish there was any holiday-related delay in his mail delivery.
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pecifically, he has not indicated, nor has he attached any exhibits showing by time

12 tamp or otherwise, what date the California Supreme Court's letter notifying him of the
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ay 23 denial was actually mailed and delivered to his counsel's law office by the

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nited States Postal Service. Based on the declaration proffered by his counsel's

15 ssistant (Pet., Ex. E) the letter could have arrived as early as Friday, May 25, because
16 o mail relating to Petitioner's case was checked or opened on May 25 or 29 .'J/ See
17 andvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) ("While the
18 nefficiencies of the United States Postal Service may be a circumstance beyond [the
19 risoner' s] control," where the problem is avoidable by the exercise of diligence "[t]here
20 s not, ... ground for equitable tolling .... "). Petitioner has not pointed to any
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xtraordinary circumstance that prevented a timely filing. Pace, 544 U.S. at 418.

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Petitioner's filings do not establish he is entitled to equitable tolling.§/

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Counsel's failure to check the mail for two straight business days further
stablishes a lack of diligence.
'J.I

To the extent Petitioner may contend that he should be entitled to equitable
oiling because his petition was not timely filed due to the fault of his retained counsel,
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is contention lacks merit and does not entitle him to equitable tolling. See Frye v.
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(continued ... )
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§.t

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ORDER

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Based on the foregoing, the Court finds this action is untimely. Accordingly,

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etitioner shall have until July 5, 2012, to file a written response and show cause why

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is Petition should not be dismissed with prejudice because it is time-barred. In

5 esponding to this Order, Petitioner must show by declaration and any properly
6 uthenticated exhibits what, if any, factual or legal basis he has for claiming that the
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ourt' s foregoing analysis is incorrect, or that AEDPA's one-year statute oflimitations

8 hould be tolled, or the start date extended.

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Petitioner is warned that if a timely response to this Order is not made,

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etitioner will waive his right to respond and the Court will, without further

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otice, issue an order dismissing the Petition, with prejudice, as time-barred.

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Further, if Petitioner determines the Court's above analysis is correct and

13 he Petition is clearly time-barred, he should consider filing a Request For
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oluntary Dismissal of this action pursuant to Fed. R. Civ. P. 4l(a)(l) in lieu of a

15 esponse to this Order.
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IT IS SO ORDERED.

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ATED: June 19, 2012

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TEJUDGE

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( ••• continued)

ickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (concluding the miscalculation of the
imitations period by federal habeas counsel does not constitute an extraordinary
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ircumstance sufficient to warrant equitable tolling); Miranda v. Castro, 292 F.3d
28 1063, 1067-68 (9th Cir. 2002) (same, citing Frye).

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