Morraza v. Clark

Filing 20

FINDINGS and RECOMMENDATIONS recommending to GRANT Respondent's Motion to DISMISS 19 Amended Petition for Writ of Habeas Corpus signed by Magistrate Judge Theresa A. Goldner on 1/20/2009. Matter referred to Judge Lawrence J. O'neill. (Objections to F&R due by 2/17/2009) (Figueroa, O)

1 2 3 4 5 6 7 VICTOR MORAZA, 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROCEDURAL HISTORY Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 23, 2007, Petitioner filed a pleading titled "Request For Equitable Tolling And To File Late Petition For Writ of Habeas Corpus For A Person In State Custody" in the Sacramento Division of this Court. (Doc. 1). The Clerk of Court apparently interpreted the request as a petition for writ of habeas corpus and opened a case based upon that filing. On June 19, 2007, the Court ordered Petitioner to file a new petition within thirty days. (Doc. 8). On July 12, 2007, Petitioner filed the instant petition, which was docketed as an "amended petition." (Doc. 9). On August 23, 2007, the case was transferred to the Fresno Division. (Doc. 10). The Court conducted a preliminary review of the petition and determined that it may be untimely, and issued an order to show cause why the petition should not be dismissed as untimely. (Doc. 15). On February 21, 2008, Petitioner filed a response to the order to show cause, in which he alleged entitlement to additional statutory tolling for state habeas petitions he had filed. (Doc. 16). However, Petitioner failed to provide any specific support of documentation establishing entitlement to such statutory tolling. Accordingly, the Court ordered Respondent to file a response. (Doc. 17). 1 ) ) Petitioner, ) ) v. ) ) ) KEN CLARK, ) ) Respondent. ) ____________________________________) 1:07-cv-01226-LJO-TAG HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 19) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN 15 DAYS

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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On August 22, 2008, Respondent filed the instant motion to dismiss. (Doc. 19). Petitioner did not file a response to the motion. DISCUSSION A. Procedural Grounds for Motion to Dismiss As mentioned, Respondent has filed a motion to dismiss the petition as being filed outside the one-year limitation period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990)(using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-603 (9th Cir. 1989)(using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the court should use Rule 4 standards to review the motion. Here, Respondent's motion to dismiss is based on a violation of § 2244(d)(1)'s one-year limitation period. Because Respondent's motion is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion pursuant to its authority under Rule 4. B. Limitation Period for Filing a Petition for Writ of Habeas Corpus On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059 (1997). Because this action was commenced in 2007, the instant petition is subject to the AEDPA limitation period. 2

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The AEDPA imposes a one-year limitation period on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads: (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 ­ (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; (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 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). In most cases, the limitation period begins running on the date that the petitioner's direct review became final. Here, the Petitioner was convicted on March 30, 2004. He appealed his conviction and the petition for review was denied by the California Supreme Court on November 16, 2005. (Doc. 19, Lodged Documents ("LD") Exh. B). Thus, direct review would have concluded on February 15, 2006, when the ninety-day period for seeking review in the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir.1998). Petitioner would then have one year from February 16, 2006, or until February 15, 2007, absent applicable tolling, in which to file his federal petition for writ of habeas corpus.1

R e s p o n d e n t's motion to dismiss contends that the one-year period commenced on November 1, 2005. (Doc. 19, p . 3). However, Respondent's conclusion stems from the mistaken notion that "[t]he California Supreme Court affirmed the j u d g m e n t on direct appeal by opinion filed August 2, 2005. Therefore the conviction became final...on the ninetieth day f o l l o w i n g issuance of the Opinion...." (Id.)(Emphasis supplied). According to Respondent's own documents submitted in s u p p o r t of the motion to dismiss, it was the Court of Appeal's opinion that was issued on August 2, 2005. (LD Exh. A). The C a l ifo r n ia Supreme Court did not issue an opinion on the merits of Petitioner's appeal; rather, it denied review. (Id., Exh.

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As mentioned, Petitioner's initial pleading in this habeas action was filed on April 23, 2007, sixty-seven days after the one-year period expired. Thus, unless Petitioner is entitled to statutory or equitable tolling, the petition is untimely and must be dismissed. C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) Under the AEDPA, the statute of limitations is tolled during the time that a properly filed application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules governing filings, including the form of applications and time limitations. Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361 (2000). An application is pending during the time that "a California petitioner `completes a full round of [state] collateral review,'" so long as there is no unreasonable delay in the intervals between a lower court decision and the filing of a petition in a higher court. Delhomme v. Ramirez, 340 F. 3d 817, 819 (9th Cir. 2003)(internal quotation marks and citations omitted); see Evans v. Chavis, 546 U.S. 189, 193-194, 126 S. Ct. 846 (2006); see Carey v. Saffold, 536 U.S. 214, 220, 222-226 , 122 S. Ct. 2134 (9th Cir. 2002); see also, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Nevertheless, there are circumstances and periods of time when statutory tolling is not allowed. For example, no statutory tolling is allowed for the period of time between finality of an appeal and the filing of an application for post-conviction or other collateral review in state court, because no state court application is "pending " during that time. Nino, 183 F. 3d at 1006-1007. Similarly, no statutory toling is allowed for the period between finality of an appeal and the filing of a federal petition. Id. at 1007. In addition, the limitation period is not tolled during the time that a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-182, 121 S.Ct. 2120 (2001); see also, Fail v. Hubbard, 315 F. 3d 1059, 1060 (9th Cir. 2001). Further, a petitioner is not entitled to statutory tolling where the limitation period has already run prior to filing a state habeas petition. Ferguson v. Palmateer, 321 F. 3d 820, 823 (9th Cir. 2003)("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Jiminez

B ) . Thus, as discussed, the one-year period would commence ninety days after the California Supreme Court denied review o n November 16, 2005.

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v. White, 276 F. 3d 478, 482 (9th Cir. 2001). Finally, a petitioner is not entitled to continuous tolling when the petitioner's later petition raises unrelated claims. See Gaston v. Palmer, 447 F. 3d 1165, 1167 (9th Cir. 2006). Here, Respondent has submitted documents indicating that Petitioner, through counsel, filed a state habeas petition in the Superior Court for the County of Kings on November 21, 2005. (LD Exh. C). That petition was denied on December 1, 2005. (LD Exh. D). Thus, the petition was pending for a total of eleven days. However, the petition was denied before the one-year period even commenced on February 15, 2006. A tolling provision has no applicability where the period to be tolled has not commenced. See Hill v. Keane, 984 F.Supp. 157, 159 (E.D.N.Y. 1997), abrogated on other grounds, Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir. 1999)(state collateral action filed before commencement of limitations period does not toll the limitation period), affirmed, 531 U.S. 4. Subsequently, Petitioner filed a petition in the California Supreme Court, pro se, on July 10, 2007. (LD Exh. E).1 The California Supreme Court denied the petition on January 8, 2008. (LD Exh. F). As discussed above, a petitioner is not entitled to tolling where the limitation period has already run prior to filing a state habeas petition. Jiminez, 276 F.3d at 482; see Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999) (petitioner fails to exhaust claims raised in state habeas corpus filed after expiration of the one-year limitation period). Here, as mentioned, the limitation period expired on February 15, 2007, approximately five months before Petitioner filed his state habeas petition in the California Supreme Court. By the time Petitioner filed his second state petition, he had already filed the instant federal petition in this Court. Hence, even if the limitation period had not already expired, thus precluding statutory tolling for later-filed state petitions, the second state petition could have no legal tolling effect because his federal petition had already been filed. Accordingly, he cannot avail himself of the statutory tolling provisions of the AEDPA for the latterI n Houston v. Lack, the United States Supreme Court held that a pro se habeas petitioner's notice of appeal is d e e m e d filed on the date of its submission to prison authorities for mailing, as opposed to the date of its receipt by the court c l e r k . Houston v. Lack, 487 U.S. 166, 276, 108 S.Ct. 2379 (1988). The rule is premised on the pro se prisoner's mailing o f legal documents through the conduit of "prison authorities whom he cannot control and whose interests might be adverse to his." Miller v. Sumner, 921 F.2d 202, 203 (9th Cir. 1990); see, Houston, 487 U.S. at 271. Here, the Court will afford P e t i ti o n e r the benefit of the doubt by applying the "mailbox rule" to determine the filing date of his petition in the California S u p r e m e Court. Petitioner dated his proof of service as July 10, 2007. Thus, that would be the earliest date he could have s u b m i tte d the petition to prison authorities for filing. Accordingly, the Court will analyze this matter as though the petition w a s filed on that date.
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filed state petition either. Because Petitioner is not entitled to any statutory tolling, the petition is untimely by sixty-seven days, and unless Petitioner is entitled to equitable tolling for that period of time, the petition must be dismissed. D. Equitable Tolling The limitation period is subject to equitable tolling when "extraordinary circumstances beyond a prisoner's control make it impossible to file the petition on time." Shannon v. Newland, 410 F. 3d 1083, 1089-1090 (9th Cir. 2005)(internal quotation marks and citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). In most instances, a petitioner seeking equitable tolling has "the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807 (2005). "[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F. 3d 1062, 1066 (9th Cir. 2002)(internal quotation marks and citation omitted). As a consequence, "equitable tolling is unavailable in most cases." Miles, 187 F. 3d at 1107. Petitioner addresses equitable tolling in his original filing and his amended petition. (Docs. 1, 9). In his original filing, Petitioner alleges that he is a layman unskilled in the law, that he does not speak English well, that he was unaware of the AEDPA one-year limitation period, that he "did not intentionally miss his AEDPA deadline" and that the interests of justice support equitable tolling. (Doc. 1, pp. 1-4). Petitioner also contends that his prison was in "lock down" during some or all of the limitation period. (Id. at p. 3). In his amended petition filed July 12, 2007, Petitioner reiterates that he does not understand English well, is not an attorney, has no legal expertise, and alleges that his appellate attorney "failed to inform him of his status in the courts." (Doc. 9, p. 1). Petitioner's claims of ignorance of the law and inability to speak English fluently are insufficient to justify equitable tolling. See Raspberry v. Garcia, 448 F. 3d 1150, 1154 (9th Cir. 2006)("a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."). In Mendoza v. Carey, the Ninth Circuit concluded that 6

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"a non-English speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translations from an inmate, library personnel, or other source." Mendoza v. Carey, 449 F. 3d 1065, 1071 (9th Cir. 2006); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) (pro se prisoner's illiteracy and lack of knowledge of law unfortunate but insufficient to establish cause); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir.1991). Here, Petitioner has failed to make such a showing. Moreover, unpredictable lockdowns or the consequent law library closures do not constitute extraordinary circumstances warranting equitable tolling in this case. See United States v. Van Poyck, 980 F.Supp. 1108, 1111 (C.D. Cal.1997) (inability to secure copies of transcripts from court reporters and lockdowns at prison lasting several days and allegedly eliminating access to law library were not extraordinary circumstances and did not equitably toll one-year statute of limitations); Atkins v. Harris, 1999 WL 13719, *2 (N.D.Cal. Jan.7, 1999) ("lockdowns, restricted library access and transfers do not constitute extraordinary circumstances sufficient to equitably toll the [AEDPA] statute of limitations. Prisoners familiar with the routine restrictions of prison life must take such matters into account when calculating when to file a federal [habeas] petition.... Petitioner's alleged lack of legal sophistication also does not excuse the delay."); Giraldes v. Ramirez-Palmer, 1998 WL 775085, *2 (N. D.Cal.1998) (holding that prison lockdowns do not constitute extraordinary circumstances warranting equitable tolling). Finally, Petitioner's allegation that his appellate attorney "failed to inform him of his status in the courts" does not justify equitable tolling, because Petitioner has failed to explain, let alone establish, how his attorney's conduct prevented Petitioner from filing a timely federal petition in any event. See Lawrence v. Florida, 549 U.S. 327, 336-337, 127 S. Ct. 1079 (2007)("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel."); see also Frye v. Hickman, 273 F. 3d 1144, 1145-1146 (9th Cir 2006)(attorney's miscalculation of the limitation period and negligence in general do not warrant equitable tolling); Miranda v. Castro, 292 F. 3d 1063-1068 (9th Cir. 2002)(same). 7

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In sum, Petitioner has failed to establish that he acted diligently in pursuing federal habeas relief or that an extraordinary circumstance prevented him from filing a timely federal petition. Petitioner is not entitled to equitable tolling. RECOMMENDATIONS Accordingly, the Court HEREBY RECOMMENDS that Respondent's motion to dismiss (Doc. 19), be GRANTED and that the amended petition for writ of habeas corpus (Doc. 9) be DISMISSED as untimely under 28 U.S.C. § 2244(d). These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fifteen (15) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The District Judge will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: January 20, 2009 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE

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