Quirino v. Gonzales

Filing 10

ORDER to SHOW CAUSE within thirty (30) days why the Petition should not be dismissed for violation of the one-year statute of limitations in 28 U.S.C. § 2244(d) and for lack of exhaustion, signed by Magistrate Judge Jennifer L. Thurston on 9/1/2010. Show Cause Response due by 10/4/2010. (Marrujo, C)

(HC) Quirino v. Gonzales

Doc. 10

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I 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 le r k . Houston v. Lack, 487 U.S. 166, 276, 108 S.Ct. 2379, 2385 (1988). The rule is premised on the pro se prisoner's m a ilin g of legal documents through the conduit of "prison authorities whom he cannot control and whose interests might be a d v e r s e to his." Miller v. Sumner, 921 F.2d 202, 203 (9th Cir. 1990); see, Houston, 487 U.S. at 271, 108 S.Ct. at 2382. The N in th Circuit has applied the "mailbox rule" to state and federal petitions in order to calculate the tolling provisions of the A E D P A . Saffold v. Neland, 250 F.3d 1262, 1268-1269 (9th Cir. 2000), amended May 23, 2001, vacated and remanded on o th e r grounds sub nom. Carey v. Saffold, 536 U.S. 214, 226 (2002); Stillman v. LaMarque, 319 F.3d 1199, 1201 (9 th cir.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

JOHNNY QUIRINO,

) ) Petitioner, ) ) v. ) ) ) TERRI GONZALES, Warden, ) ) Respondent. ) ____________________________________)

1:10-cv-01467-OWW-JLT HC ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED FOR VIOLATION OF THE ONE-YEAR STATUTE OF LIMITATIONS AND FOR LACK OF EXHAUSTION (Doc. 1) ORDER REQUIRING RESPONSE TO BE FILED WITHIN THIRTY DAYS

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. The instant federal petition for writ of habeas corpus was filed on August 10, 2010, challenging his 1996 conviction in the Kern County Superior Court for a violation of California Penal Code 666 (petty theft with priors) and resulting twenty-five year to life sentence under California's Three Strikes Law. (Doc. 1, p. 1).1 A preliminary review of the Petition,

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however, reveals that the petition may be untimely and should therefore be dismissed. DISCUSSION A. Preliminary Review of Petition 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 exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). The Ninth Circuit, in Herbst v. Cook, concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. 260 F.3d at 1041-42. By issuing this Order to Show Cause, the Court is affording Petitioner the notice required by the Ninth Circuit in Herbst. 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, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on August 10, 2010, and thus, it is subject to the provisions of the AEDPA. The AEDPA imposes a one year period of limitation 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)

2 0 0 3 ) ; Smith v. Ratelle, 323 F.3d 813, 816 n. 2 (9th Cir. 2003). The date the petition is signed may be considered the earliest p o s s ib le date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 3 3 0 F.3d 1146, 1149 n. 2 (9th cir. 2003). Accordingly, for all of Petitioner's state petitions and for the instant federal petition, th e Court will consider the date of signing of the petition (or the date of signing of the proof of service if no signature appears o n the petition) as the earliest possible filing date and the operative date of filing under the mailbox rule for calculating the r u n n in g of the statute of limitation. Petitioner signed the instant petition on August 10, 2010. (Doc. 1, p. 15).

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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). Petitioner alleges that he was convicted on June 25, 1996 in the Superior Court for the County of Kern, and that his conviction was affirmed by the California Court of Appeal, Fifth Appellate District ("5th DCA"), on November 12, 1997. Petitioner's attorney attempted to file a petition for review in the California Supreme Court, but it was rejected as untimely. (Doc. 1, p. 12). Counsel filed a motion for relief from default with the California Supreme Court that was denied by letter dated December 30, 1997. (Doc. 1, pp. 10; 12). According to the California Rules of Court, a decision of the Court of Appeal becomes final thirty days after filing of the opinion, Cal. Rules of Court, Rule 8.264(b)(1), and an appeal must be taken to the California Supreme Court within ten days of finality. Cal. Rules of Court, Rule 8.500(e)(1). Since Petitioner was unsuccessful in filing his petition for review, his conviction would have become final forty days after the Court of Appeal's November 12, 1997 decision was filed, i.e., on December 22, 1997. Petitioner would then have one year from the following day, December 23, 1997, or until December 22, 1998, absent applicable tolling, within which to file his federal petition for writ of habeas corpus. As mentioned, the instant petition was filed on August 10, 2010, almost twelve years after the date the one-year period would have expired. Thus, unless Petitioner is entitled to either statutory or 3

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equitable tolling, the instant petition is untimely and should 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 the application 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), abrogated on other grounds as recognized by Waldrip v. Hall, 548 F. 3d 729 (9th Cir. 2008)(per curium)(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 (2002); see also, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Nevertheless, there are circumstances and periods of time when no statutory tolling is 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; Raspberry v. Garcia, 448 F.3d 1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling 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, 563 U.S. 167, 181-182, 121 S.Ct. 2120 (2001); see also, Fail v. Hubbard, 315 F. 3d 1059, 1060 (9th Cir. 2001)(as amended on December 16, 2002). 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 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, 4

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447 F.3d 1165, 1166 (9th Cir. 2006). Here, Petitioner affirmatively alleges that he has not presented any state habeas petitions to the California Supreme Court. (Doc. 1, p. 2). Accordingly, he is not entitled to any statutory tolling for the thirteen intervening years between the commencement of the one-year period and the filing of the instant petition. Thus, unless he is entitled to equitable tolling, the petition is untimely and must be dismissed. D. Equitable Tolling The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to equitable tolling in appropriate cases. See Holland v. Florida, __U.S.__, 130 S.Ct. 2549, 2561 (2010); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997). 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). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland, 2010 WL 2346549 at *12; 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)(citation omitted). As a consequence, "equitable tolling is unavailable in most cases." Miles, 187 F. 3d at 1107. Petitioner has made no express claim of entitlement to equitable tolling and, based on the record now before the Court, the Court sees no basis for such a claim. Indeed, Petitioner has submitted as an exhibit a letter from his appellate counsel to Petitioner, dated January 5, 1998, explaining that federal law requires that he file his federal petition within one year. (Doc. 1, p.14). Although counsel appears to have miscalculated the one year period to run from January 2, 1998 until January 1, 1999, rather than as stated above, Petitioner was nevertheless on notice at that early 5

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date that he must exercise due diligence in order to timely file his federal petition. Moreover, his attorney clearly explained to Petitioner that, because the California Supreme Court has rejected his petition for review as untimely, in order to exhaust his claims he would first need to present his claims to the state high court in a habeas corpus petition. (Id.). Finally, it is clear from counsel's letter to Petitioner, that is in essence an apology to him for failing to timely file the petition for review, that Petitioner was fully aware of the factual basis for his claim of ineffective assistance of appellate counsel as of the letter's date, i.e., January 5, 1998. In other words, Petitioner has been on notice of all of the essential legal requirements for timely filing his federal petition since at least January 5, 1998; yet he failed to do anything until filing the instant petition on August 10, 2010. Under those circumstances, the Court would have great difficulty finding that Petitioner has acted with the due diligence required of inmates proceeding in federal court with habeas corpus petitions. In sum, Petitioner would not appear to be entitled to equitable tolling. Thus, at this juncture, it appears that the petition is untimely and should be dismissed. E. Failure To Exhaust Claims. An additional concern is that, because Petitioner's petition for review was rejected by the California Supreme Court and Petitioner has not filed any subsequent state habeas petitions, the claims raised in the instant petition are unexhausted. A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 6

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claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows: In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). The "fair presentation" requirement is not satisfied if the state's highest court does not reach the merits of a claim due to the procedural context in which it was presented. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Where a state court "has actually passed upon the claim...and where the claim has been presented as of right but ignored (and therefore impliedly rejected),...it is fair to assume that further state proceedings would be useless." Castille, 489 U.S. at 351. "Such an assumption is not appropriate, however­and the inference of an exception to the 7

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requirement of § 2254(c) is therefore not justified­when the claim has been presented for the first and only time in a procedural context in which its merits will not be considered" absent special circumstances. Id. As discussed above, Petitioner's petition for review was rejected by the California Supreme Court as untimely and the high court denied Petitioner's motion for relief from default. (Doc. 1, pp. 10; 12). Because Petitioner's untimely attempt to file his petition for review sought to present his claims to the California Supreme Court in a procedural context, in which the claims' merits would not be considered absent special circumstances, Petitioner has not met the "fair presentation" element of the exhaustion requirement. Castille, 489 U.S. at 351. Accordingly, in addition to being untimely, the petition is entirely unexhausted. Because Petitioner has not presented his claims for federal relief to the California Supreme Court, the Court must dismiss the petition. See Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc); Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997). The Court cannot consider a petition that is entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Calderon, 107 F.3d at 760. However, because the Ninth Circuit requires that this Court provide Petitioner an opportunity to respond before dismissing the petition as untimely, the Court will also permit Petitioner to present any additional evidence he has regarding exhaustion of the claims in the instant petition. Should it be the case that the claims have been exhausted, and Petitioner has simply failed to inform the Court of that fact, Petitioner should make clear in his response to the Order to Show Cause precisely when and in what courts the claims have been raised. If possible, Petitioner should present to the Court documentary evidence that the claims were indeed presented to the California Supreme Court, including the dates of decision by the state courts. ORDER For the foregoing reasons, the Court HEREBY ORDERS: 1. Petitioner is ORDERED TO SHOW CAUSE within thirty (30) days of the date of service of this Order why the Petition should not be dismissed for violation of the one-year statute of limitations in 28 U.S.C. § 2244(d) and for lack of exhaustion. 8

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Petitioner is forewarned that his failure to comply with this order may result in a Recommendation that the Petition be dismissed pursuant to Local Rule 110.

IT IS SO ORDERED. Dated: September 1, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

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