Jones v. Unknown

Filing 19

ORDER DISMISSING Petition for Writ of Habeas Corpus for Violation of the Statute of Limitations 1 ; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; ORDER DIRECTING Clerk of the Court to Enter Judgment and CLOSE the File, signed by Magistrate Judge Jennifer L. Thurston on 12/12/13. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES JONES,

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Petitioner,

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v.
UNKNOWN,

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Respondent.

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Case No.: 1:13-cv-00918-JLT
ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS FOR VIOLATION OF THE
STATUTE OF LIMITATIONS (Doc. 1)
ORDER DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY
ORDER DIRECTING CLERK OF THE COURT TO
ENTER JUDGMENT AND CLOSE THE FILE

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On October 24, 2013, Petitioner filed his written consent to the

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jurisdiction of the United States Magistrate Judge for all purposes. (Doc. 13).

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PROCEDURAL HISTORY
The instant petition was filed on June 13, 2013.1 After a preliminary review of the petition

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In Houston v. Lack, the United States Supreme Court held that a pro se habeas petitioner’s notice of appeal is deemed
filed on the date of its submission to prison authorities for mailing, as opposed to the actual date of its receipt by the court
clerk. Houston v. Lack, 487 U.S. 166, 276, 108 S.Ct. 2379, 2385 (1988). The rule is premised on the pro se prisoner’s
mailing of 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. The Ninth Circuit
has applied the “mailbox rule” to state and federal petitions in order to calculate the tolling provisions of the AEDPA.
Saffold v. Neland, 250 F.3d 1262, 1268-1269 (9th Cir. 2000); Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).
The date the petition is signed may be considered the earliest possible date an inmate could submit his petition to prison
authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n. 2 (9th Cir. 2003). Accordingly,

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indicated that the petition may be untimely and should therefore be dismissed, the Court, on June 26,

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2013, issued an Order to Show Cause why the petition should not be dismissed as untimely and

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provided that Petitioner could file a response within thirty days. (Doc. 4). After numerous requests

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for extensions of time were requested and granted, Petitioner filed his response to the June 26, 2013

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Order to Show Cause on December 10, 2013. (Doc. 16). After reviewing the response, which fails to

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address the timeliness issue, the Court concludes that the petition is untimely and must be dismissed.
DISCUSSION

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A. Preliminary Review of Petition.

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition

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if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is

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not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The

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Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas

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corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after

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an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).

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The Ninth Circuit, in Herbst v. Cook, concluded that a district court may dismiss sua sponte a

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habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate

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notice of its intent to dismiss and an opportunity to respond. 260 F.3d at 1041-42. By issuing the

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Order to Show Cause, and affording Petitioner the notice required by the Ninth Circuit in Herbst, the

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Court has complied with the Ninth Circuit’s directive regarding notice to inmates.

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B. Limitation Period For Filing Petition For Writ Of Habeas Corpus

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

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1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus

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filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997);

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Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997).

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The instant petition was filed on June 13, 2013, and thus, it is subject to the provisions of the AEDPA.

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for all of Petitioner’s state petitions and for the instant federal petition, the Court will consider the date of signing of the
petition (or the date of signing of the proof of service if no signature appears on the petition) as the earliest possible filing
date and the operative date of filing under the mailbox rule for calculating the running of the statute of limitation.
Petitioner signed the instant petition on June 13, 2013. (Doc. 1, p. 6).

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The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal

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petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d)

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reads:

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(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.

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(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

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review became final. The AEDPA, however, is silent on how the one-year limitation period affects

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cases where direct review concluded before the enactment of the AEDPA. The Ninth Circuit has held

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that if a petitioner whose review ended before the enactment of the AEDPA filed a habeas corpus

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petition within one year of the AEDPA’s enactment, the Court should not dismiss the petition pursuant

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to § 2244(d)(1). Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283,1286 (9th Cir.), cert.

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denied, 118 S.Ct. 899 (1998); Calderon v. United States Dist. Court (Kelly), 127 F.3d 782, 784 (9th

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Cir.), cert. denied, 118 S.Ct. 1395 (1998). In such circumstances, the limitations period would begin

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to run on April 25, 1996, and would expire, if not tolled, on April 24, 1997. Patterson v. Stewart, 2001

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WL 575465 (9th Cir. Ariz.).
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Here, Petitioner was convicted on August 11, 1993, in the Fresno County Superior Court of

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robbery and first degree murder and sentenced to a prison term of life without the possibility of parole.

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(Doc. 1, p. 10). It appears that the matter was appealed to the California Court of Appeal, Fifth

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Appellate District, although Petitioner did not raise therein the issues now raised in the instant petition.

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(Doc. 1, pp. 62; 103). Although Petitioner has not provided any information regarding his direct

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appeal, it appears a virtual certainty that Petitioner’s direct appeal, if pursued through the California

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Supreme Court, would have concluded prior to April 24, 1996, the effective date of the AEDPA and at

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a point in time almost three years after his conviction. That being the case, Petitioner’s one-year

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limitation period would have expired on April 24, 1997. As mentioned, the instant petition was filed

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on June 13, 2013, over 16 years after the one-year period would have expired. Thus, unless Petitioner

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is entitled to either statutory or equitable tolling sufficient to account for those 16 years, the instant

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petition is untimely and should be dismissed.2

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C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)

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Under the AEDPA, the statute of limitations is tolled during the time that a properly filed

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application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. §

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2244(d)(2). A properly filed application is one that complies with the applicable laws and rules

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governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531

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U.S. 4, 8, 121 S. Ct. 361 (2000). An application is pending during the time that ‘a California

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petitioner completes a full round of [state] collateral review,” so long as there is no unreasonable delay

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in the intervals between a lower court decision and the filing of a petition in a higher court.

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Delhomme v. Ramirez, 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized

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by Waldrip v. Hall, 548 F. 3d 729 (9th Cir. 2008)(per curium)(internal quotation marks and citations

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omitted); see Evans v. Chavis, 546 U.S. 189, 193-194, 126 S. Ct. 846 (2006); see Carey v. Saffold,

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536 U.S. 214, 220, 222-226, 122 S. Ct. 2134 (2002); see also, Nino v. Galaza, 183 F.3d 1003, 1006

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Both of Petitioner’s claims involve issues adjudicated at and evidence presented during his original trial. Thus, the
“trigger” for the one-year limitation period was the expiration of his direct appeal and the enactment of the AEDPA. There
is no basis from which to conclude that Petitioner is entitled to a later “trigger” date based on, e.g., the date on which the
factual basis for the claim could have been discovered through the exercise of reasonable diligence. 28 U.S.C. §
2244(d)(1)(D).

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(9th Cir. 1999).
Nevertheless, there are circumstances and periods of time when no statutory tolling is allowed.

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For example, no statutory tolling is allowed for the period of time between finality of an appeal and

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the filing of an application for post-conviction or other collateral review in state court, because no

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state court application is “pending” during that time. Nino, 183 F.3d at 1006-1007; Raspberry v.

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Garcia, 448 F.3d 1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling is allowed for the

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period between finality of an appeal and the filing of a federal petition. Id. at 1007. In addition, the

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limitation period is not tolled during the time that a federal habeas petition is pending. Duncan v.

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Walker, 563 U.S. 167, 181-182, 121 S.Ct. 2120 (2001); see also, Fail v. Hubbard, 315 F. 3d 1059,

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1060 (9th Cir. 2001)(as amended on December 16, 2002). Further, a petitioner is not entitled to

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statutory tolling where the limitation period has already run prior to filing a state habeas petition.

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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the

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reinitiation of the limitations period that has ended before the state petition was filed.”); Jiminez v.

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White, 276 F. 3d 478, 482 (9th Cir. 2001). Finally, a petitioner is not entitled to continuous tolling

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when the petitioner’s later petition raises unrelated claims. See Gaston v. Palmer, 447 F.3d 1165,

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1166 (9th Cir. 2006).
Here, Petitioner appears to have filed the following state habeas petitions: (1) petitioner filed in

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the 5th DCA on October 5, 2004, and denied on October 28, 2004; (2) petition filed in the 5th DCA on

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March 26, 200,8 and denied on April 25, 2008; (3) petition for writ of mandate filed in the 5th DCA on

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May 20, 2008, and denied on July 7, 2008; (4) petitioner for review filed in the California Supreme

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Court on July 28, 2008, and denied on October 16, 2008; (5) petition filed in the Superior Court of

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Fresno County on May 17, 2012, and denied on August 30, 2012;3 and (6) petition filed in the 5th

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DCA on September 27, 2012, and denied on November 21, 2012. Although Petitioner does not

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specify the precise dates for all of these proceedings, the Court has accessed the California court

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In computing the running of the statute of limitations, the day an order or judgment becomes final is excluded and time
begins to run on the day after the judgment becomes final. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001)
(Citing Rule 6 of the Federal Rules of Civil Procedure).

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system’s electronic database to ascertain a more complete chronology.4
Unfortunately, none of these above-mentioned habeas proceedings are entitled to statutory

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tolling under the AEDPA, since all of them were filed after the one-year period would have expired in

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1997. A petitioner is not entitled to tolling where the limitations period has already run prior to filing

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a state habeas petition. Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000); Jiminez v. Rice, 276

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F.3d 478 (9th Cir. 2001); see Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)(same);

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Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 2003)(“section 2244(d) does not permit the reinitiation

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of the limitations period that has ended before the state petition was filed.”); Jackson v. Dormire, 180

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F.3d 919, 920 (8th Cir. 1999) (petitioner fails to exhaust claims raised in state habeas corpus filed after

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expiration of the one-year limitations period). Thus, unless Petitioner is entitled to equitable tolling,

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the petition is untimely by 16 years and must be dismissed.

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D. Equitable Tolling.

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The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to equitable

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tolling in appropriate cases. See Holland v. Florida, __U.S.__, 130 S.Ct. 2549, 2561 (2010); Calderon

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v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997). The limitation period is subject to

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equitable tolling when “extraordinary circumstances beyond a prisoner’s control make it impossible to

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file the petition on time.” Shannon v. Newland, 410 F. 3d 1083, 1089-1090 (9th Cir. 2005)(internal

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quotation marks and citations omitted). “When external forces, rather than a petitioner’s lack of

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diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations

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may be appropriate.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). “Generally, a litigant

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seeking equitable tolling bears the burden of establishing two elements: “(1) that he has been pursuing

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his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Holland, 130

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S.Ct. at 2652; Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807 (2005). “[T]he threshold

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The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th
Cir. 1993). The record of state court proceeding is a source whose accuracy cannot reasonably be questioned, and judicial
notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v.
Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.); see also Colonial Penn Ins.
Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir.
1980). As such, the internet website for the California Courts, containing the court system’s records for filings in the Court
of Appeal and the California Supreme Court are subject to judicial notice.

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necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.”

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Miranda v. Castro, 292 F. 3d 1062, 1066 (9th Cir. 2002)(citation omitted). As a consequence,

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“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

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record now before the Court, the Court sees no basis for such a claim. Accordingly, the Court

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concludes that Petitioner is not entitled to equitable tolling.

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E. Actual Innocence.

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In his response to the Order to Show Cause, Petitioner mentions, in passing, that he is “actually

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innocent” of the crimes for which he was convicted and cites Schlup v. Delo, 515 U.S. 298, 115 S.Ct.

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851 (1995), in support of his contention. (Doc. 16, p. 4). In McQuiggin v. Perkins, 569 U.S.___,

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2013 WL 2300806 (2013), the United States Supreme Court held that “actual innocence” could be an

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exception to the one-year limitation bar in the AEDPA:
We hold that actual innocence, if proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar, as it was in Schlup and House,5 or, as in this
case, expiration of the statute of limitations. We caution, however, that tenable actualinnocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement
unless he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S.,
at 329; see House, 547 U.S., at 538 (emphasizing that the Schlup standard is “demanding” and
seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual
innocence. Schlup, 513 U.S., at 332.

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McQuiggin, at *3. The Supreme Court went on to explain that an “unexplained delay in presenting

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new evidence bears on the determination whether the petitioner has made the requisite showing, and,

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thus, “a court may consider how the timing of the submission and the likely credibility of [a

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petitioner’s] affiants bear on the probable reliability of evidence [of actual innocence].” Id. at *11,

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quoting Schlup, 513 U.S. at 332. See also Lee v. Lampert, 653 F.3d 929, 932-933 (9th Cir. 2011)(en

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banc)(“a credible claim of actual innocence constitutes an equitable exception to AEDPA’s limitations

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period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his

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Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995); House v. Bell, 547 U.S. 518, 126 S.Ct. 2064 (2006).

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otherwise time-barred claims heard on the merits.” )
The “Schlup gateway,” however, may only be employed when a petitioner “falls within the

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narrow class of cases…implicating a fundamental miscarriage of justice. Schlup, 513 U.S. at 314-315;

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McQuiggin, at *9. However, “[t]o ensure that the fundamental miscarriage of justice exception would

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remain ‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same time ensuring

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that the exception would extend relief to those who were truly deserving,” the Supreme Court

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explicitly limited the equitable exception to cases where a petitioner has made a showing of innocence.

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Schlup, 513 U.S. at 321. “The Supreme Court did not hold that a petitioner may invoke Schlup

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whenever he wants a trial do-over.” Lee, 653 F.3d at 946 (Kozinski, J., concurring.)

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The rule announced in McQuiggin is not a type of equitable tolling, which provides for an

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extension of the time statutorily prescribed, but an equitable exception to § 2244(d)(1). McQuiggin at

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*7. Moreover, the Court noted that actual innocence, if proven, merely allows a federal court to

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address the merits of a petitioner’s constitutional claims; the Court has yet to address whether “a

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freestanding claim of actual innocence” provides a separate basis for granting habeas relief.

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McQuiggin at *7.

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Here, Petitioner has failed to meet Schlup’s exacting standard. The gravamen of Petitioner’s

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actual innocence claim is that, after his arrest, he requested a DNA test and the chance to take a lie

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detector test, both of which were refused by the prosecution. (Doc. 16, p. 4). Petitioner also makes

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numerous generalized and self-serving conclusions about his innocence, e.g., the prosecution’s

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evidence at trial “could not have withstood scrutiny in light of the favorable evidence that was not

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presented at trial,” prosecution witnesses “were persuaded to lie,” and his trial counsel failed to

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present “arguable issues” that, if presented, would have allowed Petitioner to prevail at trial. (Doc. 16,

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pp. 5-7).

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Although Petitioner makes numerous serious charges about the prosecution suborning perjury

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and refusing to provide exculpatory evidence, Petitioner provides no specific proof of his actual

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innocence. Petitioner’s only specific contentions, i.e., that he was refused a DNA test and a lie

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detector test, are woefully insufficient to meet the Schlup standard. Petitioner appears to reason that no

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guilty person would request such tests, and therefore, of necessity, he must be innocent. The Court is
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unwilling to indulge in such mental gymnastics.
Rather, in order to meet that standard, Petitioner would have to establish that DNA and lie

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detector testing, if conducted, would have probably resulted in his acquittal. Yet, Petitioner has

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presented no evidence from which the Court could conclude that such testing would have resulted in

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anything other than a guilty verdict. In sum, Petitioner asks this Court to simply believe he is innocent

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and to speculate that if such tests had been conducted, they would have been favorable to Petitioner

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and that he would have been acquitted. This is not the type of showing of actual innocence

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contemplated by Schlup. Petitioner has not shown that his case falls within that “narrow class” of

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cases that constitute a miscarriage of justice. To the contrary, it appears merely that, as Judge

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Kozinsky noted, Petitioner has invoked Schlup simply because “he wants a trial do-over.” Lee, 653

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F.3d at 946. Under such circumstances, the Court has little difficulty concluding that Petitioner has

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failed to show actual innocence.
CONCLUSION

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The burden of demonstrating that the AEDPA’s one-year limitation period was sufficiently

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tolled, whether statutorily or equitably, rests with the petitioner. See, e.g., Pace v. DiGuglielmo, 544

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U.S. 408, 418 (2005); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005); Smith v. Duncan, 297

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F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). For the reasons

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set forth above, Petitioner has failed to meet that burden. Accordingly, the Court has no choice but to

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dismiss the petition as untimely.

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Moreover, the Court declines to issue a certificate of appealability. A state prisoner seeking a

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writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and

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an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336

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(2003). The controlling statute in determining whether to issue a certificate of appealability is 28

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U.S.C. § 2253, which provides as follows:

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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge,
the final order shall be subject to review, on appeal, by the court of appeals for the circuit
in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a
warrant to remove to another district or place for commitment or trial a person charged
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with a criminal offense against the United States, or to test the validity of such person's
detention pending removal proceedings.

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(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from—

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(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made
a substantial showing of the denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).

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If a court denied a petitioner’s petition, the court may only issue a certificate of appealability

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when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. §

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2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could

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debate whether (or, for that matter, agree that) the petition should have been resolved in a different

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manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

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In the present case, the Court finds that Petitioner has not made the required substantial

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showing of the denial of a constitutional right to justify the issuance of a certificate of appealability.

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Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal

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habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the

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Court DECLINES to issue a certificate of appealability.

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ORDER
For the foregoing reasons, the Court HEREBY ORDERS:

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1. The petition for writ of habeas corpus (Doc. 1), is DISMISSED as untimely;

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2. The Clerk of the Court is DIRECTED to enter judgment and close the file; and,

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3. The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

December 12, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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