Addison v. Tampkins

Filing 5

FINDINGS and RECOMMENDATIONS that the Court Dismiss the 1 Petition as Untimely signed by Magistrate Judge Sheila K. Oberto on 06/01/2018. Referred to Judge Drozd; Objections to F&R due by 7/9/2018.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH DONALD ADDISON,

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Petitioner,

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No. 1:18-cv-00725-SKO HC

v.

FINDINGS AND RECOMMENDATION
THAT THE COURT DISMISS
THE PETITION AS UNTIMELY

CYNTHIA TAMPKINS, Warden,

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Respondent.

COURT CLERK TO ASSIGN DISTRICT
JUDGE

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(Doc. 1)

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Screening Order

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Petitioner, Joseph Donald Addison, is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner presents two grounds for habeas

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relief: (1) violation of his Miranda1 and Massiah2 rights; and (2) judicial bias.
I.

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Preliminary Screening

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Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary

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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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Miranda v. Arizona, 384 U.S. 436 (1966).
Massiah v. United States, 377 U.S. 201 (1964).

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plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the

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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for writ of habeas corpus should not be dismissed without leave to amend unless it

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appears that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v.
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Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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The Ninth Circuit has held that the a district court may sua sponte dismiss a petition for

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writ of habeas corpus on the ground that it is untimely, so long as the court provides the petitioner

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with adequate notice of its intent to dismiss and an opportunity to respond. Herbst v. Cook, 260

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F.3d 1039, 1042-43 (9th Cir. 2001).
II.

Procedural Background

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On April 16, 1996, Petitioner was convicted of three counts of second degree robbery.

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The judgment was affirmed by the California Court of Appeal for the Fifth Appellate District on

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October 7, 1997. The California Supreme Court denied the petition for review without prejudice

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on December 23, 1997.

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On May 15, 2017, Petitioner filed a petition for writ of habeas corpus with the Madera
Superior Court, which was denied as untimely on May 22, 2017. On June 21, 2017, Petitioner
filed a petition for writ of habeas corpus with the California Court of Appeal, Fifth Appellate

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District, which was denied on June 29, 2017. On July 12, 2017, Petitioner filed a petition for writ
of habeas corpus with the California Supreme Court, which was denied on September 13, 2017.
III.

Standard of Review

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

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1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

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enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA provides a one-year period of

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limitation in which a petitioner may file a petition for writ of habeas corpus. 28 U.S.C. §
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2244(d)(1). The limitations period is measured from the latest of:

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(A)
the date on which the judgment became final by conclusion
of direct review or the expiration of the time for seeking such
review;

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(B)
the date on which the impediment to filing a 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;

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(C)
the date on which the constitutional right asserted was
initially recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or

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(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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28 U.S.C. § 2244(d)(1).

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The limitations period is tolled during the time that a “properly filed” application for

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review is in state court. § 2244(d)(2) (“The time during which a properly filed application for

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State post-conviction or other collateral review with respect to the pertinent judgment or claim is

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pending shall not be counted toward any period of limitation under this subsection.”)

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IV.

Petitioner’s Petition Is Untimely

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Here, direct review in the State of California ended on December 23, 1997, when the

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California Supreme Court denied review. The federal statutory limitations period began on

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March 23, 1998, following the expiration of the 90-day period to file a petition for writ of

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certiorari in the United States Supreme Court. Accordingly, the one-year statutory limitations

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period expired on March 23, 1999. Petitioner filed his petition for writ of habeas corpus with this
court on May 25, 2018; consequently unless Petitioner is entitled to statutory or equitable tolling,

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the petition is untimely.
The limitations period is not tolled from the time the state court issues a final decision on

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direct appeal to the time the first state collateral challenge is filed, because there is no case

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“pending” in state court during this interval. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010)
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(citing Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006)).

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Based on the pending petition, as well as the California courts’ information, Petitioner did
not file his first state post-conviction collateral action until May 15, 2017—long after the
limitations period expired on March 23, 1999. Because Petitioner’s limitations period expired

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before he filed his petition with the Supreme Court, his filing in the Supreme Court does not

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extend his limitations period.

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(“[S]ection 2244(d) does permit the reinitiation of the limitations period that has ended before the

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state petition was filed.”); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000); Jiminez v. Rice,

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276 F.3d 478, 482 (9th Cir. 2001). Consequently, Petitioner’s petition is untimely and the Court

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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)

recommends the petition be dismissed.

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V.

Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides:

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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.

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(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 with a criminal offense against the
United States, or to test the validity of such person's detention pending
removal proceedings.
(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—
(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 issues or issues satisfy the showing required by
paragraph (2).

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If a court denies a habeas petition, the court may only issue a certificate of appealability

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"if jurists of reason could disagree with the district court's resolution of his constitutional claims

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or that jurists could conclude the issues presented are adequate to deserve encouragement to

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proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Although the petitioner is not required to prove the merits of his case, he must demonstrate

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"something more than the absence of frivolity or the existence of mere good faith on his . . .

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part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that the petition is barred by

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the statute of limitations to be debatable, wrong, or deserving of encouragement to proceed

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further. Accordingly, the undersigned recommends that the Court decline to issue a certificate of

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appealability.

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VI.

Conclusion and Recommendation
The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus

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with prejudice and decline to issue a certificate of appealability.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

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(30) days after being served with these Findings and Recommendations, either party may file

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written objections with the Court. The document should be captioned AObjections to Magistrate

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Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and

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filed within fourteen (14) days after service of the objections. The parties are advised that failure
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to file objections within the specified time may constitute waiver of the right to appeal the District

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Court's order.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v.

Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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The Court Clerk is hereby directed to assign a district judge to this action.
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IT IS SO ORDERED.

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Dated:

June 1, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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