Hillhouse v. Wong

Filing 163

ORDER ADOPTING 103 FINDINGS AND RECOMMENDATIONS in full signed by Judge Morrison C. England, Jr. on 11/18/09 and ORDERING that respondent's 56 Motion to Dismiss is GRANTED IN PART and DENIED IN PART; the claims deemed timely and deemed untimely are detailed in the order. (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Pursuant to Federal Rule of Civil Procedure 25(d), Robert K. Wong is substituted for his predecessor. The Clerk of the Court is directed to update the docket to reflect the above caption. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DANNIE RAY HILLHOUSE, Petitioner, vs. ROBERT K. WONG, JR.,1 Respondent. /

No. CIV S-03-0142-MCE-CMK DEATH PENALTY CASE ORDER

Petitioner, a state prisoner proceeding with appointed counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules. On April 18, 2007, the Magistrate Judge filed amended findings and recommendations (Doc. 103) herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations, and responses thereto, have been filed (Docs. 104, 108, 112, and 123; 107,

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124, 128, 129 ,131, 133, and 136). In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. Petitioner generally objects to the findings and recommendations on the grounds that the Magistrate Judge erred in his determination that the claims addressed do not relate back to the original petition. The court finds those objections have no merit. Petitioner also objects to the Magistrate Judge's determination that Petitioner is not entitled to equitable tolling. In addition to the grounds he raised in his opposition to the motion to dismiss, Petitioner raises two additional grounds for entitlement to equitable tolling: (1) that he was required to comply with the state habeas pleading requirements and, (2) that Respondent waived the statute of limitations or misled Petitioner regarding the state's position on the timeliness issue by agreeing to extensions of time and not opposing the requests to hold the case in abeyance while he exhausted his claims in state court. Neither of these new grounds are sufficient for finding equitable tolling applies. As the Magistrate Judge addressed in the findings and recommendations, in order to prevail on the issue of equitable tolling, a prisoner must demonstrate (1) extraordinary circumstances beyond the prisoner's control that (2) made it impossible to file a petition on time. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). Petitioner fails to show how complying with the state pleading requirements is such an extraordinary circumstance that it was impossible for him to file a timely petition. In addition, the court finds no merit to his argument that Respondent waived the statute of limitations or misled Petitioner on his position. As Petitioner concedes, there was no affirmative waiver by Respondent, and simply agreeing to extensions of time and not opposing a request to hold the case in abeyance is insufficient to find Respondent

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Another objection Petitioner raises is in relation to his Claim NNN. Petitioner objects to a misstatement by the Magistrate Judge that the claim addresses the California Supreme Court's habeas review process, rather than automatic appeal. As the Respondent states, this was simply a misstatement by the Magistrate Judge as is evidenced by his reference to the automatic appeal process in the heading for this discussion. This simple misstatement does not affect the determination that Claim NNN does not relate back to the original petition. 3
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constructively waived that affirmative defense.2 Accordingly, IT IS HEREBY ORDERED that: 1. full; 2. part; 3. The following claims are found to relate back to the original petition and, Respondent's motion to dismiss (Doc. 56) is granted in part and denied in The findings and recommendations filed April 18, 2007, are adopted in

therefore, are considered timely: Claim A Claim B Claim Q: Claim Z Claim DD: Claim HH Claim JJ Claim MM Claim PP Claim QQ: Claim TT Claim XX Claim CCC Claim HHH Claim JJJ Claim LLL

only to the initial search of the dwelling where petitioner and Lonnie lived and to Lonnie's statements only to the insufficiency of evidence instruction

only to the claim that the prosecutor mislead the jury when she stated that the always thought that petitioner was the murderer

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. Claim EEEE: only with respect to the following sub-claims: (1) death eligibility and special circumstances (Doc. 13 at 584); (2) multiple counts of special circumstances and aggravated claims (586); (3) circumstances of the crime factor claims (588); (4) unadjudicated violent criminal activity claims (589); (5) factor 190.3(c) prior felony claims (590); (6) failure to identify aggravating and mitigating factors (593); (7) failure to require unanimity as to aggravating circumstances (597); (8) lack of unanimous findings by the jury claims (597); (9) burden of proof and persuasion claims (599); (10) proportionality of sentence and comparative sentencing claims (602) (11) cumulative lack of procedural and substantive protections violates the constitution (604); and (12) cumulative error instruction only with respect to the fair trial and Sixth and Fourteenth Amendment claims. The following claims are found not to relate back to the original claim and,

therefore, are denied as untimely: Claim E Claim F Claim G Claim R Claim S Claim W Claim X Claim Y Claim II Claim NN Claim OO Claim RR Claim WW Claim YY Claim BBB Claim DDD Claim EEE Claim FFF Claim GGG Claim III Claim MMM Claim NNN Claim OOO 4

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Claim PPP Claim QQQ Claim RRR Claim AAAA Claim BBBB Claim CCCC Claim FFFF Claim JJJJ

Dated: November 18, 2009 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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