Stone v Martel, et al.,
Filing
61
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/17/2011 RECOMMENDING that respondent's 36 motion to dismiss be granted; the 39 5/5/11 complaint be construed as a motion to dismiss the underlying criminal conviction, and, so construed, be denied; and all other 46 , 48 , 56 , 58 motions be denied as moot. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
AARON P. STONE,
Petitioner,
10
11
12
13
vs.
M. MARTEL, et al.,
Respondents.
FINDINGS and RECOMMENDATIONS
/
14
15
No. CIV S-10-3454 KJM GGH P
Petitioner is a state prisoner proceeding pro se with an application for a writ of
16
habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition,
17
arguing that it is untimely, or in the alternative, that the claims raised are not exhausted.
18
Petitioner has opposed the motion, and has additionally filed several other motions. For the
19
reasons outlined below, the undersigned recommends that the motion to dismiss be granted, and
20
that the remaining motions be denied as moot.
21
BACKGROUND
22
On November 14, 2006, petitioner was convicted by jury of six counts of violation
23
of California Penal Code § 288(a), Lewd Acts with a Child Under 14, and was subsequently
24
sentenced to a term of eighteen years on the convictions. The sentence consisted of: (1) an eight
25
year sentence for one of the counts, and (2) five consecutive, middle term sentences of 2 years
26
1
1
each on the remaining five counts. On July 31, 2008, the Court of Appeals, Third Appellate
2
District, overturned the conviction in part, finding insufficient evidence to support the
3
convictions, and modified the sentence to eliminate the corresponding consecutive two year term
4
on the overturned court. Lodged Doc. No. 1, at p. 12 (“The sentence is modified to eliminate the
5
consecutive term imposed on count six. The trial court is directed to amend the abstract of
6
judgment to reflect the foregoing....As so modified, the judgment is affirmed.”) In accordance
7
with the Court of Appeal’s order, on November 28, 2008, the trial court entered a new sentence
8
for 16 years. See Doc. No. 1, p. 80.1
On September 8, 2008, petitioner filed a petition for review in the California
9
10
Supreme Court. His petition raised the following questions: (1) whether petitioner’s Fourteenth
11
Amendment due process rights were violated by the trial court’s admission of evidence of
12
defendant’s prior bad acts; (2) whether the trial court’s imposition of an upper-term sentence
13
violated petitioner’s Fifth, Sixth, and Fourteenth Amendment rights, since the trial court, rather
14
than a jury, had made the findings underlying the factors relied upon by the trial court in
15
imposing the upper-term sentence; and (3) whether the trial court erred in sentencing petitioner to
16
consecutive terms of imprisonment. See Lodged Doc. No. 2. On October 16, 2008, the Supreme
17
Court denied review in a summary order which did not cite to any authority. See Lodged Doc.
18
No. 3. A review of the record reflects that petitioner has not filed any other challenges in the
19
state Supreme Court. See Doc. No. 36, p. 6.
20
On January 14, 2009, the time for petitioner to file a petition for writ of certoirari
21
in the United States Supreme Court expired. See Sup. Ct. R. 13. A review of the record reflects
22
that petitioner did not file any petitions with the United States Supreme Court.
23
\\\\
24
25
26
1
Citations are to page numbers assigned by the Court’s CM/ECF system.
2
1
In the meantime, petitioner sought collateral relief in the Superior Court and the
2
Court of Appeals. The record before this court reflects that, between 2007 and 2010, petitioner
3
filed more than twenty petitions or motions attacking the criminal judgment.
A brief review of these pleadings is necessary to determine the respondent’s
4
5
motion:
(1)
6
On January 17, 2007,2 petitioner filed a petition for writ of habeas corpus
7
in the Court of Appeal for the State of California, Third Appellate District
8
(docket no. C054619). See Lodged Doc. No. 52. Petitioner alleged,
9
among other things, that the evidence was insufficient to support his
10
conviction, and that his trial counsel was ineffective. Id. The Court of
11
Appeal denied the petition on January 25, 2007, citing In re Hillery, 202
12
Cal. App. 2d 293, 294 (1962) (petitioners should first seek habeas relief in
13
superior courts) and In re Harris, 5 Cal. 4th 813, 826-27 (1993) (habeas
14
may not be employed as a substitute for an appeal). See Lodged Doc. No.
15
53.
(2)
16
On May 3, 2007, petitioner filed a petition for writ of habeas corpus in
17
Sacramento County Superior Court (docket no. 07F04643). See Lodged
18
Doc. No. 4. Petitioner alleged, among other things, that the evidence
19
adduced at trial was insufficient to support his convictions. Petitioner also
20
noted that he had a pending appeal in the Court of Appeal. On May 30,
21
2007, the Superior Court dismissed the petition, noting that it was without
22
23
2
25
Under Houston v. Lack, a pleading is deemed filed when it is delivered to prison officials
for forwarding to the court. See 487 U.S. 266, 276, 108 S. Ct. 2379 (1988); see also Stillman v.
LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Where petitioner was proceeding pro se and
attached a signed, dated declaration of mailing to his filed pleading, the undersigned has used the
service date as the filing date.
26
3
24
1
authority to proceed on the writ petition for any error which was or might
2
have been presented to the appellate court. See Lodged Doc. No. 5.
3
(3)
On June 13, 2007, petitioner filed a petition for writ of habeas corpus in
4
Sacramento County Superior Court (docket no. 07F05632). See Lodged
5
Doc. No. 6. Petitioner alleged, among other things, that the evidence at
6
trial was insufficient to support his convictions and that the victim’s
7
testimony was not credible. On July 30, 2007, the Superior Court, noting
8
that petitioner’s appeal was still pending, denied the petition “for the same
9
reason his earlier petition was denied — while the appeal is pending, this
10
court lacks authority to entertain any claim which was, or should have
11
been, presented to the Court of Appeal.” See Lodged Doc. No. 7.
12
(4)
On June 18, 2007, petitioner filed a petition for writ of habeas corpus in
13
Sacramento County Superior Court (docket no. 07F06036). See Lodged
14
Doc. No. 8. Petitioner alleged, among other things, that his counsel was
15
incompetent and that his pre-trial bail amount was too high. On August 8,
16
2007, the Superior Court denied the petition, finding that petitioner failed
17
to establish a prima facie showing on either the counsel or bail claims.
18
See Lodged Doc. No. 9. (A third claim was dismissed because the direct
19
appeal was still pending.)
20
(5)
On July 31, 2008, the Court of Appeal affirmed the judgment against
21
petitioner, except as to Count 6, which was reversed for insufficient
22
evidence. On or about November 24, 2008, the trial court entered its
23
amended sentence.
24
25
26
(6)
On September 8, 2008, petitioner filed a petition for review in the
California Supreme Court. (Docket Number S166573), (see Lodged Doc.
4
No. 2) which was denied on October 16, 2008. See Lodged Doc. No. 3.
1
2
(7)
On December 17, 2008, petitioner filed a petition for writ of habeas corpus
3
in Sacramento County Superior Court (docket no. 08F10306). See Lodged
4
Doc. No. 10. Among other things, petitioner alleged that the trial court
5
abused its discretion in not sentencing petitioner to probation, and in
6
allowing testimony regarding incidents of domestic violence between
7
petitioner and the victim’s mother. On February 5, 2009, the Superior
8
Court found that this petition was successive, because the third petition
9
challenging the judgment, Case No. 07F06036, was denied on its merits.
10
See Lodged Doc. No. 11. The Superior Court found that each of
11
petitioner’s claims were procedurally barred, and, in the alternative, that
12
petitioner failed to make a prima facie showing for relief.
13
(8)
On March 12, 2009, petitioner filed a petition for writ of habeas corpus in
14
the Court of Appeal, Third Appellate District (docket no. C061287). See
15
Lodged Doc. No. 54. Petitioner argued that the Superior Court erred in
16
finding his most recent habeas petition successive because the Superior
17
Court had lacked jurisdiction to review his prior habeas petitions, filed
18
while his direct appeal was still pending. He additionally argued, among
19
other things, that his sentence was unconstitutional because the trial court
20
failed to sentence him to probation when he was eligible for it. On April
21
2, 2009, the Court of Appeal denied the petition as successive, citing
22
People v. Kim, 45 Cal. 4th 1078, 1101 (2009) (piecemeal presentation of
23
known claims is prohibited) and In re Clark, 5 Cal. 4th 750, 777 (1993)
24
(same). See Lodged Doc. No. 55.
25
26
(9)
On April 13, 2009, petitioner filed a petition for writ of habeas corpus in
5
1
Sacramento County Superior Court (docket no. 09F03042). See Lodged
2
Doc. No. 12. Petitioner alleged that the Superior Court’s three prior
3
decisions, denying his prior habeas petitions on the ground that his appeal
4
was pending, were void judgments, and asked that the Superior Court
5
“clarify this matter regarding any procedural bar....” Petitioner
6
additionally argued that the trial court abused its discretion in not
7
sentencing petitioner to probation, and that his trial counsel was
8
ineffective. On May 28, 2009, the Superior Court denied the petition,
9
finding that it was his fifth challenging the criminal judgment and that it
10
was successive. See Lodged Doc. No. 13. The Superior Court
11
additionally found that there was no merit in petitioner’s sentencing or
12
counsel claims.
13
(10)
On June 12, 2009, petitioner filed a petition for writ of habeas corpus in
14
the Court of Appeal, Third Appellate District (docket no. C062079). See
15
Lodged Doc. No. 56. Petitioner alleged that the trial court “acted in excess
16
of its jurisdiction,” and asks to be re-sentenced. He claims that he only
17
became aware of the grounds for re-sentencing after the trial court denied
18
his first three petitions. On June 18, 2009, the Court of Appeal denied the
19
petition as successive, citing to In re Clark, supra. See Lodged Doc. No.
20
57.
21
(11)
On July 15, 2009 and July 21, 2009, petitioner filed motions for
22
modification of his sentence in his original criminal case. See Lodged
23
Doc. Nos. 14 and 15. Each motion was a one-page form. Petitioner did
24
not give any grounds in support of the application. The motions were
25
denied in minute orders by Judge Savage on July 21, 2009 and on August
26
6
4, 2009. See Lodged Doc. Nos. 16 and 17.
1
2
(12)
On August 28, 2009, petitioner filed a petition for writ of mandate or
3
prohibition with the Court of Appeal, Third Appellate District (docket no.
4
C062771), seeking to overturn his sentence because, he argued, the trial
5
court unconstitutionally enhanced his sentence in violation of Cunningham
6
v. California, 127 S. Ct. 856, 549 U.S. 270 (2007). See Lodged Doc. No.
7
58. He again argues that the trial court abused its discretion in not
8
sentencing him to probation. On September 3, 2009, the Court of Appeal
9
denied the petition. See Lodged Doc. No. 59.
10
(13)
On September 24, 2009, petitioner filed a petition for writ of mandate or
11
prohibition with the Court of Appeal, Third Appellate District (docket no.
12
C063009), raising again the Cunningham sentencing argument he had
13
raised in his August 28, 2009 petition. See Lodged Doc. No. 60. On
14
October 8, 2009, the Court of Appeal denied the petition. See Lodged
15
Doc. No. 61.
16
(14)
On October 13, 2009, petitioner filed a petition for writ of mandamus in
17
the Court of Appeal, Third Appellate District (docket no. C063172),
18
alleging errors in his original sentence, and in his amended sentence. See
19
Lodged Doc. No. 62. In particular, petitioner claimed that he was not
20
present at his re-sentencing hearing, and that his sentence violated
21
Cunningham, supra. On November 12, 2009, the Court of Appeal denied
22
the petition. See Lodged Doc. No. 63.
23
(15)
On December 22, 2009, petitioner filed a petition for writ of mandate or
24
prohibition with the Sacramento County Superior Court (docket number
25
34-2009-80000409), alleging that his original sentence and amended
26
7
1
sentence were illegal because, among other things, the record does not
2
support an upper-term sentence. Petitioner also argues that his due process
3
rights were violated because he was not present at the re-sentencing
4
hearing. See Lodged Doc. No. 18. The Superior Court construed the
5
mandamus as a habeas petition (see Lodged Doc. No. 19), and, on March
6
2, 2010, denied it (see Lodged Doc. No. 20), finding it successive and
7
untimely, and additionally finding no merit to the claims. In particular, the
8
Superior Court noted that there was no Cunningham error, because
9
petitioner’s prior convictions were sufficient “aggravating factors” in
support of an upper-term sentence.
10
11
(16)
On March 15, 2010, petitioner filed a petition for writ of habeas corpus in
12
the Sacramento County Superior Court (docket no. 10F01858). See
13
Lodged Doc. No. 21. Petitioner had initiated an administrative proceeding
14
at his prison, claiming that his sentence was not valid and asking the
15
prison to recall the sentence. The prison denied his claims, explaining that
16
the records reflected that he was sentenced legally. On April 19, 2010, the
17
Superior Court denied petitioner’s petition, which it described as an effort
18
by petitioner to obtain “a court order, on habeas corpus, that the
19
Department file with the court a recommendation for recall of the
20
sentence......because [petitioner] is not sentenced by the court or his
21
sentence is unlawful. This claim is utterly meritless.” See Lodged Doc.
22
No. 22.
23
(17)
On April 6, 2010, petitioner filed a petition for writ of habeas corpus in the
24
Amador County Superior Court (docket no. 10-HC-1259), alleging that the
25
trial court abused its discretion in not sentencing him to probation, and
26
8
1
also violated his due process rights in not having him present during re-
2
sentencing. See Lodged Doc. No. 23. On April 23, 2010, Amador County
3
Superior Court transferred the petition to Sacramento County (see Lodged
4
Doc. Nos. 24, 25, 26).
5
(18)
On April 12, 2010, petitioner filed a petition for writ of habeas corpus in
6
the Amador County Superior Court (docket no. 10-HC-1262), alleging,
7
among other things, that his sentence is illegal under Cunningham and that
8
he should have been sentenced to probation. See Lodged Doc. No. 27. On
9
April 26, 2010, Amador County transferred the petition to Sacramento
County. See Lodged Doc. Nos. 28, 29, 30, 31.
10
11
(19)
On May 17, 2010, petitioner filed a letter addressed to Judge Kenny of the
12
Sacramento County Superior Court, which appears to seek reconsideration
13
of the court’s March 2, 2010 order. See Lodged Doc. No. 34. Petitioner
14
wrote that he addressed his motion to Judge Kenny, since Judge Kenny
15
had construed petitioner’s December 22, 2009 mandamus petition as one
16
for a writ of habeas corpus.
17
(20)
On May 17, 2010, the Sacramento County Superior Court issued an order
18
denying the May 17, 2010 motion for reconsideration, as well as the two
19
petitions transferred from Amador County. The trial court noted:
20
21
22
23
As petitioner was warned in the court’s denial order [dated March
2, 2010], petitioner is now engaging in a gross abuse of the writ
process that is now progressing to a new stage in which petitioner
is seeking relief from other trial courts from his judgment from this
court. That petitioner cannot do. As petitioner is raising no new
issue and has been repeatedly turned down in his requests for
probation and modification of sentence, his is grossly abusing the
writ process.
24
25
26
Lodged Doc. No. 35.
9
1
(21)
On June 8, 2010, petitioner filed a petition for writ of habeas corpus with
2
the Amador County Superior Court (docket no. 10-HC-1293), alleging that
3
the warden of Mule Creek State Prison had unlawfully accepted and
4
surrendered petitioner into custody because petitioner’s commitment order
5
is not authorized by any provisions of law. See Lodged Doc. No. 37.
6
Petitioner additionally moved the Amador County Court that it retain
7
jurisdiction over the petition since the Amador court had previously
8
transferred prior petitions to Sacramento County, but that Sacramento had
9
“defaulted.” On June 24, 2010, Amador County Judge Harlan denied the
10
petition for failure to establish a prima facie case for relief, citing In re
11
Duvall, 9 Cal. 4th 464, 474-75 (1995). See Lodged Doc. No. 38.
12
(22)
On June 28, 2010, petitioner filed a petition for writ of habeas corpus in
13
Sacramento County Superior Court (docket no. 10F04420), alleging that
14
Warden Michael Martel had unlawfully accepted and surrendered
15
petitioner into custody. See Lodged Doc. No. 41. On July 19, 2010,
16
Judge Roman of the Sacramento County Superior Court denied the
17
petition, finding that the petition was untimely and successive. The
18
Sacramento court noted that this was petitioner’s ninth habeas petition
19
challenging his criminal judgment, adding:
20
21
22
23
24
25
26
[g]enerally, a defendant convicted of a felony has but one
opportunity to bring a habeas corpus petition before a California
court. Once that opportunity has been exhausted, future claims on
habeas will not be cognizable at all, unless the claims meet the
Robbins/Clark bar. In the absence of an extraordinary reason for
not bringing a successive claim in an earlier petition, it is a gross
abuse of the writ process to file endless, unsubstantiated,
frivolous, piecemeal new petitions, such as this one, with this court
that are barred under Robbins/Clark.
Lodged Doc. No. 42.
10
1
(23)
On July 12, 2010, petitioner filed a petition for writ of mandate or
2
prohibition in Amador County Superior Court (docket no. 10cv6782),
3
alleging that Sacramento County Judge Kenny had previously granted his
4
prior petition for writ of mandamus. See Lodged Doc. No. 43. He
5
additionally argued that Amador County’s prior transfer orders were
6
actually orders granting habeas relief. Petitioner additionally argued that
7
his sentence was illegal. On August 5, 2010, Amador County deemed the
8
petition to be one for habeas relief (see Lodged Doc. No. 44), and, on
9
August 24, 2010, denied it for failure to state a prima facie case for relief.
See Lodged Doc. No. 50.
10
11
(24)
On July 14, 2010, petitioner filed a writ of mandate or prohibition in
12
Sacramento County Superior Court (docket no. 10F05222). See Lodged
13
Doc. No. 45. The petition is identical to the one filed in Amador County
14
on July 12, 2010. On September 13, 2010, the Sacramento County
15
Superior Court denied the petition. See Lodged Doc. No. 46.
16
(25)
On July 21, 2010, petitioner filed a petition for writ of mandate or
17
prohibition in the Court of Appeal, Third Appellate District (docket no.
18
C065586), also identical to the one filed on July 12, 2010 in Amador
19
County. See Lodged Doc. No. 64. On July 29, 2010, the Court of Appeal
20
denied the petition. See Lodged Doc. No. 65.
21
(26)
On December 27, 2010, petitioner filed in this court a Complaint under the
22
Civil Rights Act, 42 U.S.C. § 1983, against Allison Dunham, from the
23
Sacramento District Attorney’s Office, and M. Martel, Warden of Mule
24
Creek State Prison. See Doc. No. 1. On January 10, 2011, this court
25
ordered that the complaint be construed as a petition for writ of habeas
26
11
1
corpus filed pursuant to 28 U.S.C. § 2254. See Doc. No. 6. On May 11,
2
2011, respondents moved to dismiss the petition. See Doc. No. 36. It is
3
this motion which is currently before the court.
4
THE CURRENT PETITION
Petitioner now proceeds on the petition described supra. See Doc. No. 1.3 For
5
6
relief, he appears to seek dismissal of his criminal conviction. See Doc. 1, page 3. As grounds,
7
petitioner appears to allege that: (1) his 2008 re-sentencing hearing violated his due process
8
rights, because he was not present at the hearing; (2) the sentencing judge acted in excess of his
9
jurisdiction by imposing an illegal sentence; (3) the sentencing judge faxed a false commitment
10
document to the California Department of Corrections, which was false because it read that
11
petitioner was present at the re-sentencing hearing when he was not; (4) the California
12
Department of Corrections accepted the false documentation, and then aided and abetted the
13
sentencing judge’s deliberate falsification by altering their file information to give the
14
“appearance” that petitioner was at the re-sentencing hearing; (5) Sacramento County Superior
15
Court Judges Roman, Connelly, and Earl illegally barred petitioner from remedying these errors
16
by applying the wrong legal principals; and (6) the district attorney has failed to respond to the
17
“60 Day Action Order” issued by Sacramento County Judge Connelly on January 28, 2010. See
18
id.
19
\\\\
20
21
3
25
On May 18, 2011, petitioner filed a “Complaint” pursuant to 28 U.S.C. § 1651. The
Complaint is one page, and attached to it as Exhibit A is a Motion to Dismiss for Failure to
Prosecute, which appears to be a motion to dismiss the underlying criminal conviction. The
undersigned denied similar Motions to Dismiss on May 3, 2011 and July 14, 2011. Respondent has
moved for dismissal of the Complaint, in the event the court considers it to be an amended habeas
petition. See Doc. No. 46. Because the undersigned previously denied similar motions filed by the
petitioner, the undersigned will instead recommend that the court construe the Complaint as another
motion to dismiss the underlying conviction, and deny it for the reasons cited in the undersigned’s
May 3, 2011 and July 14, 2011 orders.
26
12
22
23
24
Petitioner claims that Judge Connelly “issued my writ of mandate as a habeas
1
2
corpus granting review of and 60 day action order to District Attorney Allison Dunham....” and
3
that respondent has now exceeded the 60 days requirement, resulting in a failure to prosecute.
4
See Doc. No. 1 at 3, 6-7, 9-10, 22. Petitioner appears to allege that Sacramento County Judge
5
Connelly’s January 28, 2010 order, which construed the petition for writ of mandate as a petition
6
for writ of habeas corpus, created an obligation for the District Attorney to correct what
7
petitioner considers to be an error in his sentence, and that the District Attorney’s “failure to
8
prosecute in a timely manner” violates his due process and speedy trial rights, entitling him to
9
dismissal of the criminal case. See Doc. No. 1 at 22. In support, petitioner argues that the
10
District Attorney bears the complete burden to correct errors of law, or to notify the courts of
11
errors. See id. Petitioner appears to allege that, once the trial court served “the prosecuting
12
attorney (D.A.) in any case for preliminary examination for case review, under Penal Code 1382
13
the D.A. has 60 days to bring defendant to resentencing.” See id.
Petitioner also alleges that he received ineffective assistance of trial and appellate
14
15
counsel. In support, petitioner argues that the “sentence itself is more than enough evidence to
16
support the fact that [trial counsel] intentionally denied petitioner a fundamentally fair
17
representation,” that counsel supported the trial court’s unethical and illegal operation in excess
18
of its jurisdiction, and that counsel never objected to the disproportionate sentence. See Doc. No.
19
1 at 16.
20
Petitioner argues that appellate counsel was also ineffective, that she also
21
supported the trial court’s illegal procedures, and that she supported the violation of petitioner’s
22
right to be present at re-sentencing. Id.
23
THE MOTION TO DISMISS
24
25
26
Respondent now moves to dismiss this habeas petition, arguing that it is untimely
filed or, in the alternative, that the claims raised by petitioner are not exhausted. Petitioner
13
1
opposes the motion, restating his arguments that the criminal judgment is void, that his
2
constitutional rights were violated when he was not allowed to be present at re-sentencing, and
3
that, pursuant to California Department of Corrections policy, he is entitled to release because the
4
prosecutor failed to prosecute Judge Connelly’s “60 day action order” in a timely manner.
5
Timeliness
6
Unlike the usual case involving the AEDPA limitations statute in which the
7
petitioner has slept on his issues, petitioner herein was abusively diligent, both before and after
8
the finality of his conviction for AEDPA purposes. However, this pseudo-diligence does not
9
save this petition from being found untimely.
Respondent argues that petitioner’s habeas petition was due on January 14, 2010,
10
11
and is late, because it was not filed until December 27, 2010. Respondent acknowledges that
12
petitioner is entitled to toll any time when he had a “properly filed” petition pending in the state
13
court. Giving petitioner credit for time when arguably “properly filed” petitions were pending,
14
respondent argues that petitioner’s federal petition was due no later than March 4, 2010.
15
Respondent argues that any state petitions filed after that date cannot toll the deadline.
In opposition, petitioner appears to argue that, under relevant California law for
16
17
non-capital cases, there is no standard by which the court can determine if there has been a
18
substantial delay, and that denial of his numerous writs in the state court based on this “wrong
19
legal principle was inappropriate and violated petitioner’s 14th amend. rights.” See Doc. No. 38,
20
p. 6.
21
Exhaustion
22
Respondent alternatively argues that petitioner has failed to exhaust his current
23
arguments in the state court, and that the arguments raised by petitioner appear to be based on
24
events that occurred after petitioner’s petition for review was denied at the state Supreme Court.
25
\\\\
26
14
In his opposition, petitioner does not address the exhaustion arguments raised by
1
2
respondent.
3
RELEVANT AUTHORITY
4
Timeliness
5
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28
6
U.S.C. § 2244(d)(1)(A), a federal petition for writ of habeas corpus ordinarily must be filed
7
within one year after the state court judgment becomes final by the conclusion of direct review of
8
the expiration of the time to seek direct review. E.g., Porter v. Ollison, 620 F.3d 952, 958 (9th
9
Cir. 2010). The time during which a properly filed application for state post-conviction or
10
collateral review (including California habeas proceedings) is pending does not count toward this
11
one-year period. Id., citing 28 U.S.C. § 2244(d)(2).
12
However, a petition filed before completion of direct review, or one filed after the
13
expiration of the statute of limitations, does not operate to effect the petitioner’s available time at
14
all. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2005) (“pre-finality” petitions); Jiminez v.
15
Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949, 123 S. Ct. 1627 (2003)
16
(applications for state post-conviction relief do not toll statute of limitations if filed after statute
17
of limitations has expired).
18
The relevant considerations for this petition are (1) whether petitioner’s many
19
state court collateral petitions and motions were “properly filed,” and, if so, (2) during what
20
periods were they “pending”?
21
“Properly Filed”
22
An application is “properly filed” when its delivery and acceptance are in
23
compliance with the applicable laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8,
24
121 S. Ct. 361, 364 (2000). This question is distinct from whether the claims considered in the
25
application are meritorious and free of procedural bar. Id. (identifying distinction between
26
15
1
condition to filing and condition to obtaining relief).
Untimely petitions are not properly filed. Pace v. DiGuglielmo, 544 U.S. 408,
2
3
417, 125 S. Ct. 1807, 1814 (2005) (where state court rejects petition as untimely, it was not
4
“properly filed” and petitioner is not entitled to statutory tolling), Carey v. Saffold, 536 U.S. 214,
5
225-26, 122 S. Ct. 2134, 2141 (2002) (if state court rules that petition is untimely, that is “the
6
end of the matter,” regardless of whether state court also addressed merits of the claims, or
7
whether timeliness ruling was “entangled” with the merits). Under California state law, a
8
successive petition presenting additional claims that could have been presented in an earlier
9
collateral petition is, of necessity, a “delayed petition.” See In re Clark, 5 Cal. 4th at 770.4
At least one court in this district has found that the Clark bar extends to successive
10
11
petitions where petitioner does not raise any new claims:
The California Supreme Court’s reasons for finding a successive petition
raising new claims to be untimely is equally applicable to a successive
petition raising identical claims. There is no indication in Clark that the
California Supreme Court meant to find that successive duplicative
petition was timely, whereas a successive petition raising new claims was
not.
12
13
14
15
16
See Chance v. Martell, 2011 U.S. Dist. LEXIS 103235 *13-14 (Sept. 13, 2011) (Newman, M.J.)
17
(discussing whether Clark barred tolling for interval between first and second, successive
18
petition).
19
“Pending”
20
Collateral review is considered to be “pending” during the interim between a writ
21
being denied at one court level and a new petition being filed at the next highest court level as
22
long as the petition at the next level is filed within a reasonable period of time. Carey v.
23
4
25
There is no California rule outside of case law which prohibits the filing of a successive
petition, though such a petition may be procedurally barred. Cf. 28 U.S.C. § 2244(a), (b) (petitioner
seeking to file successive petition in federal district court must first obtain authorization from the
Court of Appeals) with Cal. Rules of Court R. 4.551 and Cal. Penal Code § 1474.
26
16
24
1
Scaffold, 536 U.S. at 222-25, 122 S. Ct. at 2139-2141.
2
If the time to file a federal petition has not already expired when a second round
3
of properly filed California habeas petitions begins, the second round of petitions will also toll
4
the § 2244(d)(1) period. See Porter v. Ollison, 620 F.3d at 952 (“For tolling to be applied based
5
on a second round [of petitions filed in the state court], the petition cannot be untimely or an
6
improper successive petition.”). However, the interval between the two rounds is not tolled. Id.
7
Additionally, according to the Porter decision, a second round will not toll the AEDPA deadline
8
if the second petition is “untimely or an improper successive petition.” See id., citing Townsend
9
v. Knowles, 562 F.3d 1200, 1205 (9th Cir.), cert. denied, 130 S. Ct 193 (2009) (untimely state
10
court petition not properly filed).
The Ninth Circuit has also answered whether a petitioner may be entitled to
11
12
interval tolling between two Superior Court petitions, finding that where a petitioner elects to
13
begin a second round of petitions in the Superior Court before completing a full round of review
14
through the highest available state court, petitioner may be entitled to interval tolling between the
15
first and second Superior Court petitions if the second petition is timely, and “the successive
16
petition was attempting to correct deficiencies of a prior petition,” because the petitioner “is still
17
making proper use of state court procedures and habeas review is still pending.” See Banjo v.
18
Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010).
19
ANALYSIS
Under the chronology outlined above, petitioner’s petition for review was denied
20
21
in the California Supreme Court on October 16, 2008, and the time to seek direct review ended
22
on January 14, 2009, when his 90-day period to file a petition for writ of certiorari with the
23
United States Supreme Court ended. Petitioner thereafter had one year in which to file his
24
federal petition, beginning January 15, 2009, and ending one year later, on January 14, 2010.
25
\\\\
26
17
Petitioner, however, did not file his federal petition until December 27, 2010,
1
2
some 348 days afterwards, and so it is untimely unless he is entitled to toll the deadline.
The undersigned finds that petition is not entitled to tolling under 28 U.S.C.
3
4
§ 2244(d)(2):
– The petitions filed January 17, 2007; May 3, 2007; June 13, 2007; and June 18,
5
6
2007, should have no effect on the petitioner’s statute of limitations, as they were filed prior to
7
completion of direct review. See Waldrip v. Hall, 548 F.3d at 735.
– The petitions filed December 17, 2008, March 12, 2009, April 13, 2009, June
8
9
12, 2009, and December 22, 2009, were denied as successive, and were therefore untimely under
10
California law. See In re Clark, 5 Cal. 4th at 770. As untimely petitions, they were not properly
11
filed. See Pace v. DiGuglielmo, 544 U.S. at 417.
– The motions for modification of sentence, filed July 15, 2009 and July 21, 2009,
12
13
were filed with the Superior Court nine (9) months after the state Supreme Court denied review
14
of petitioner’s judgment and sentence, and more than eight (8) months after the Superior Court
15
entered the amended judgment and sentence. Pursuant to California Penal Code section 1170,
16
the superior court may, within 120 days of the date of commitment, recall a sentence and
17
commitment previously ordered and re-sentence the prisoner. After that time period, the
18
sentencing court does not have jurisdiction to vacate or to modify the sentence. See Dix v.
19
Superior Court, 53 Cal. 3d. 442, 464 (1991); People v. Lockridge, 12 Cal. App. 4th 1752, 1757
20
(1993). The motions are accordingly not “properly filed,” because the court in which petitioner
21
filed them lacked jurisdiction to provide the relief requested. See Blair v. Crawford, 275 F.3d
22
1156, 1158 (9th Cir. 2002), citing Artuz v. Bennett, 531 U.S. at 9, 121 S. Ct. at 364 (“If, for
23
example, an application is erroneously accepted by the clerk of a court lacking jurisdiction....it
24
will be pending, but not properly filed.”)(emphasis in original).
25
\\\\
26
18
1
– The mandamus petitions filed August 28, 2009, September 24, 2009, and
2
October 13, 2009 were untimely, since they were filed at least ten months after entry of the
3
judgment. See People v. Superior Court (Brent), 2 Cal. App. 4th 675, 682 (1992) (“Where there
4
is otherwise no statutory authority or time limit in filing a writ, it must usually be filed within 60
5
days”).
– The petitions and motions filed March 15, 2010; April 6, 2010; April 12, 2010;
6
7
May 17, 2010; June 8, 2010; June 28, 2010; July 12, 2010; July 14, 2010; and July 21, 2010,
8
were filed after January 15, 2010, when the statute of limitations expired. They do not affect
9
tolling. See Jiminez v. Rice, 276 F.3d at 482.
Because the petition was not timely filed, the undersigned does not reach
10
11
respondent’s alternative argument that petitioner failed to exhaust his arguments in state court.
The undersigned additionally recommends that the remaining motions be denied
12
13
as moot.
14
Accordingly, IT IS HEREBY RECOMMENDED that:
15
1.
GRANTED.
16
17
The respondent’s motion to dismiss (Doc. No. 36) the petition be
2.
The Complaint filed May 5, 2011 (Doc. No. 39) be construed as a motion
18
to dismiss the underlying criminal conviction, and, so construed, be
19
DENIED.
20
3.
All other motions (Doc Nos. 46, 48, 56 and 58) be DENIED as moot.
21
These findings and recommendations are submitted to the United States District
22
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
23
days after being served with these findings and recommendations, any party may file written
24
objections with the court and serve a copy on all parties. Such a document should be captioned
25
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
26
19
1
shall be served and filed within fourteen days after service of the objections. The parties are
2
advised that failure to file objections within the specified time may waive the right to appeal the
3
District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
If petitioner files objections, he shall also address if a certificate of appealability
4
5
should issue and, if so, as to which issues. A certificate of appealability may issue under 28
6
U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
7
constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate
8
which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).
9
DATED: November 17, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
10
11
12
GGH:rb
ston3454.fr
13
14
15
16
17
18
19
20
21
22
23
24
25
26
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?