Davis v. People of State of CA et al

Filing 21

ORDER signed by Magistrate Judge Craig M. Kellison on 10/16/2012 GRANTING respondents' 12 motion to dismiss; this action is DISMISSED; and the Clerk is to enter judgment and close this file. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWN TYRONE DAVIS,

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Petitioner,

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No. 2:12-CV-0181-CMK-P

vs.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA, et al.,

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Respondents.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this

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case is before the undersigned as the presiding judge for all purposes, including entry of final

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judgment. See 28 U.S.C. § 636(c). Pending before the court is respondents’ motion to dismiss

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the petition as untimely (Doc. 12).

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I. BACKGROUND
On June 25, 2007, petitioner was convicted of assault likely to produce great

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bodily injury and of dissuading a witness and was sentenced to 15 years in state prison.

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Petitioner’s conviction and sentence were affirmed by the California Court of Appeal on January

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8, 2009. The California Supreme Court declined direct review on March 18, 2009, and the time

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to seek review by the United States Supreme Court expired on June 16, 2009. Petitioner then

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filed two state habeas actions, as follows:

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First Petition

Filed February 23, 2009, in the Sacramento County
Superior Court; denied May 26, 2009.

Second Petition

Filed June 29, 2009, in the California Supreme Court;
denied November 19, 2009.

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II. DISCUSSION
Federal habeas corpus petitions must be filed within one year from the later of: (1)

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the date the state court judgment became final; (2) the date on which an impediment to filing

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created by state action is removed; (3) the date on which a constitutional right is newly-

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recognized and made retroactive on collateral review; or (4) the date on which the factual

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predicate of the claim could have been discovered through the exercise of due diligence. See 28

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U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court

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judgment becomes final by the conclusion of direct review or expiration of the time to seek direct

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review. See 28 U.S.C. § 2244(d)(1).

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Where a petition for review by the California Supreme Court is filed and no

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petition for certiorari is filed in the United States Supreme Court, the one-year limitations period

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begins running the day after expiration of the 90-day time within which to seek review by the

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United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

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Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year

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limitations period begins to run the day after certiorari is denied or the Court issued a merits
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decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for

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review by the California Supreme Court is filed, the conviction becomes final 40 days following

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the Court of Appeal’s decision, and the limitations period begins running the following day. See

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Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the

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conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the

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limitations period begins running the following day. If the conviction became final before April

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24, 1996 – the effective date of the statute of limitations – the one-year period begins to run the

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day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th

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Cir. 1999).

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The limitations period is tolled, however, for the time a properly filed application

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for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be

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“properly filed,” the application must be authorized by, and in compliance with, state law. See

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Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v.

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DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a

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state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions

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and the failure to comply with those time limits precludes a finding that the state petition is

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properly filed). A state court application for post-conviction relief is “pending”during all the

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time the petitioner is attempting, through proper use of state court procedures, to present his

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claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered

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“pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549

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U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari

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petition to the Supreme Court was pending). Where the petitioner unreasonably delays between

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state court applications, however, there is no tolling for that period of time. See Carey v. Saffold,

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536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as

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untimely, the federal court must independently determine whether there was undue delay. See id.

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at 226-27.
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There is no tolling for the interval of time between post-conviction applications

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where the petitioner is not moving to the next higher appellate level of review. See Nino, 183

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F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no

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tolling for the period between different sets of post-conviction applications. See Biggs v.

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Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct

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review and the filing of a state post-conviction application does not toll the limitations period.

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See Nino, 1983 F.3d at 1006-07.

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In this case, the one-year limitations period commenced on June 17, 2009 – the
day following expiration of the time to seek certiorari in the United States Supreme Court. The

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first state had no effect on the limitations period because it had not commenced as of the time the

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first petition was filed or resolved. Respondent concedes that the limitations period is tolled for

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the time the second state petition was pending (i.e., between the date it was filed and the date it

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was denied). Respondent argues that, with this period of tolling, the petition was due on or

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before November 7, 2010, and that the instant petition, which was filed on January 24, 2012, is

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untimely.

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The court agrees that the petition is untimely. Even assuming the best situation

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for petitioner – that the one-year limitations period did not begin until November 19, 2009, when

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his second state habeas petition was denied by the California Supreme Court, petitioner’s federal

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petition would have been due in November 2010. Because petitioner did not file his federal

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petition until January 2012, it is untimely even under the best case scenario for petitioner.

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In his opposition, petitioner argues that he is entitled to tolling for the period from
July 2009 through May 2011. Petitioner states:
. . . [O]n July 8, 2009, [petitioner] was compelled to transfer,
without his personal property or legal files, to California State Prison –
Sacramento (“Folsom”) where he remained for approximately one week
before being transported to the [Sacramento County Main Jail] by the U.S.
Marshall’s for prosecution in a federal matter currently pending before this
court. . . . Consequently, Petitioner contends he suffered a state-imposed
impediment beyond his control and he is therefor entitled to equitable
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tolling from July 8, 2009, through May 2011.

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In essence, petitioner claims that his transfer to the Sacramento County Main Jail,

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where he does not have access to his legal paperwork, entitles him to tolling due to a state-

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created impediment. See 28 U.S.C. § 2244(d)(1)(B). As respondents note, however, tolling is

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only available where the state impediment violates the constitution or laws of the United States.

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See Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1060 (9th Cir. 2007). Thus, in the context of

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petitioner’s claim that the state created an impediment by separating him from his legal materials,

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petitioner would have to show that such action denied him access to the courts. This petitioner

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cannot do because he cannot establish an actual injury. As indicated by documents attached to

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petitioner’s opposition, it is clear that he was able to contact various courts and state agencies,

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and to file prison grievances, despite the lack of access to his materials. Thus, there was no

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impediment that rose to the level of a constitutional violation. See Ramirez v. Yates, 571 F.3d

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993 (9th Cir. 2009).

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Respondents’ motion to dismiss (Doc. 21) is granted;

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This action is dismissed; and

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The Clerk of the Court is directed to enter judgment and close this file.

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DATED: October 16, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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