Williams v. On Habeas Corpus

Filing 38

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/7/2013 RECOMMENDING that 26 Amended Motion to Dismiss be granted; RECOMMENDING that this action be closed; REFERRING this matter to Judge Lawrence K. Karlton; ORDERING that any objections be filed within fourteen days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO R. WILLIAMS,

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Petitioner,

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No. 2:12-cv-1588 LKK CKD P

v.

FINDINGS AND RECOMMENDATIONS

WARDEN, CALIFORNIA STATE
PRISON, LOS ANGELES COUNTY,
Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case proceeds on the amended petition

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filed April 15, 2013. (ECF No. 23 (“Ptn.”).) Before the court is respondent’s June 18, 2013

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motion to dismiss the petition as untimely filed. (ECF No. 26.) Petitioner has filed an opposition

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to the motion. (ECF No. 27.) For the reasons set forth below, the court will recommend that

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respondent’s motion be granted.
BACKGROUND

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On June 18, 2009, a jury found petitioner guilty of two counts of second degree murder

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(Cal. Penal Code § 187(a)1) and possession of a firearm by a felon (§ 12021(a)(1)). The jury also

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Subsequent statutory references are to the California Penal Code unless otherwise indicated.
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found true certain firearm enhancements (§§ 12022.53(b)-(d)). On August 28, 2009, the trial

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court sentenced petitioner to a prison term of forty years to life. (Ptn. at 2; ECF No. 26-1 at 5.)

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On January 21, 2011, the California Court of Appeal affirmed the judgment. (ECF No.

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26-1.) On March 3, 2011, petitioner filed a petition for review in the California Supreme Court,

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which was denied on April 13, 2011. (ECF Nos. 26-2, 26-3.)

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On August 31, 2011, petitioner filed a petition for writ of habeas corpus in the Northern

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District Court. (ECF No. 1.) The case was subsequently transferred to the Eastern District Court.

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(ECF No. 6.) On August 31, 2012, the undersigned screened the petition and recommended that

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it be summarily dismissed for failure to allege any violation of the Constitution or laws of the

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United States under 28 U.S.C. § 2254(a).2 (ECF No. 15.) Petitioner filed objections to the

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findings and recommendations and was granted permission to file an amended petition. (ECF

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Nos. 16, 17.)

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On January 17, 2013, petitioner filed his first amended petition. (ECF No. 18.) On

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February 1, 2013, the undersigned determined that petitioner had filed a mixed petition and

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directed him to either request a stay or file a second amended petition presenting only

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unexhausted claims. (ECF No. 19.) Petitioner requested a stay, but the undersigned found that

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petitioner had not made the required showing for a stay pursuant to Rhines v. Weber, 544 U.S.

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269 (2005), and directed petitioner to file an amended petition containing only exhausted claims.

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(ECF No. 21.)
On April 15, 2013, petitioner filed the operative second amended petition.3 In screening

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this petition, the undersigned wrote:

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As recounted in the screening order: “In Ground One in his federal habeas petition, [petitioner]
has written ‘2nd Degree Murder,’ with the following supporting facts: ‘Shearell Dillon died from
a gunshot wound to the chest. Before dying, Shearell Dillon said the shot to her chest was by
accident.’ As Ground Two, petitioner writes: ‘Second Degree Murder of a Fetus,’ with the
following supporting facts: ‘Shearell Dillon was 4 months pregnant with my child.’ As Ground
Three, petitioner writes: ‘25 to life gun enhancement,’ with the following supporting facts: ‘A
firearm was discharged in a murder.’” (ECF No. 15, citing ECF No. 1.)
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As petitioner signed but did not date the second amended petition, the court cannot apply the
mailbox rule, i.e., construe the petition as filed upon signing. (ECF No. 23 at 10.)
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While the amended petition is disorganized and appears to contain
extraneous material, the court construes it to raise three claims:
prosecutorial misconduct; trial court error in refusing to answer a
juror’s question during deliberation; and trial court error in
admitting statements made by petitioner during a custodial
interrogation. Petitioner asserts that these alleged errors violated
his federal right to due process. He indicates that these three claims
were exhausted in the California Supreme Court.

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(ECF No. 24 at 2 (record citations omitted).) Respondent filed the instant motion to dismiss in

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response to this petition. (ECF No. 26.)
STATUTE OF LIMITATIONS UNDER THE AEDPA

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Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and

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Effective Death Penalty Act of 1996 (“AEDPA”) are applicable. See Lindh v. Murphy, 521 U.S.

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320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a

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one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244

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provides as follows:

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(d)(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 –

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(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;

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(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;

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(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

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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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(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.

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The AEDPA statute of limitations is tolled during the time a properly filed application for

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post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). The statute of limitations

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is not tolled during the interval between the date on which a decision becomes final and the date

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on which the petitioner files his first state collateral challenge. Nino v. Galaza, 183 F.3d 1003,

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1006 (9th Cir. 1999). Once state collateral proceedings are commenced, a state habeas petition is

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“pending” during a full round of review in the state courts, including the time between a lower

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court decision and the filing of a new petition in a higher court, as long as the intervals between

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petitions are “reasonable.” See Evans v. Chavis, 546 U.S. 189, 192 (2006); Carey v. Saffold, 536

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U.S. 214, 222-24 (2002).

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ANALYSIS
I. Commencement of the Running of the Limitation Period
Under § 2244(d)(1)(A), the limitation period begins to run on “the date on which the

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judgment became final by the conclusion of direct review or the expiration of the time for seeking

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such review.” See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). The statute

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commences to run pursuant to § 2244(d)(1)(A) upon either 1) the conclusion of all direct criminal

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appeals in the state court system, followed by either the completion or denial of certiorari

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proceedings before the United States Supreme Court; or 2) if certiorari was not sought, then by

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the conclusion of all direct criminal appeals in the state court system followed by the expiration

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of the time permitted for filing a petition for writ of certiorari. Wixom, 264 F.3d at 897 (quoting

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Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.1998), cert. denied, 525 U.S. 1187 (1999)).

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Here, the California Supreme Court denied review of petitioner’s appeal on April 13,

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2011. The time to seek direct review ended on July 12, 2011, when the ninety-day period to file a

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petition for writ of certiorari with the United States Supreme Court expired. Rules of the

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Supreme Court of the United States, Rule 13.1. The one-year limitations period commenced the

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following day, July 13, 2011. 28 U.S.C. § 2244(d)(1); Fed. R. Civ. P. 6(a). Thus the last day to

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file a federal petition was July 12, 2012, plus any time for tolling.

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As set forth above, petitioner commenced this action by filing a federal habeas petition on
August 31, 2011. Had the case proceeded on this petition, AEDPA’s time bar would not have
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been an issue. However, petitioner did not file his first amended petition until January 17, 2013,

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and he did not file the operative second amended petition until April 19, 2013, more than nine

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months after the limitations period ended. In his motion, respondent contends that the instant

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petition is time-barred because its claims do not “relate back” to the original petition.

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II. Relation Back

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AEDPA’s limitation period may be tolled while a petitioner seeks relief in the state courts.

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Title 28 U.S.C. § 2244(d)(2) states that 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” the one-year limitation period. 28 U.S.C. § 2244(d)(2).

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However, the limitation period is not tolled for the time a federal habeas application is pending in

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federal court. Duncan v. Walker, 533 U.S. 167, 181-182 (2011). Thus, the question is whether

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the claims in the second amended petition “relate back” to those claims in the original petition,

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thus avoiding the harsh consequences of AEDPA’s statute of limitation.

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Under Rule 15(c)(2) of the Federal Rules of Civil Procedure, an amendment of a pleading

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relates back to the date of the original pleading when “the claim or defense asserted in the

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amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be

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set forth in the original pleading.” The rule applies in habeas corpus proceedings. Mayle v.

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Felix, 545 U.S. 644, 650 (2005); Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). In

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Mayle, the United States Supreme Court held that relation back is in order if the claim to be

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amended into the petition is tied to the original timely petition by “a common core of operative

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facts.” Mayle, 545 U.S. at 664. Conversely, the claim does not relate back when it asserts a new

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ground for relief supported by facts that differ in both “time and type” from those the original

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pleading set forth. Id. at 650. The Mayle court expressly rejected the Ninth Circuit’s

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interpretation of the rule that a claim relates back if it arises merely from the same judgment and

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conviction. Id. at 656–657. “An amended habeas petition does not relate back . . . when it

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asserts a new ground for relief supported by facts that differ in both time and type from those the

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original pleading set forth.” Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008) (quoting

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Mayle, 545 U.S. at 650).
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In Hebner, the Ninth Circuit applied the Mayle standard to a habeas petition. The court

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held that the prisoner’s amended claims regarding improper jury instructions violating his due

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process rights did not relate back to his original claim regarding the admission of a witness

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testimony violating his due process rights because the two events were “separated in time and

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type.” Hebner, 543 F.3d at 1138 (internal quotations omitted). The court explained that “the first

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claim focus[ed] on the admission of evidence . . . [while] the later claim [focused] on the

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instructions given to the jury, suggesting that they were separate occurrences.” Id. at 1139.

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Moreover, “courts generally have declined to find that a newly added claim related back
when the original claim involved similar issues but was based on actions taken by different

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people.” Whitehead v. Hedgpeth, 2013 WL 3967341, *5 (N.D. Cal. July 31, 2013) (collecting

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cases); see, e.g., Lopez v. Runnels, CIVS–03–0543 JAM DAD P, 2008 WL 2383952 (E.D. Cal.

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June 9, 2008) report and recommendation adopted, CIV S030543 JAM DAD P, 2008 WL

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3200856 (E.D. Cal. Aug. 7, 2008) aff’d, 495 Fed. Appx. 855, at *18–19 (9th Cir. 2012)

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(petitioner’s amended claim of ineffective counsel’s failure to interview witnesses who could

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corroborate his claim of innocence did not relate back to petitioner’s original claim of insufficient

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evidence to convict him since the original claim “stem[med] from the sufficiency of the evidence

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introduced at trial” while his amended claim “stem[med] from other distinct aspects of his trial

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and pre-trial proceedings.”). See also Morales v. Hedgpeth, No. 2:12-cv-0544 LKK KJN P, 2013

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WL 5425153, *2 (Sept. 27, 2013) (claims in amended petition did not “relate back” to original

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claim and thus were untimely absent equitable tolling).

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Here, the facts underlying the claims in the operative petition differ in “time and type”

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from the facts underlying the first petition, as the latter consisted of a list of petitioner’s

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conviction offenses and did not allege any claims whatsoever or set forth any legal theories. As

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the original petition in no way constituted notice of the instant claims, it cannot make the instant

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claims timely under the “relation back” doctrine.

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Opposing dismissal, petitioner argues that he was granted leave to file the amended

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petitions and is entitled to relief. (ECF No. 27.) However, the fact that petitioner was permitted

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to file one or more amended petitions does not, by itself, make the operative claims timely under
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AEDPA. Thus the court will recommend that respondent’s motion be granted.

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Accordingly, IT IS HEREBY RECOMMENDED THAT:

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1. Respondent’s amended motion to dismiss the petition for untimeliness (ECF No. 26)

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be granted; and

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2. This action be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 7, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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