Robinson v. Lewis

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/9/2020 RECOMMENDING 13 Motion to Dismiss be denied; Claim 6 of 1 Petition be deemed voluntarily dismissed; and this case proceed on the 5 remaining exhausted claims. Referred to Judge William B. Shubb. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JULIUS M. ROBINSON,

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No. 2:13-cv-0604 WBS AC P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

G.W. LEWIS,

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Respondent.

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Petitioner, a state prisoner proceeding with counsel, brought a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 on March 28, 2013. ECF No. 1. Following the

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Ninth Circuit’s mandate in this action (ECF No. 43), respondent’s motion to dismiss petitioner’s

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petition (ECF No. 13) is again before this court. For the reasons set forth below, this court

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recommends that respondent’s motion to dismiss be DENIED.

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I.

Background

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In March 2013 petitioner filed a petition for writ of habeas corpus with six claims for

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relief. ECF No. 1. On June 5, 2013, respondent filed a motion to dismiss the petition, arguing

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that (1) the petition was filed after the statute of limitations had expired, and (2) claim six of the

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petition was unexhausted. ECF No. 13. Relating to the exhaustion issue, respondent argues that

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because the claim was not presented to the California Supreme Court, the instant petition is mixed

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and thus petitioner must either delete the claim and proceed only with claims actually presented to

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the California Supreme Court, or the entire petition must be dismissed. ECF No. 13 at 8. In his

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opposition, petitioner conceded that respondent was correct, and moved the court to “delete claim
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six . . . and proceed with properly exhausted claims to the state court.” ECF No. 17 at 8.
In October 2013, the undersigned recommended respondent’s motion to dismiss be

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granted on timeliness grounds. ECF No. 29. This court determined that the statute of limitations

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for this habeas petition commenced on August 9, 2011, and expired one year later, on August 9,

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2020, absent any statutory tolling. Id. at 4. The court further determined that the statute of

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limitations was tolled on November 12, 2011, based on the proof of service date in the habeas

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corpus petition filed in the Sacramento Superior Court. Id. at 4. That petition was denied on

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January 19, 2012, and petitioner did not file his next state habeas corpus petition until 66 days

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later, on March 26, 2012. Id. at 5. Citing precedent directing lower courts to independently

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determine whether a petitioner’s second and third state habeas corpus petitions were filed within

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what California would consider a “reasonable time,” this court determined that this 66-day gap

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was not entitled to tolling. Id. at 6-7. The court also determined that a 91-day interval, not at

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issue here, was not entitled to tolling, and due to these two denials the court concluded that the

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petition was untimely filed by 25 days. Id. at 8.

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The District Judge adopted the findings and recommendations, (ECF No. 34), and

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petitioner appealed (ECF No. 36). Because the findings and recommendations rested on the

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statute of limitations issue, the court did not make any findings with regard to respondent’s

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argument that petitioner has not fully exhausted one of his claims. See ECF No. 29.

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II.

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On January 21, 2014, petitioner filed a notice of appeal (ECF No. 36), and on August

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24, 2020, the Ninth Circuit reversed the court’s finding that petitioner was barred from bringing

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this petition due to the statute of limitations (ECF No. 42).

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Ninth Circuit Decision

Under AEDPA, “[a] 1-year period of limitation shall apply to an application for a writ

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of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. §

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2244(d)(1). “The time during which a properly filed application for State post-conviction or other

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collateral review with respect to the pertinent judgment or claim is pending shall not be counted

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toward [this] period of limitation.” 28 U.S.C. § 2244(d)(2). In determining timeliness of habeas

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petitions, California, unlike other states which specify precise time limits, applies a
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“reasonableness” standard. ECF No. 42 at 3 (citing Carey v. Saffold, 536 U.S. 214, 223 (2002)).

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In determining reasonableness, “the days between (1) the time the lower state court reached the

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adverse decision, and (2) the day he filed a petition in the higher state court” are “pending” for

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purposes of 28 U.S.C. § 2244(d)(2) and therefore “add[ed] to the 1-year time limit.” Id. (quoting

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Carey, 536 U.S. at 222-23.

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In determining whether the 66-day delay at issue was reasonable, the Ninth Circuit

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certified the question to the California Supreme Court (ECF No. 42 at 4), which explained that “a

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66-day gap between the denial of a petition in the superior court and the filing of a new petition in

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the Court of Appeal would not be considered substantial delay. It would not make any claim

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raised in the petition untimely if the petitioner had otherwise presented that claim without

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substantial delay,” Robinson v. Lewis, 9 Cal. 5th 883, 891 (2020). Following the California

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Supreme Court’s answer, the Ninth Circuit determined that “this 66-day interval is not a

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substantial delay,” and reversed and remanded proceedings consistent with this finding. ECF No.

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42 at 7.

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III.

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Respondent’s motion seeks to dismiss petitioner’s petition on the grounds that (1) the

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petition was filed after the statute of limitations had expired, and (2) claim six of the petition was

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unexhausted. ECF No. 13. In light of the Ninth Circuit’s resolution of the timeliness issue in

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favor of petitioner, the undersigned recommends that respondent’s motion to dismiss on this basis

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be denied. Further, due to petitioner’s withdrawal of the unexhausted claim per ECF No. 17 at 6,

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Claim Six is deemed voluntarily dismissed. Accordingly, the undersigned recommends

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respondent’s motion to dismiss be denied in full.

Respondent’s Motion to Dismiss

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IV.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss (ECF No 13) be DENIED;

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2. Claim Six of petitioner’s petition be deemed voluntarily dismissed; and

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3. This case proceed on the five remaining exhausted claims.

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Conclusion

These findings and recommendations are submitted to the United States District Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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

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objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Failure to file objections within the specified time may waive

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

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DATED: October 9, 2020

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