Lonick v. Neven

Filing 14

ORDER signed by Magistrate Judge Craig M. Kellison on 03/16/15 granting 12 Motion to Dismiss. Petitioner's petition is dismissed. No certificate of appealability shall issue in this case. The clerk of the court is directed to enter judgment and close this case. CASE CLOSED. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JEREMY ANTHONY LONICK,

12
13
14
15

Petitioner,
vs.

ORDER

DWIGHT NEVEN,
Respondent.

16
17

No. 2:13-cv-0768-CMK-P

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

18

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

19

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

20

judgment. See 28 U.S.C. § 636(c). Pending before the court is respondent’s unopposed motion

21

to dismiss (Doc. 12).

22

Respondent contends this court lacks jurisdiction as petitioner is not in custody on

23

the judgment his petition is challenging. In addition, respondent contends the petition is

24

untimely as filed beyond the statute of limitations, is fully unexhausted, and petitioner’s attempts

25

to avoid the statute of limitations under the All Writs Act is ineffective. The court, similarly

26

construing petitioner’s petition as a petition for writ of habeas corpus, agrees with respondent’s
1

1

contentions.

2

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to

3

dismiss a petition if it “plainly appears from the petition and any attached exhibits that the

4

petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing

5

Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in

6

lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being

7

in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th

8

Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state

9

remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural

10

grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp.

11

1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss

12

after the court orders a response, and the Court should use Rule 4 standards to review the motion.

13

See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has

14

exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

15

The basic scope of habeas corpus is prescribed by statute. Specifically, the United

16

States Code provides that habeas corpus shall not extend to a prisoner unless he is “in custody in

17

violation of the Constitution.” 28 U.S.C. § 2241(c). 28 U.S.C. § 2254(a) states:

18

The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to a judgment of a State
court only on the ground that he is in custody in violation of the
constitution or laws or treaties of the United States.

19
20
21

(emphasis added). See also, Rule 1 to the Rules Governing Section 2254 Cases in the United

22

States District Court. The Supreme Court has held that “the essence of habeas corpus is an attack

23

by a person in custody upon the legality of that custody . . . .” Preiser v. Rodriguez, 411 U.S.

24

475, 484 (1973).

25
26

In addition, in order to succeed in on a federal habeas petition, petitioner must
demonstrate that the adjudication of his claim in state court:
2

1
2
3
4
5

Resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or resulted
in a decision that was based on an unreasonable determination of
facts in light of the evidence presented in the State court
proceeding.”
28 U.S.C. § 2254(d).
Here, petitioner is challenging a 2000 conviction out of El Dorado County. That

6

conviction resulted in a sentence of six years. Petitioner was discharged from that sentence on

7

March 27, 2013, a few weeks before he filed his petition in this court. He is currently in the

8

custody of the Nevada Department of Corrections, a result of a separate conviction not the

9

subject of his current petition. Thus, he no longer meets the in custody requirements of § 2254.

10

As to the timeliness of the petition, federal habeas corpus petitions must be filed

11

within one year from the later of: (1) the date the state court judgment became final; (2) the date

12

on which an impediment to filing created by state action is removed; (3) the date on which a

13

constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date

14

on which the factual predicate of the claim could have been discovered through the exercise of

15

due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run

16

when the state court judgment becomes final by the conclusion of direct review or expiration of

17

the time to seek direct review. See 28 U.S.C. § 2244(d)(1).

18

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

19

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

20

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

21

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

22

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

23

limitations period begins to run the day after certiorari is denied or the Court issued a merits

24

decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for

25

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

26

the Court of Appeal’s decision, and the limitations period begins running the following day. See
3

1

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

2

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

3

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

4

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

5

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

6

Cir. 1999).

7

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

8

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

9

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

10

Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 552 U.S. 3 (2007); Pace v.

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

at 226-27.

24

Here, petitioner is challenging his October 2, 2000 conviction. Petitioner did not

25

appeal the final judgment, nor did he file any state post-conviction challenge. The statute of

26

limitations therefore began on December 1, 2000, sixty days after the expiration of the time to
4

1

file an appeal. Petitioner then had until December 1, 2001, to file his federal petition. As no

2

state post conviction challenges were filed, there was no tolling of this time period. Petitioner

3

did not file his federal habeas petition until April 11, 2013, well beyond the one year statute of

4

limitations. His current petition is therefore untimely.

5

Petitioner’s current petition is also unexhausted. Under 28 U.S.C. § 2254(b), the

6

exhaustion of available state remedies is required before claims can be granted by the federal

7

court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small,

8

315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). Claims may

9

be denied on the merits notwithstanding lack of exhaustion. See 28 U.S.C. § 2254(b)(2). “A

10

petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state

11

court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time

12

the petitioner filed the habeas petition in federal court no state remedies are available to the

13

petitioner and the petitioner has not deliberately by-passed the state remedies.” Batchelor v.

14

Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). The exhaustion doctrine is based

15

on a policy of federal and state comity, designed to give state courts the initial opportunity to

16

correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see

17

also Rose, 455 U.S. at 518.

18

Petitioner did not appeal his conviction nor did he file any state post-conviction

19

challenges to his conviction. He therefore failed to provide the state courts with the opportunity

20

to address the merits of his claims. His petition should therefore be dismissed as unexhausted as

21

well.

22

Finally, as respondent argues, it appears petitioner is attempting to avoid the

23

above issues with his petition by claiming his petition is a writ of coram nobis or audita querela,

24

and filed under the All Writs Act, 28 U.S.C. § 1651. As respondent contends, writs of coram

25

nobis and audita querela are methods by which a criminal defendant may challenge a federal

26

conviction, where other remedies are foreclosed, but are not available to challenge a state
5

1

conviction. See Casas-Catrillon v. Warden, 265 F. App’x 639, *1 (9th Cir. 2008); Carrington v.

2

United States, 503 F.3d 888, 890 (9th cir. 2007); Rawlins v. Kansas, 714 F.3d 1189, 1196-97

3

(10th Cir. 2013). Petitioner is neither challenging a federal conviction out of this court, nor has

4

he shown his claims could not have otherwise been raised in a writ of habeas corpus.

5

Based on the foregoing, the undersigned has construed the petition as a writ of

6

habeas corpus, finds petitioner no longer meets the in custody requirement, and the petition is

7

untimely and fully unexhausted.

8

Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the

9

court has considered whether to issue a certificate of appealability. Before petitioner can appeal

10

this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.

11

22(b). Where the petition is denied on the merits, a certificate of appealability may issue under

12

28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

13

constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of

14

appealability indicating which issues satisfy the required showing or must state the reasons why

15

such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed

16

on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1)

17

‘that jurists of reason would find it debatable whether the district court was correct in its

18

procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition

19

states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775,

20

780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)).

21

Here, the petitioner is being dismissed on procedural grounds. The court finds that petitioner has

22

not satisfied the first requirement for issuance of a certificate of appealability in this case.

23

Specifically, there is no showing that jurists of reason would find it debatable whether

24

petitioner’s petition was timely.

25

Accordingly, IT IS HEREBY ORDERED that:

26

1.

Respondent’s unopposed motion to dismiss (Doc. 12) is granted;
6

1

2.

Petitioner’s petition is dismissed;

2

3.

No certificate of appealability shall issue in this case; and

3

4.

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

4
5
6
7

DATED: March 16, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7