Degroff v. Beard

Filing 20

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/18/14 ORDERING petitioner's 1/09/14 "motion for notification" is construed as a request for the court to apply equitable tolling 17 ; and Petitio ner's 08/28/13 motion 8 is denied. Also, RECOMMENDING that respondent's motion to dismiss 12 be granted; and this action be dismissed. MOTION to DISMISS 12 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MATTHEW JAMES DEGROFF,

12

Petitioner,

13
14

No. 2:13-cv-1638 JAM KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

J. PRICE,1

15

Respondent.

16
17

I. Introduction
Petitioner is a state prisoner, proceeding without counsel and in forma pauperis. Petitioner

18
19

filed an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending

20

before the court is respondent’s motion to dismiss the habeas petition as barred by the statute of

21

limitations. For the reasons set forth below, respondent’s motion should be granted.

22

II. Legal Standards
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

23
24

petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

25

petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth

26
27
28

1

The current Acting Warden of the Deuel Vocational Institution is J. Price, who is substituted as
respondent in this matter. Fed. R. Civ. P. 25(d); see Brittingham v. United States, 982 F.2d 378,
379 (9th Cir. 1992).
1

1

Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under

2

Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420

3

(1991). Accordingly, the court will review respondent's motion to dismiss pursuant to its

4

authority under Rule 4.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was

5
6

enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

7

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 –

8
9

(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;

10
11

(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;

12
13

(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

14
15
16
17

(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.

18

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that “the time during which a properly filed

19

application for State post-conviction or other collateral review with respect to the pertinent

20

judgment or claim is pending shall not be counted toward” the limitations period. 28 U.S.C.

21

§ 2244(d)(2).

22

III. Chronology

23
24

For purposes of the statute of limitations analysis, the relevant chronology of this case is
as follows:

25

1. On May 7, 2009, in the Sacramento County Superior Court, petitioner was convicted of

26

second degree murder. (Respondent’s Lodged Document (“LD”) 1.) The jury also found that

27

petitioner personally used a firearm and that he used and intentionally and personally discharged

28

////
2

1

a firearm. Petitioner was sentenced to state prison for an indeterminate term of forty years to life.

2

(LD 1-2.)

3
4
5
6

2. Petitioner filed an appeal. The California Court of Appeal, Third Appellate District,
affirmed petitioner’s conviction on June 13, 2011. (LD 2.)
3. Through counsel, petitioner filed a petition for review in the California Supreme Court
on July 18, 2011, which was denied without comment on August 24, 2011. (LD 4.)

7

4. Petitioner filed no post-conviction challenges in state court.

8

5. On July 30, 2013, the instant action (ECF No. 1 at 6) was constructively filed. See

9

Rule 3(d) of the Federal Rules Governing Section 2254 Cases. Petitioner raises three grounds for

10

relief: (a) introduction of petitioner’s pretrial statement violated his Fifth Amendment rights

11

under Miranda v. Arizona, 384 U.S. 436 (1966); (b) petitioner was denied the effective assistance

12

of counsel when his trial attorney failed to prepare adequately or correct the defense witness; and

13

(c) cumulative prejudice amounted to a violation of petitioner’s due process rights.

14

IV. Statutory Tolling

15

The California Supreme Court denied the petition for review on August 24, 2011.

16

Petitioner’s conviction became final ninety days later, on November 22, 2011, when the time for

17

seeking certiorari with the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157

18

(9th Cir. 1999). The AEDPA statute of limitations period began to run the following day, on

19

November 23, 2011. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling,

20

petitioner’s last day to file his federal petition was on November 23, 2012.

21
22

As noted above, petitioner filed no post-conviction challenges in state court. Thus,
petitioner is not entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d)(2).

23

Petitioner did not file his federal petition until July 30, 2013, which was 8 months, 7 days,

24

after the statute of limitations period expired. Thus, absent equitable tolling, the instant petition is

25

time-barred.

26

V. Equitable Tolling

27
28

In his opposition to the motion, petitioner does not dispute that his conviction became
final on November 22, 2011, that he did not file any post-conviction challenges in state court, or
3

1

that his federal petition was filed after the statute of limitations period expired. Rather, petitioner

2

argues the merits of his claims, and asks the court to deny the motion to dismiss. As respondent

3

notes, petitioner did not argue for application of equitable tolling in his opposition to the motion.

4

Rather, petitioner asks the court to grant his motion for discovery and evidentiary hearing,

5

claiming that he “cannot effectively argue this writ without discovery.” (ECF No. 16 at 2.)

6

Petitioner states he is only in possession of the briefs filed on direct appeal, and claims that he

7

“tried on several occasions to request all discovery through the trial attorney, the district attorney,

8

and the appeal attorney.” (ECF No. 16 at 2.) In his accompanying “motion for notification,”

9

petitioner seeks the work product and documents from the public defender who represented him

10

in his criminal trial, his client files from appellate counsel, and documents from the district

11

attorney. (ECF No. 17.) Petitioner claims his inability to obtain these documents “is in large part

12

why the habeas was initially seen as untimely.” (ECF No. 17 at 1.) Petitioner appended copies of

13

requests he submitted to obtain these documents from third parties:


14

January 2, 2014 request to Sacramento County Superior Court Criminal Records
Department seeking “all discovery” in Case No. 07F00393.

15


16

September 13, 2013 request to John Hardesty, Appellate Counsel, for all of
petitioner’s client papers, etc. This request was returned as undeliverable.

17


18

August 29, 2013 letter from the assigned Sacramento County Assistant Public
Defender, acknowledging petitioner’s request for his case files.

19
20

(ECF No. 17 at 3-8.) Petitioner argues that these “files are one of the tools [he] will need . . . to

21

present a challenge to his conviction, and sentence, both directly or collateral.” (ECF No. 17 at

22

1.) The court construes petitioner’s motion as a request to apply equitable tolling.

23

Equitable tolling is available to toll the one-year statute of limitations available to 28

24

U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A litigant

25

seeking equitable tolling must establish: (1) that he has been pursuing his rights diligently; and

26

(2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408,

27

418 (2005). The Ninth Circuit has explained:

28

////
4

To apply the doctrine in “extraordinary circumstances” necessarily
suggests the doctrine's rarity, and the requirement that extraordinary
circumstances “stood in his way” suggests that an external force
must cause the untimeliness, rather than, as we have said, merely
“oversight, miscalculation or negligence on [the petitioner's] part,
all of which would preclude the application of equitable tolling.

1
2
3
4
5

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (internal citation omitted), cert.

6

denied, 130 S. Ct. 244 (2009); see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.

7

2003) (petitioner must show that the external force caused the untimeliness). It is petitioner’s

8

burden to demonstrate that he is entitled to equitable tolling. Espinoza-Matthews v. People of the

9

State of California, 432 F.3d 1021, 1026 (9th Cir. 2005).
To the extent that petitioner seeks equitable tolling based on his allegations that counsel

10
11

did not return his legal files to him, there is authority holding that an impediment of this type may

12

warrant equitable tolling in some circumstances. See Waldron-Ramsey, 556 F.3d at 1013 (citing

13

Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002)); see also Ford v. Hubbard, 330 F.3d 1086,

14

1107 (9th Cir. 2003), reversed on other grounds by Pliler v. Ford, 540 U.S. 1099 (2004); United

15

States v. Battles, 362 F.3d 1195, 1198 & n. 5 (9th Cir. 1998).2 However, petitioner “bears the

16

burden of showing his own diligence and that the hardship caused by lack of access to his

17

materials was an extraordinary circumstance that caused him to file his petition . . . late.”

18

Waldron-Ramsey, 556 F.3d at 1013 (citing Pace, 544 U.S. at 418).
Here, even assuming that counsel wrongly failed to deliver to petitioner the records and

19
20

files in counsel’s possession, it was not unrealistic to expect petitioner to pursue his habeas claims

21

with reasonable diligence, because it does not appear that the files held by counsel were necessary

22

to enable petitioner to raise his current claims when he eventually chose to do so. The fact that a

23

petitioner ultimately files his petition without a transcript is not necessarily dispositive of whether

24

the alleged attorney misconduct prevented the petitioner from filing in a timely fashion. Battles,

25

2

26
27
28

In Battles and Ford, the Ninth Circuit remanded the cases for further factual development,
finding that the record had not been sufficiently developed to determine whether attorney
wrongdoing in withholding transcripts amounted to an extraordinary circumstance that precluded
the petitioners from timely filing their petitions. See Battles, 362 F.3d at 1198 n.5; Ford, 330
F.3d at 1107. In this case, however, further development of the record is not necessary to
determine that petitioner fails to satisfy the reasonable diligence requirement for equitable tolling.
5

1

362 F.3d at 1198 n.5 (“Were it otherwise, a person who in desperation finally filed something

2

anyway would be barred, ipso facto, whereas a person who did not file at all would not be.”). On

3

the other hand, a petitioner's entitlement to equitable tolling in this context depends on the “whole

4

developed factual picture,” and “the actual filing may loom large in the final tolling determination

5

for it might ultimately show that [the petitioner] was not actually delayed at all.” Id.

6

In this case, a review of petitioner's 2010 appellate brief (ECF No. 1 at 8-64) and 2011

7

petition for review (ECF No. 1 at 132-69), both of which included pertinent citations to the trial

8

transcript and specific statements of fact regarding the trial proceedings, makes it apparent that

9

petitioner did not lack access to records necessary to file his habeas claims. See Williams v.

10

Clark, 2008 WL 474343 at *5 (C.D. Cal., Jan.3, 2008) (finding counsel's failure to return files not

11

determinative of timeliness when files were not necessary to presentation of claims); see also

12

Castillo v. Evans, 2008 WL 4351143, *10 (C.D. Cal. Sept. 19, 2008) (the “mere fact that

13

petitioner did not receive the trial transcripts from [his attorney] until over four-and-a-half years

14

after his limitations period had expired, however, does not explain why petitioner waited so long

15

to seek federal habeas relief” because the claims “could have been raised in federal court . . .

16

regardless of whether or not petitioner possessed the trial transcripts.”); United States v. Van

17

Poyck, 980 F.Supp. 1108, 1111 (C.D. Cal. 1997) (a lack of transcripts cannot be found to be an

18

extraordinary circumstance without an explanation of why they were needed to prepare and file a

19

habeas petition).

20

Even if petitioner was unaware of the AEDPA time bar, such lack of legal knowledge

21

with respect to operation of the AEDPA limitations period does not provide a basis for equitable

22

tolling. See Waldron-Ramsey, 556 F.3d at 1013, n.4 (citing Rasberry v. Garcia, 448 F.3d 1150,

23

1154 (9th Cir. 2006)).

24

Moreover, the documents provided by petitioner demonstrate that petitioner was not

25

diligent because he waited many years after his conviction to seek his client files. Petitioner did

26

not seek return of the legal files until mid-2013, after the limitations period expired. Accordingly,

27

in the absence of a showing of reasonable diligence by petitioner, equitable tolling is unavailable

28

even if counsel failed to return petitioner’s client files. Because petitioner is not entitled to
6

1

equitable tolling, the undersigned recommends that respondent’s motion to dismiss this action as

2

barred by the statute of limitations be granted.

3

VIII. Motion for Discovery and Evidentiary Hearing

4

On August 28, 2013, petitioner filed a motion for discovery and for evidentiary hearing.

5

The discovery petitioner seeks is relevant to the merits of his claims. In light of the above

6

recommendation, petitioner’s motion for discovery and for evidentiary hearing is moot and is

7

denied.

8

IX. Conclusion

9

Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner’s January 9, 2014 “motion for notification,” is construed as a request for the

10
11

court to apply equitable tolling (ECF No. 17); and

12

2. Petitioner’s August 28, 2013 motion (ECF No. 8) is denied.

13

IT IS RECOMMENDED that:

14

1. Respondent’s motion to dismiss (ECF No. 12) be granted; and

15

2. This action be dismissed.

16

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

17

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

18

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

19

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

20

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

21

he shall also address whether a certificate of appealability should issue and, if so, why and as to

22

which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

23

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

24

§ 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after

25

service of the objections. The parties are advised that failure to file objections within the

26

////

27

////

28

////
7

1

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

2

F.2d 1153 (9th Cir. 1991).

3

Dated: February 18, 2014

4
5

/degr1638.mtd.hc.sol

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8