Simon v. Solano County

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 06/08/15 recommending that respondent's motion to dismiss 25 be granted. MOTION to DISMISS 25 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID SIMON,

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No. 2:13-cv-2234-WBS-CMK-P

Petitioner,

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vs.

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STU SHERMAN,

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ORDER

Respondent.

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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. Pending before the court is respondent’s motion to

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dismiss (Doc. 25), petitioner’s opposition (Doc. 27), and respondent’s reply (Doc. 28). Petitioner

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also filed objections to the respondent’s reply (Doc. 29). Such a pleading is not contemplated by

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the Federal Rules of Civil Procedure. However, as petitioner filed his objections prior to the

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court’s review of the motion to dismiss, the court has reviewed them.

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I.

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Petitioner is challenging his 2011 conviction out of the Solano County Superior

BACKGROUND

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Court. His conviction was affirmed by the California Court of Appeal in 2013, and the

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California Supreme Court denied review on June 19, 2013. Petitioner did not file a state habeas
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petition for the state courts to collaterally review petitioner’s claims. The current federal petition

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for writ of habeas corpus was filed on December 9, 2014, but providing petitioner the benefit of

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the mailbox rule, the petition was constructively filed the date it was signed, November 13, 2014.

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See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (applying rule to prisoner’s

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habeas corpus petition).

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II.

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

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

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

MOTION TO DISMISS

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

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

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

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

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

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

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

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

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

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

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Respondent brings this motion to dismiss Petitioner’s habeas corpus petition as

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filed beyond the one-year statute of limitations, pursuant to 28 U.S.C. § 2244(d). Petitioner

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asserts that he is entitled to equitable tolling.

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Federal habeas corpus petitions must be filed within one year from the later of:

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(1) 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, 552 U.S. 3 (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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Here, petitioner is challenging his 2011conviction. Petitioner appealed his

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conviction to the California Court of Appeal, which affirmed his conviction in March 2013. The

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California Supreme Court denied review on June 19, 2013. No petition for certiorari was filed

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and no post conviction petition for writ of habeas corpus was filed. The statute of limitations

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therefore commenced after the 90 day period of time for filing a petition for writ of certiorari, or

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September 18, 2013. The statute of limitations expired one year later, on September 17, 2014.

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The petition petitioner constructively filed in this court on November 13, 2014, is therefore

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untimely, and barred by the statute of limitations, unless he is entitled to equitable tolling as he

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contends.
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The Supreme Court has determined the statute of limitations under 28 U.S.C. §

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2244(d) is subject to equitable tolling principles. See Holland v. Florida, 560 U.S. 631, 645

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(2010). To be entitled to equitable tolling, the petitioner must demonstrate that: (1) he has been

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diligent in pursuing his rights; and (2) extraordinary circumstances prevented him from filing on

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time. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

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Petitioner states in his opposition that he is entitled to equitable tolling, but fails to

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articulate sufficient reasons therefor. He simply states that the “court should consider granting

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equitable tolling when petitioner is proceeding in pro se, has little education in just how to file

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legal documentation due to not being a lawyer and petitioner is somewhat illiterate unable to

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read/and/or write.” (Opp., Doc. 27 at 1-2). He also indicates that his claim is a novel claim

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which should be taken into consideration, that he is actually innocent, and was diligent in trying

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to get his petition filed timely. All of his statements, however, are conclusory and provide the

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court with no facts to support his claim. Simply stating he has been diligent and that he has

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limited legal knowledge is insufficient to demonstrate extraordinary circumstances prevented

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petitioner from filing on time. Most prisoners lack legal training; a good majority of prisoners

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lack any type of higher education. However, all prisoners are held to the same time constraints.

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Lack of legal knowledge, having limited education, and being “somewhat” illiterate are not

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conditions so extraordinary which would prevent a prisoner from filing his habeas petition on

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time. As to diligence, which is also required, petitioner simply states he was diligent. He does

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not, however, set forth with any particularity what he did to attempt to file a timely petition, nor

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does he explain why it was not possible for him to do so. Such a lack of explanation is

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insufficient to meet the standards required to qualify for equitable tolling.

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III.

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The undersigned finds the petitioner’s federal habeas petition was filed beyond the

CONCLUSION

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statute of limitations, and petitioner is not entitled to equitable tolling.

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Based on the foregoing, the undersigned recommends respondent’s motion to
dismiss (Doc. 25) be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 8, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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