Johnson v. People of the State of California

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/12/16 recommending that respondent's unopposed motion to dismiss 11 be granted. MOTION to DISMISS 11 referred to Judge Troy L. Nunley. 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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COREY J. JOHNSON, SR.,

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Petitioner,

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No. 2:14-CV-1971-TLN-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION,

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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 unopposed

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motion to dismiss (Doc. 11). Respondent argues that the petition is untimely.

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I. BACKGROUND

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Petitioner pleaded guilty to two counts of second degree robbery and a number of

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sentencing enhancements were found to be true. Petitioner was sentenced on August 14, 2012, to

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a determinate state prison term of 30 years. Petitioner then filed five habeas actions in state court

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as follows:

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1st Petition

California Supreme Court
Filed March 18, 2013
Denied May 15, 2013

2nd Petition

Sacramento County Superior Court
Filed May 22, 2013
Denied July 24, 2013

3rd Petition

California Court of Appeal
Filed July 3, 2013
Denied July 18, 2013

4th Petition

Sacramento County Superior Court
Filed August 2, 2013
Denied August 26, 2013

5th Petition

California Supreme Court
Filed September 27, 2013
Denied January 15, 2014

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The instant federal petition was filed on August 19, 2014.

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II. DISCUSSION
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, 128 S.Ct. 2 (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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Petitioner was sentenced on August 14, 2012. Because petitioner pleaded guilty

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and did not seek direct review, the one-year limitations period began to run upon the expiration

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of the time to seek direct review, or on October 14, 2012. The limitations period then ran for 155

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days until petitioner filed his first state petition on March 19, 2013, in the California Supreme

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Court, at which point the clock stopped for the 59 days until the first petition was denied on May

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15, 2013.

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Six days later petitioner filed his second state petition on May 22, 2013, in the

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Sacramento County Superior Court. As respondent correctly notes, there is no tolling of the

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limitations period for the time between the denial of his first petition and second petition because

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petitioner was not moving to the next highest court. Rather, by filing his first petition in the

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California Supreme Court and his second petition in the Sacramento County Superior Court,

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petitioner began a separate round of post-conviction proceedings. See Delhomme v. Ramirez,

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340 F.3d 817 (9th Cir. 2003); Smith, 297 F.3d at 815. Respondent concedes the limitations
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period was tolled again during the time the second state petition was pending, or until July 24,

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2013. The third state petition has no effect on calculating the limitations period because it was

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filed after and decided before the second petition.

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Once again petitioner began a new round of post-conviction review with the

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fourth state petition filed on August 2, 2013, in the Sacramento County Superior Court.

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Therefore, petitioner is not entitled to tolling for the interval between denial of the third petition

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and filing of the fourth petition. As to the time the fourth petition was pending, respondent notes

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that the state court denied the petition as untimely. Therefore, the court agrees with respondent

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that the fourth petition was not “properly filed” and does not operate to toll the limitations

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period. Similarly, the fifth petition was also denied as untimely and, therefore, was not “properly

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filed” for purposes of statutory tolling. Following denial of the fifth state petition on January 15,

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2014, petitioner waited 215 days before filing the instant federal action.

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Following commencement of the one-year limitations period upon expiration of

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the time to seek direct review, 155 days elapsed before petitioner filed his first state post-

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conviction action, which tolled the clock. The clock began to run again upon denial of the first

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state petition until the second petition was filed six days later because petitioner began a new

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round of state post-conviction review with the second petition. The clock stopped again during

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the time the second state petition was pending. Because petitioner once again began a new round

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of state post-conviction review with the filing of the fourth petition, and because both the fourth

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and fifth petitions were not properly filed, the clock began to run again upon denial of the second

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state petition on July 24, 2013. The instant action was filed on August 25, 2014 (with a proof of

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service dated August 19, 2014), beyond the one-year limitations period even assuming tolling for

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all of the time through the denial of the last properly filed state petition to be decided (the second

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petition). The court finds, therefore, that the petition is untimely.

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III. CONCLUSION
Based on the foregoing, the undersigned recommends that respondent’s
unopposed motion to dismiss (Doc. 11) 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: February 12, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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