Griffin v. Perry

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 9/15/2016 RECOMMENDING respondent's 10 motion to dismiss be granted, and petitioner's 19 motion for an extension of time be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY C. GRIFFIN,

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Petitioner,

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vs.

FINDINGS AND RECOMMENDATION

S. PERRY,
Respondent.

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No. 2:15-cv-1776-MCE-CMK-P

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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. 10), petitioner’s opposition (Doc. 12), and respondent’s reply (Doc. 17). Petitioner

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requested additional time to file a response to respondent’s reply (Doc. 19). However, such a

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pleading is not contemplated by the Federal Rules of Civil Procedure and should be denied.

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I.

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Petitioner is challenging his 2011 conviction out of the Sacramento County

BACKGROUND

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

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and the California Supreme Court denied review on July 31, 2013. Petitioner filed a state habeas

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petition in the Sacramento Superior Court on October 22, 2014, which was denied on December
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16, 2014. He then filed a petition in the California Court of Appeal on March 10, 2015, which

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was denied on March 19, 2015. He filed his petition in the California Supreme Court on May 14,

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2015, which was denied August 12, 2015. Finally, he filed his current petition in this court on

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August 17, 2015.

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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

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

MOTION TO DISMISS

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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 statutory tolling, and his petition should be considered timely filed.

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The Antiterrorism and Effective Death Penalty Act (AEDPA) requires federal

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habeas corpus petitions to be filed within one year from the later of: (1) the date the state court

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judgment became final; (2) the date on which an impediment to filing created by state action is

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removed; (3) the date on which a constitutional right is newly-recognized and made retroactive

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on collateral review; or (4) the date on which the factual predicate of the claim could have been
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discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute

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of limitations will begin to run when the state court judgment becomes final by the conclusion of

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direct review or expiration of the time to seek direct 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. Because “California courts had not provided authoritative guidance on this issue,”

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the Supreme Court in Chavis “made its own conjecture... ‘that California’s “reasonable time”

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standard would not lead to filing delays substantially longer than’ between 30 and 60 days.”

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Robinson v. Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (quoting Evans v. Chavis, 546 U.S. 189,

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199 (2006)).

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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 May 2013. The

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California Supreme Court denied review on July 31, 2013. As no petition for certiorari was

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filed, the statute of limitations commenced after the 90 day period of time for filing a petition for

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writ of certiorari, or October 30, 2013. The statute of limitations expired one year later, on

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October 29, 2014.
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Petitioner filed his first state habeas petition on October 22, 2014. He had

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therefore used 357 days of the statue of limitations prior to filing his first petition. That first

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petition was denied on December 16, 2014, and his second state petition was not filed until

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March 10, 2015, 84 days later. That second petition was denied on March 19, 2015, and his third

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state petition was filed May 14, 2015, 56 days later. That third petition was denied on August

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12, 2015, and his federal habeas petition was filed on August 17, 2015, 5 days later.

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The question in this case is whether the 84 days between petitioner’s first and

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second state habeas petitions was unreasonable, thereby ending the tolling of the statute of

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limitations. If the delay is considered unreasonable, and the statute commenced running, the

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statute of limitations would have expired prior to the filing of petitioner’s second state petition

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rendering his federal petition untimely.

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Respondent contends a delay over 60 days is unreasonable, and the statute of

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limitations recommenced upon the denial of petitioner’s first state petition, on December 16,

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2014. Petitioner contends the 84 day delay was reasonable under the circumstances, and the

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statute of limitations should have been tolled the entire time. There is no question in this case, as

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the parties seem to agree, that the normal 30-60 day delay between filings is considered

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reasonable, thereby tolling the statute of limitations, and that any delay beyond the 30-60 window

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must be supported by good cause in order for the tolling to continue.

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Petitioner attempts to show good cause for his 84-day delay by arguing limited

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access to the prison law library. However, access to the prison law library is a burden every

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prisoner faces. It is not an unusual event, and it the type of hurdle that would have been known

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and contemplated when establishing the statute of limitations in EDPA. In addition, as

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respondent argues, petitioner essentially states that the delay was in obtaining copies of his

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petition, not for extensive research or due to the lack of specific legal materials as was in the

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situation in some of the cases petitioner cites. Obtaining copies of his petition did not require

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actual library access, as there are means in which prisoners can obtain copies of their legal work
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other than actual time in the law library. Therefore, a delay of 84 days between the filing of his

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first and second state habeas petitions in order to obtain copies of his petition due to limited

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access to the law library is not considered good cause. Accordingly, petitioner is not entitled to

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tolling during that delay, and his federal habeas petition is untimely.

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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’s 84-day delay between state habeas petition filings was not

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reasonable to entitled him to continued tolling.

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Based on the foregoing, the undersigned recommends respondent’s motion to
dismiss (Doc. 10) be granted, and petitioner’s motion for extension of time (Doc. 19) be denied.

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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: September 15, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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