Hill v. Holland

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/7/17 RECOMMENDING that respondent's motion to dismiss (Doc. 12 ) be granted and the petition be dismissed as filed beyond the statute of limitations. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, 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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DONALD JESSE HILL,

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Petitioner,

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No. 2:15-cv-1912-MCE-CMK-P

vs.

FINDINGS AND RECOMMENDATION

K. HOLLAND,

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Respondent.

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/

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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. 12), petitioner’s opposition (Doc. 13), and respondent’s reply1 (Doc. 16).

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I.

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Petitioner is challenging his 1991 conviction out of the Sacramento County

BACKGROUND

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Superior Court, for rape and related charges. His conviction was affirmed on appeal by the

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California Court of Appeal on February 26, 1993. Petitioner’s petition for review in the

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California Supreme Court was denied on May 27, 1993. No petition for writ of certiorari was

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Respondent requested leave of court to file a late reply (Doc. 15). Good cause
appearing therefor, the request is granted and the reply is deemed timely filed.
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filed with the United States Supreme Court.

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Petitioner filed eleven state post-conviction challenges, including petitions for

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writ of habeas corpus, petitions for writ of mandate, and petitions for review in the California

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Supreme Court. His first state habeas petition was filed on March 19, 2013.

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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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argues that the statute of limitations is not applicable to his claim because he is only challenging

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an invalid sentence. He also contends that the procedural bar set forth in In re Clark, 5 Cal. 4th

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750, 765 n.5 (1993), was not firmly established prior to his conviction becoming final, and is

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therefore inapplicable.

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Federal habeas corpus petitions must be filed within one year from the later of:
(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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The limitations period is tolled, however, for the time a properly filed application for post-

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

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

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

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

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timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the

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

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

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petitioner is attempting, through proper use of state court procedures, to present his claims. See

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

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after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327

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(2007) (holding that federal habeas petition not tolled for time during which certiorari petition to

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the Supreme Court was pending). Where the petitioner unreasonably delays between state court

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applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S.

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214 (2002). If the state court does not explicitly deny a post-conviction application as untimely,

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the federal court must independently determine whether there was undue delay. See id. at 2263

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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 a 1991 conviction. As his conviction became final

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prior to 1996, his one-year statute of limitations began running on April 25, 1996. See Miles, 187

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F.3d at 1105. Petitioner then had until April 25, 1997 to file his federal petition for writ of

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habeas corpus. However, his federal habeas petition was not filed until September 10, 2015.

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Without tolling, the petition is untimely.

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As for statutory tolling, petitioner did not file his first state habeas petition until

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2015, eighteen years after the statute of limitations expired. A state habeas petition filed after the

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expiration of the statute of limitations cannot toll the limitations period for filing a federal habeas

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petition.

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Petitioner contends that there is no time limit for challenging an invalid sentence.

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However, he cites to only state law cases where a prisoner was allowed to collaterally attack his

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incarceration based on a statute that had been declared unconstitutional. See In re Bartlett, 96

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Cal. Rptr. 96 (Cal. App. 1971)2. Here, petitioner is challenging his sentence on the basis that his

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sentence was disproportionate and miscalculated, not that the statute he was convicted under had

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been declared unconstitutional or otherwise overturned. Petitioner also appears to be arguing

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that the timeliness rule set forth in Clark was not clearly established at the time of his conviction.

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The other cases petitioner cites to are either not applicable or are not accurate
citations to the cases relies on.
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However, Clark was decided in 1993, and relied upon a 1949 case, In re Swain, 34 Cal. 2d 300,

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302, 209 P2d 793 (1949) in holding that a significant delay must be explained. This was clearly

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established certainly by 1997 when petitioner’s statute of limitations expired. Petitioner fails to

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cite to any case showing he has the ability to challenge an invalid sentence in federal court after

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the expiration of the statute of limitations, regardless of whether the state courts would allow

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such a challenge.

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Finally, petitioner mentions he may be actually innocent. However, his statement

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is conclusory and he provides no argument or facts to establish his possible claim of actual

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innocence. A claim of actual innocence can be an equitable exception to the statute of

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limitations, not a basis for equitable tolling. The Ninth Circuit Court of Appeals has found that

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“a credible claim of actual innocence” may be sufficient to have otherwise time-barred claims

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heard on the merits. Lee v. Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011).

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In Lee, the Court held that a credible claim of actual innocence constitutes an

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equitable exception to ADEPA’s statute of limitations, and a petitioner who makes such a

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showing may pass through the Schlup gateway and have his otherwise time-barred claims heard

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on the merits. See id. (citing Schlup v Delo, 513 U.S. 298, 314-16 (1995)). Thus, if an

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otherwise time-barred habeas petitioner demonstrates that it is more likely than not that no

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reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner may pass

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through the Schlup gateway and have his constitutional claims heard on the merits. See Lee, 653

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F.3d at 937 (emphasis added).

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It is the petitioner’s burden to produce sufficient proof of actual innocence to

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bring him within the narrow class of cases implicating a fundamental miscarriage of justice. See

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id. The petitioner must submit new, reliable evidence that undercuts the reliability of the proof

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of guilt and is so strong that a court cannot have confidence in the outcome of the trial unless the

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court is also satisfied that the trial was free of non-harmless constitutional error. See id. at

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937–38 (citing Schlup v. Delo, 513 U.S. 298, 314–16 (1995)). The evidence may be exculpatory
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scientific evidence, trustworthy eyewitness accounts, and critical physical evidence. A petitioner

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must show that it is more likely than not that no reasonable juror would have convicted him in

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light of the new evidence. The court considers all new and old evidence and makes a

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probabilistic determination of what reasonable, properly instructed jurors would do. See id. at

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938. The Court in Lee expressly declined to decide what level, if any, of diligence is required for

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one raising the equitable exception of actual innocence. See id. at 934 n. 9.

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Here, petitioner offers nothing to support any contention that he is actually
innocent. Thus, he has failed to meet his burden.

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III.

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CONCLUSION

The undersigned finds the petitioner’s federal habeas petition is untimely, as it

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was filed beyond the expiration of the statute of limitations, and petitioner has not met the actual

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innocence equitable exception to the statute of limitations.

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Based on the foregoing, the undersigned recommends that respondent’s motion to

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dismiss (Doc. 12) be granted and the petition be dismissed as filed beyond the statute of

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limitations.

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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 7, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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