Bonner v. People Of California

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/11/2017 RECOMMENDING respondent's 11 motion to dismiss be granted and petitioner's 1 application for a writ of habeas corpus be denied as untimely; and this court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CLINTON J. BONNER,

12

Petitioner,

13
14

No. 2:16-cv-0801 MCE AC P

v.

FINDINGS & RECOMMENDATIONS

JENNIFER BARRETTO,

15

Respondent.

16
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

17
18

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pending before the court is

19

respondent’s motion to dismiss on the grounds that petitioner is outside the one-year statute of

20

limitations. ECF No. 11. Petitioner has responded to the motion (ECF No. 17) and respondent

21

has replied (ECF No. 20).
I.

22

Factual and Procedural Background
Petitioner pled no contest to two counts of robbery with a gun enhancement and was

23
24

sentenced to a determinate state prison term of thirteen years. Lodged Doc. 1. Judgement was

25

entered on March 15, 2013, which he did not appeal. Id.; ECF No. 1 at 1-2. He later filed three

26

pro se state post-conviction collateral challenges regarding the judgement against him. ECF No.

27

1 at 5. Petitioner first filed a petition for writ of habeas corpus in the Sacramento County

28

////
1

1

Superior Court on August 12, 20141 (Lodged Doc. 2), which was denied on December 10, 2014

2

(Lodged Doc. 3). He then filed a petition in the California Court of Appeal, Third Appellate

3

District on January 6, 2015 (Lodged Doc. 4), which was denied on January 29, 2015 (Lodged

4

Doc. 5). Finally, he filed a petition in the California Supreme Court on April 28, 2015 (Lodged

5

Doc. 6), which was denied on September 9, 2015 (Lodged Doc. 7). The instant petition was filed

6

on April 19, 2016. ECF No. 1 at 71.

7

II.

8
9

Motion to Dismiss
Respondent now moves to dismiss the instant petition as untimely. ECF No. 11. Since no

direct appeal was brought, respondent argues that petitioner’s March 15, 2013 judgment became

10

final sixty days later on May 14, 2013, and accordingly, absent tolling, the last day to file his

11

federal habeas petition was May 14, 2014. Id. at 3. Respondent argues that petitioner’s claim

12

here is time-barred because the one-year statute of limitations ended on May 14, 2014, and

13

petitioner did not file the instant petition until after that date passed. Id. Additionally, respondent

14

claims that petitioner’s three state petitions were all filed after the statute of limitations expired

15

and therefore did not restart or revive the statute of limitations period. Id. at 3-4.

16

III.

17

Response
In petitioner’s opposition, he argues that respondent and the court did not adequately take

18

his mental competence into account. ECF No. 17 at 3-9. Petitioner further argues that the

19

superior court erred in deeming him competent to waive his rights and enter into a plea

20

agreement. Id. He appears to argue that his incompetence to enter a plea entitles him to have his

21

petition considered on the merits. Id. at 7. This argument will be liberally construed as one for

22

equitable tolling.

23

IV.

24

Reply
Respondent opposes petitioner’s prayer for equitable tolling because petitioner does not

25

allege specific facts about how his alleged condition delayed his challenge to the conviction.

26

ECF No. 20 at 3. In short, petitioner insufficiently describes his mental health and does not state

27
28

1

Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox
rule. Houston v. Lack, 487 U.S. 266, 276 (1988).
2

1
2

that his mental incompetence covers the necessary time period. Id. at 4-5.
V.

3

Discussion
Section 2244(d)(1) of Title 28 of the United States Code contains a one-year statute of

4

limitations for filing a habeas petition in federal court. The one-year clock commences from one

5

of several alternative triggering dates. See 28 U.S.C. § 2244(d)(1). In this case, the applicable

6

date is that “on which the judgment became final by the conclusion of direct review or the

7

expiration of the time for seeking such review.” § 2244(d)(1)(A).

8

Per Rule 8.308(a) of the California Rules of Court, a conviction must be appealed within

9

sixty days after the entry of judgment. Since judgement was entered on March 15, 2013 (Lodged

10

Doc. 1), the end of the sixty-day period for plaintiff to file a direct appeal was May 14, 2013. The

11

statute of limitations expired one year later on May 14, 2014. Petitioner filed the instant petition

12

on April 19, 2016. ECF No. 1 at 71. Absent statutory or equitable tolling, the instant petition

13

was untimely.

14

A.

15

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), the statute of

Statutory Tolling

16

limitations is tolled during the time that a properly filed application for state post-conviction or

17

other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). The “statute of

18

limitations is not tolled from the time a final decision is issued on direct state appeal and the time

19

the first state collateral challenge is filed because there is no case ‘pending’ during that interval.”

20

Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), overruled in part on other grounds, Carey v.

21

Saffold, 536 U.S. 214 (2002). State habeas petitions filed after the one-year statute of limitations

22

has expired do not revive the statute of limitations and have no tolling effect. Ferguson v.

23

Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (citing Tinker v. Moore, 255 F.3d 1331 (11th Cir.

24

2001)).

25

Petitioner filed his first state petition for writ of habeas corpus on August 12, 2014.

26

Lodged Doc. 2. This was almost three months after May 14, 2014, the date the statute of

27

limitations expired. Therefore, there is no basis for statutory tolling of the statute of limitations in

28

this case.
3

1

B.

2

A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of

3

limitations only if the petitioner shows: “‘(1) that he has been pursuing his rights diligently, and

4

(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland

5

v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

6

An “extraordinary circumstance” has been defined as an external force that is beyond the

7

inmate’s control. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citations omitted). “The

8

diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible

9

diligence.” Holland, 560 U.S. at 653 (internal citations and quotation marks omitted).

10

Equitable Tolling

Concerning mental illness, the Ninth Circuit has specified that “equitable tolling is

11

permissible when a petitioner can show a mental impairment so severe that the petitioner was

12

unable personally either to understand the need to timely file or prepare a habeas petition, and that

13

impairment made it impossible under the totality of the circumstances to meet the filing deadline

14

despite petitioner’s diligence.” Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010).

15

Petitioner was explicitly warned that “[t]he court [would] not consider the merits of

16

petitioner’s claims until the statute of limitations issue [had] been resolved” and that he should

17

“respond only to the argument that he filed his petition too late.” ECF No. 15 at 1. Despite these

18

warnings, petitioner makes no allegations that his mental illness prevented him from filing a

19

habeas petition before the expiration of the one-year statute of limitations. Instead, petitioner

20

states he received methadone treatments multiple times throughout 2012, with the last specified

21

date of treatment being September 4, 2012. ECF No. 17 at 21. He does not explain how these

22

treatments affected his mental competence. Id. Moreover, the one-year statute of limitations for

23

filing a federal habeas petition began running on May 15, 2013, over eight months after the last

24

identified methadone treatment. With respect to petitioner’s general allegations of mental

25

incompetency, as in the petition, he focuses exclusively on his mental state during the state

26

criminal proceedings leading up to his plea agreement and his lack of mental capacity to enter

27

into a plea agreement. Id. at 3-23.

28

////
4

1

Petitioner also makes a brief reference to the fact that he was moved out-of-state, which

2

created delay in filing. Id. at 7-8. However, in his petition, he states that he was not moved out

3

of state until August 2014 (ECF No. 1 at 12), at which point the statute of limitations had already

4

expired.

5

Petitioner does not offer any allegations that during the period relevant to the timeliness of

6

the instant petition he was diligently pursuing his rights or was prevented from doing so by

7

extraordinary circumstances. Therefore, equitable tolling is not applicable to this case.

8

C.

9

The court notes that petitioner has also filed objections to respondent’s reply, which will

Petitioner’s Surreply

10

be construed as a surreply. ECF No. 21. The surreply will be disregarded because it is

11

unauthorized and does not address petitioner’s ability to file a timely federal petition.

12

D.

13

Because petitioner is not entitled to statutory or equitable tolling, his petition was filed

14

outside the statute of limitations and it is recommended that the motion to dismiss be granted.

15
16

VI.

Conclusion

Certificate of Appealability
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must

17

issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A

18

certificate of appealability may issue only “if the applicant has made a substantial showing of the

19

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a petition is dismissed on

20

procedural grounds, as is being recommended in this case, a certificate of appealability “should

21

issue when the prisoner shows, at least, [(1)] that jurists of reason would find it debatable whether

22

the petition states a valid claim of the denial of a constitutional right and [(2)] that jurists of

23

reason would find it debatable whether the district court was correct in its procedural ruling.”

24

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

25
26
27
28

This court finds that no jurist of reason would find it debatable that the petition is barred
by the statute of limitations and a certificate of appealability should not issue.
VII.

Plain Language Summary of this Order for a Pro Se Litigant

The petition should be denied because it was filed too late. You do not get statutory
5

1

tolling because your state habeas petitions were all filed after the deadline had passed. Your

2

claims that you lacked mental capacity do not entitle you to equitable tolling because all of your

3

allegations relate to your ability to enter into a plea agreement. Also, you were not moved out-of-

4

state until after the deadline had passed.

5

Accordingly, IT IS HEREBY RECOMMENDED that:

6

1. Respondent’s motion to dismiss (ECF No. 11) be granted and petitioner’s application

7

for a writ of habeas corpus be denied as untimely.

8
9
10

2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. §
2253.
These findings and recommendations are submitted to the United States District Judge

11

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

12

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

13

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

14

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

15

objections shall be filed and served within fourteen days after service of the objections. The

16

parties are advised that failure to file objections within the specified time may waive the right to

17

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

18

DATED: August 11, 2017

19
20
21
22
23
24
25
26
27
28
6