Givens v. Seibel

Filing 43

ORDER signed by Chief District Judge Kimberly J. Mueller on 11/2/2020 DECLINING TO ADOPT 35 Findings and Recommendations. The delay between Mr. Givens' state-court petitions was not reasonable, so the limitations period was not tolled. Any c laims in Mr. Givens 7 Amended Petition, that do not relate back to the claims in his original 1 Petition for Writ of Habeas Corpus, are DISMISSED. This matter is REFERRED back to the assigned Magistrate Judge for further proceedings. This order resolves 17 Motion to Dismiss. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANCOIS P. GIVENS,

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Plaintiff,

No. 2:17-cv-0328 KJM CKD P
ORDER

v.
ROBERT NEUSCHMID,
Defendant.

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This matter is before the court on the assigned Magistrate Judge’s recommendation to

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deny the state’s motion to dismiss. See Mot., ECF No. 17; F&Rs, ECF No. 35; Objections, ECF

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No. 36; Reply, ECF No. 39. As explained below, the court declines to adopt the magistrate

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judge’s recommendation.

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Each claim in a state prisoner’s federal habeas corpus petition must be filed within a one-

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year statute of limitations period. See 28 U.S.C. § 2244(d)(1); Mardesich v. Cate, 668 F.3d 1164,

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1171 (9th Cir. 2012). That limitations period is tolled while “a properly filed application for State

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post-conviction or other collateral review . . . is pending.” Id. § 2244(d)(2). An application is

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“pending” not only while a state court considers a filed petition or appeal, but also during the

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interval “between a lower state court’s decision and the filing of a notice of appeal to a higher

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state court.” Carey v. Saffold, 536 U.S. 214, 217 (2002). That is also true in California even
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though its post-conviction relief procedure “does not involve a notice of appeal, but rather the

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filing (within a reasonable time) of a further original state habeas petition in a higher court.” See

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id. In short, “[t]he period between a California lower court’s denial of review and the filing of an

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original petition in a higher court is tolled—because it is part of a single round of habeas relief—

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so long as the filing is timely under California law.” Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir.

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2010). The petitioner bears the burden to show that the limitations period should be tolled. Id. at

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967.

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Here, the limitations period for petitioner Francois Givens’s federal habeas petition began
to run on February 8, 2017, the day after the last day he could have asked the United States

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Supreme Court to review his conviction. See Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir.

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1999). His original petition was filed within that one-year period. See ECF No. 1. But he also

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filed an amended petition a little more than a year after his original petition. ECF No. 7. That

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amended petition includes several claims that, according to the state, do not relate back to his

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original petition. See Mot. at 1. As a result, if the limitations period was not tolled, and if the

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new claims do not relate back to the timely original petition as the state contends, then the new

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claims were untimely and must be dismissed.

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Mr. Givens filed several petitions for post-conviction relief in California state courts.
Three could conceivably toll the limitations period:


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December 20, 2016.


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A petition to the California Superior Court filed on October 31, 2016 and denied on

A petition to the California Court of Appeal filed on July 13, 2017 and denied on
October 13, 2017.

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A petition to the California Supreme Court filed on October 30, 2017 and denied on
January 17, 2018.

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See Mot. at 2, ECF No. 17. There are two plausible arguments why these petitions might toll the

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limitations period, but neither can succeed on this record.

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First, all three petitions might be “part of a single round of habeas relief.” Banjo,

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614 F.3d at 968. That is, they might all be part of one series of petitions filed step-by-step up the
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appellate ladder. Cf. Saffold, 536 U.S. at 219–21. Mr. Givens’s state-court filings suggest he

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viewed these petitions this way. See Objections at 3–4, ECF No. 36. It is also the state’s

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interpretation. See, e.g., id.

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If these petitions are understood as one single round, the limitations period would not be

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tolled because Mr. Givens waited almost seven months to file his second petition after his first

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petition was denied. Such a long delay bars the assumption that a single “application” was

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actually “pending” under the tolling statute. See Evans v. Chavis, 546 U.S. 189, 201 (2006);

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Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam). This conclusion extends to

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the second and third claims as well. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When

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a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for purposes

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of § 2244(d)(2).” (quoting Saffold, 536 U.S. at 226 (alterations in original)). Only if the delay is

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“reasonable” could it be excused. See Saffold, 536 U.S. at 226. The delay here might be

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reasonable if it were much shorter, in the range of 30 to 60 days rather than 205, or if Mr. Givens

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had not received notice his petition had been denied, see id.; Velasquez v. Kirkland, 639 F.3d 964,

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967–68 (9th Cir. 2011); Givens makes no such claim. The Ninth Circuit has rejected

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explanations like those Mr. Givens has offered, i.e., that he needed more time for research and

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writing and was delayed while obtaining documents from his trial attorney. See, e.g., Velasquez,

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639 F.3d at 968 (holding delay unreasonable even though crucial witness could not be found—a

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“relatively weak explanation”); Banjo, 614 F.3d at 970 (rejecting petitioner’s explanation he was

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delayed while “continuing to develop evidence”); Waldrip v. Hall, 548 F.3d 729, 737 (9th Cir.

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2008) (prison lockdown barring access to law library did not justify delay). District courts have

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occasionally permitted delays that allowed a petitioner to rewrite legal briefs, but the delays in

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these cases were uniformly shorter. See, e.g., Osumi v. Giurbino, 445 F. Supp. 2d 1152, 1158–59

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(C.D. Cal. 2006), aff’d, 312 F. App’x 23 (9th Cir. 2008) (finding three-month delay reasonable).

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The second way to view Mr. Givens’s petitions is to interpret his delay not as a delay but

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as a break between one round of petitions and another. Interpreted that way, his second petition

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began a new round that, together with the third petition, tolled the limitations period. He filed his

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third petition quickly after the second was denied. This interpretation is what the Magistrate
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Judge recommends. See Prev. F&Rs at 4, ECF No. 27; F&Rs at 2–4, ECF No. 35. But that

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interpretation appears to conflict with the Magistrate Judge’s findings that four claims in the

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second petition were “copied verbatim, or nearly so,” from the first petition; that all of the

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“claims headings were generally the same” in both petitions; and that the claims in the second

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petition broadly “resemble[d]” those in the first petition. F&Rs at 2.

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The Magistrate Judge reconciled this conflict by finding that the first and second petitions

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were actually both original petitions even though they were filed sequentially in ascending order.

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In the Magistrate Judge’s assessment, Mr. Givens’s claims had changed: they were “materially

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different.” Id. The court is aware of no authority supporting a “materially different” separate-

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petitions standard, and the Magistrate Judge has not pointed to any. To the contrary, the Ninth

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Circuit has held that state court petitions are part of the same “round of appellate review even

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when the contents of the petitions change.” Biggs v. Duncan, 339 F.3d 1045, 1048 n.1 (9th Cir.

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2003); see also Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012).

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To be sure, two different appellate rounds might overlap, and if one petition is untimely, it

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does not project its untimeliness onto an otherwise timely overlapping round. See Stancle,

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692 F.3d at 956 (citing Delhomme v. Ramirez, 340 F.3d 817, 819–20 (9th Cir. 2003) (per curiam),

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abrogated on other rounds by Evans, 546 U.S. 189). But this is not a case of overlapping

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petitions with separate claims. As the Magistrate Judge found, Mr. Givens gave his claims

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“generally the same” names, and the claims in his second petition resembled those in the first.

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F&Rs at 2. Even if it were possible to interpret Mr. Givens’s petitions as separate and

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overlapping, only the new claims that he added to his second petition could theoretically be

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timely. See Delhomme, 340 F.3d at 820 (“[E]ach time a petitioner files a new habeas petition at

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the same or a lower level . . . the subsequent petition . . . triggers an entirely separate round of

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review.”). He has not shown he is pursuing only these new claims in this federal court.

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The court therefore declines to adopt the Magistrate Judge’s recommendation. The delay

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between Mr. Givens’s state-court petitions was not reasonable, so the limitations period was not

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tolled. Any claims in Mr. Givens’s amended federal petition, ECF No. 7, that do not relate back

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to the claims in his original federal petition, ECF No. 1, are dismissed. This matter is referred

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back to the assigned Magistrate Judge for further proceedings. This order resolves ECF No. 17.

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IT IS SO ORDERED.

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DATED: November 2, 2020.

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