Zaccardi v. Arnold

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 7/13/17 granting 3 Motion to Proceed IFP. Within 30 days from the date of this order, petitioner shall show cause why this action should not be dismissed as barred by the statute of limitations. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALBERT ZACCARDI,

12
13
14

No. 2:17-cv-1405 KJN P

Petitioner,
v.

ORDER TO SHOW CAUSE

E. ARNOLD,

15

Respondent.

16
17
18

I. Introduction
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

19

corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

20

II. Request to Proceed In Forma Pauperis

21

Examination of the in forma pauperis application reveals that petitioner is unable to afford

22

the costs of suit. Accordingly, the application to proceed in forma pauperis is granted. See 28

23

U.S.C. § 1915(a).

24

III. Legal Standards

25

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

26

petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

27

petitioner is not entitled to relief in the district court. . . .” Id. Courts have authority to address

28

statute of limitations sua sponte, but the court is required to give the petitioner notice and an
1

1

opportunity to respond before dismissing the case. See Herbst v. Cook, 260 F.3d 1039, 1043-44,

2

& n.3 (9th Cir. 2001).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was
enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:
A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run from the latest of –
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the Constitution
or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2244(d)(1).
Section 2244(d)(2) provides that “the time during which a properly filed application for

18

State post-conviction or other collateral review with respect to the pertinent judgment or claim is

19

pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). Generally,

20

this means that the statute of limitations is tolled during the time after a state habeas petition has

21

been filed, but before a decision has been rendered. Nedds v. Calderon, 678 F.3d 777, 780 (9th

22

Cir. 2012). However, “a California habeas petitioner who unreasonably delays in filing a state

23

habeas petition is not entitled to the benefit of statutory tolling during the gap or interval

24

preceding the filing.” Id. at 781 (citing Carey v. Saffold, 536 U.S. 214, 225-27 (2002)).

25

Furthermore, the AEDPA “statute of limitations is not tolled from the time a final decision is

26

issued on direct state appeal and the time the first state collateral challenge is filed because there

27

is no case ‘pending’ during that interval.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999),

28

overruled on other grounds by Carey, 536 U.S. at 214. In Carey, the United States Supreme
2

1

Court held that the limitation period is statutorily tolled during one complete round of state post-

2

conviction review, as long as such review is sought within the state’s time frame for seeking such

3

review. Id., 536 U.S. at 220, 222-23.

4

State habeas petitions filed after the one-year statute of limitations has expired do not

5

revive the statute of limitations and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820,

6

823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that

7

has ended before the state petition was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

8

III. Chronology

9

Petitioner was convicted of second degree murder with use of a firearm on August 23,

10

1983, and sentenced to 17 years to life. (ECF No. 1 at 1.) Petitioner filed an appeal, which was

11

denied by the appellate court, and his petition for review was also denied by the California

12

Supreme Court. Petitioner states he cannot recall the dates due to the passage of time.

13

Petitioner did not file a petition for certiorari in the United States Supreme Court, and

14

states he filed no other collateral challenges in any other court, state or federal. (ECF No. 1 at 2.)

15

Petitioner constructively filed the instant action on July 5, 2017. (ECF No. 1 at 9.)

16

Petitioner raises two grounds in his petition:

17

1. Petitioner’s second degree murder sentence violates due process because he was

18

convicted pursuant to a penal code statute which defines and dictates second degree murder by

19

ten words.

20

2. Petitioner’s continued imprisonment violates the Eighth Amendment because his

21

sentence is not proportional.

22

IV. Appellate Courts Case Information1

23

The California Courts official website reflects petitioner filed the following cases:

24
25
26
27
28

1

The court may take judicial notice of facts that are “not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on
official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir.
2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v.
Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California
state courts is www.courts.ca.gov.
3

1

1. On July 8, 2010, petitioner filed a petition for writ of habeas corpus in the California

2

Court of Appeal for the Third Appellate District. In re Albert Zaccardi on Habeas Corpus, Case

3

No. C065474 (Cal. App. 3). The appellate court denied the petition on July 22, 2010. Id.

4

2. On February 21, 2014, petitioner filed a petition for writ of habeas corpus in the

5

California Court of Appeal for the Third Appellate District. In re Albert Zaccardi on Habeas

6

Corpus, Case No. C075817 (Cal. App. 3). The appellate court denied the petition on March 6,

7

2014. Id.

8
9

3. On January 26, 2017, petitioner filed a petition for writ of habeas corpus in the
California Court of Appeal for the Third Appellate District. In re Albert Zaccardi on Habeas

10

Corpus, Case No. C065474 (Cal. App. 3). The appellate court denied the petition on February 3,

11

2017. Id.

12

4. On August 27, 2010, petitioner filed a petition for writ of habeas corpus in the

13

California Supreme Court. Zaccardi (Albert) on Habeas Corpus, Case No. S185849 (Cal. S. Ct.).

14

The California Supreme Court denied the petition on March 16, 2011. Id.

15

5. On April 19, 2017, petitioner filed a petition for writ of habeas corpus in the California

16

Supreme Court. Zaccardi (Albert) on Habeas Corpus, Case No. S241367 (Cal. S. Ct.). On June

17

14, 2017, the California Supreme Court denied the petition without prejudice to any relief

18

petitioner might be entitled after the California Supreme Court decides Butler on Habeas Corpus,

19

S237014.2

20

////

21
22
23

2

In Butler, the California Supreme Court Case Summary notes that the case is fully briefed, and
identifies the pending issues as:
Petition for review after the Court of Appeal denied a motion to
modify an order implementing a settlement agreement. This case
presents the following issue: Should the Board of Parole Hearings
be relieved of its obligations arising from a 2013 settlement to
continue calculating base terms for life prisoners and to promulgate
regulations for doing so in light of the 2016 statutory reforms to the
parole suitability and release date scheme for life prisoners, which
now mandate release on parole upon a finding of parole suitability?

24
25
26
27
28

Id.
4

1

V. Discussion

2

Here, petitioner’s conviction became final prior to the enactment of AEDPA. State

3

prisoners whose convictions became final prior to AEDPA’s enactment, had a one-year grace

4

period in which to file their petitions. Calderon v. United States Dist. Ct. (Beeler), 128 F.3d

5

1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist.

6

Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc). Thus, petitioner was required to

7

challenge his conviction on or before April 24, 1997. Patterson v. Stewart, 251 F.3d 1243, 1245

8

(9th Cir. 2001). Petitioner filed the instant petition on July 5, 2017.

9

Petitioner does not appear to contend that he is entitled to a later trigger date under 28

10

U.S.C. § 2244(d)(1)(B) or (C), and the petition provides no such basis. Petitioner does not

11

contend that he was impeded from filing his federal petition by unconstitutional state action and

12

thereby entitled to a later trigger date under § 2244(d)(1)(B). Moreover, petitioner asserts no

13

basis to contend that he is entitled to a later trigger date under § 2244(d)(1)(C) because his claim

14

is based on a federal constitutional right that was initially recognized by the United States

15

Supreme Court subsequent to the date his conviction became final and was made retroactively

16

applicable to cases on collateral review.

17

Moreover, for purposes of § 2244(d)(1)(D), the statute of limitations begins to run when a

18

petitioner “knows (or through diligence could discover) the important facts, not when the

19

[petitioner] recognizes their legal significance.” See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3

20

(9th Cir. 2001) (citation omitted). Here, petitioner identifies no such newly-discovered facts.

21

The burden of demonstrating that the AEDPA’s one-year limitations period was

22

sufficiently tolled, whether statutorily or equitably,3 rests with the petitioner. See, e.g., Pace v.

23
24
25
26
27
28

3

In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court held that the AEDPA’s
one-year limitations period is subject to equitable tolling in appropriate cases. However, in order
to be entitled to equitable tolling, the petitioner must show both that (1) he has been pursuing his
rights diligently and (2) some extraordinary circumstance stood in his way and prevented his
timely filing. Id. (quoting Pace, 544 U.S. at 418). The Ninth Circuit has held that the Pace
standard is consistent with the Ninth Circuit’s “sparing application of the doctrine of equitable
tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Thus, “[t]he
petitioner must show that ‘the extraordinary circumstances were the cause of his untimeliness and
that the extraordinary circumstances made it impossible to file a petition on time.’” Porter v.
5

1

DiGuglielmo, 544 U.S. 408, 418 (2005); Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009);

2

Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The state court petitions filed after the

3

limitation period expired in 1997 cannot revive the statute of limitations, and provide no statutory

4

tolling. Ferguson, 321 F.3d at 823. In addition, given petitioner filed his federal petition over 20

5

years after the limitations period expired, it is unlikely he would be entitled to sufficient equitable

6

tolling to render the instant petition timely.

7

Finally, to the extent petitioner is attempting to seek relief under Butler, such effort is

8

unavailing. First, any such claim would be unexhausted. The exhaustion of state court remedies

9

is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A

10

petitioner satisfies the exhaustion requirement by providing the highest state court with a full and

11

fair opportunity to consider all claims before presenting them to the federal court. Picard v.

12

Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert.

13

denied, 478 U.S. 1021 (1986).

14

The official records of the California Supreme Court reflect that petitioner’s petition was

15

denied without prejudice to renewal following a decision Butler, which is pending decision at this

16

time. Thus, if petitioner wishes to pursue relief reserved pursuant to the order of the California

17

Supreme Court, he must await the decision in Butler and then re-file his petition in the California

18

Supreme Court. Second, in any event, it is does not appear that any decision rendered in Butler

19

would offer petitioner a later trigger date under § 2244(d)(1)(C). Section 2244(d)(1)(C) requires

20

that a prisoner’s federal claim be based on a federal constitutional right that was initially

21

recognized by the United States Supreme Court subsequent to the date his conviction became

22
23
24
25
26
27
28

Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (as amended) (quoting Ramirez v. Yates, 571 F.3d
993, 997 (9th Cir. 2009)). “Indeed, ‘the threshold necessary to trigger equitable tolling [under the
AEDPA] is very high, lest the exceptions swallow the rule.’” Miranda, 292 F.3d at 1066 (citation
omitted). Consequently, as the Ninth Circuit has recognized, equitable tolling will be justified in
few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (as amended); see also WaldronRamsey, 556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary circumstances’ necessarily
suggests the doctrine’s rarity, and the requirement that extraordinary circumstances ‘stood in his
way’ suggests that an external force must cause the untimeliness, rather than, as we have said,
merely ‘oversight, miscalculation or negligence on [the petitioner’s] part, all of which would
preclude the application of equitable tolling.’” (alteration in original) (citation omitted)).
6

1

final and was made retroactively applicable to cases on collateral review by the United States

2

Supreme Court. Therefore, any holding by the California Supreme Court would not offer

3

petitioner a later trigger date for the limitations period.

4

In conclusion, because petitioner’s conviction became final before the enactment of

5

AEDPA, and the limitations period expired on April 24, 1997, petitioner’s July 15, 2017 federal

6

petition is barred by the statute of limitations. In an abundance of caution, petitioner is ordered to

7

show cause why this action should not be dismissed as time-barred.

8

In accordance with the above, IT IS HEREBY ORDERED that:

9

1. Petitioner’s motion to proceed in forma pauperis is granted; and

10

2. Within thirty days from the date of this order, petitioner shall show cause why this

11

action should not be dismissed as barred by the statute of limitations.

12

Dated: July 13, 2017

13
14
/cw/zacc1405.osc

15
16
17
18
19
20
21
22
23
24
25
26
27
28
7