Williams v. Cate

Filing 8

ORDER DENYING MOTION TO DISMISS; TO SHOW CAUSE by Judge William Alsup denying 5 Motion to Dismiss; granting 6 Motion for Leave to File Excess Pages (Attachments: # 1 Certificate/Proof of Service) (dtS, COURT STAFF) (Filed on 12/7/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 12-1355 WHA (PR)

Petitioner,
For the Northern District of California

United States District Court

CHARLES WILLIAMS,
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ORDER DENYING MOTION TO
DISMISS; TO SHOW CAUSE

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v.
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MATTHEW CATE,

(Docket Nos. 5, 6)

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Respondent.
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INTRODUCTION
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Petitioner, a California prisoner proceeding pro se, filed this habeas case under 28
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U.S.C. 2254. Respondent was ordered to show cause why the petition should not be granted.
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Respondent has filed a motion to dismiss on statute of limitations grounds. Petitioner opposes
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respondent’s argument in both his petition and in an opposition, and respondent filed a reply
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brief. For the reasons discussed below, respondent’s motion to dismiss is DENIED, and
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respondent is ordered to file an answer responding to the petition.
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STATEMENT
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The following facts are not disputed by the parties. In 2007, petitioner was sentenced in
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Santa Clara County Superior Court to a term of 45 years to life, plus a consecutive term of 12
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years, in state prison based upon his conviction for various sexual offenses. The California
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Court of Appeal affirmed the conviction on October 30, 2008, and on January 28, 2009, the
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California Supreme Court denied a petition for review.

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Under the “mailbox rule” petitioner’s state and federal court petitions are deemed filed

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on the date they are signed, which is when they are presumably given to prison authorities for

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mailing. See Houston v. Lack, 487 U.S. 266, (1988); Anthony v. Cambra, 236 F.3d 569, 575

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(9th Cir. 2000). Consequently, throughout this order petitioner’s state and federal court

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petitions are described as filed on the date that they were signed.

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Petitioner filed his first habeas petition in the Santa Clara County Superior Court on

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March 11, 2010, and it was denied three months later on June 11, 2010. He then filed a habeas

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petition in the California Court of Appeal on June 24, 2010, and it was denied on August 17,

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2010.
Ten days later, on August 27, 2010, petitioner filed a habeas petition in federal court.

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For the Northern District of California

United States District Court

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See Williams v. Cate, No. C 10-4277 WHA (PR). Respondent moved to dismiss the petition

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because it contained both exhausted and unexhausted claims. In his response to the motion,

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petitioner requested a stay while he exhausted his unexhausted claims in the state court. On

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June 16, 2011, the motion to dismiss was granted, and the request for a stay was denied because

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petitioner did not show good cause for not exhausting his claims earlier. See Rhines v. Weber,

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544 U.S. 269, 277-78 (2005). Petitioner was given the option of either deleting the unexhausted

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claims or dismissing the case without prejudice. Petitioner did not elect between the two

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options and, as he had been cautioned, the case was dismissed without prejudice on August 11,

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2011. He second federal habeas petition, on October 15, 2011 (Case No. C 11-5208 WHA

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(PR)), that set forth only his one exhausted claim. That petition was dismissed without

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prejudice on December 20, 2011, due to petitioner’s failure to pay the filing fee or file a timely

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in forma pauperis (“IFP”) application.

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On October 25, 2011, petitioner filed a habeas petition in the California Supreme Court,

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and it was denied on March 21, 2012. In the meantime, on March 1, 2012, petitioner filed the

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instant federal petition.

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ANALYSIS

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Respondent contends that the petition is barred by the statute of limitations. The

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on April 24,
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1996, and imposed for the first time a statute of limitations on petitions for a writ of habeas

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corpus filed by state prisoners. Under AEDPA, prisoners challenging non-capital state

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convictions or sentences must file petitions for relief within one year of the latest of the date on

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which: (A) the judgment became final after the conclusion of direct review or the time passed

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for seeking direct review; (B) an impediment to filing an application created by unconstitutional

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state action was removed, if such action prevented petitioner from filing; (C) the constitutional

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right asserted was recognized by the Supreme Court, if the right was newly recognized by the

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Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate

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of the claim could have been discovered through the exercise of due diligence. 28 U.S.C.

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For the Northern District of California

United States District Court

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2244(d)(1).
The parties agree that the applicable provision of section 2244(d)(1) in this case is

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subsection (A), such that the limitations period began to run when the time for seeking direct

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review expired. The California Supreme Court denied the petition for direct review on January

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28, 2009. Petitioner then had ninety days, or until April 28, 2009, in which to file a petition for

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a writ of certiorari in the United States Supreme Court. Although he did not file such a petition,

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that is the date the time for seeking direct review expired under Section 2244(d)(1)(A), and

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therefore the date the one-year limitations period started. See Wixom v. Washington, 264 F.3d

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894, 897 (9th Cir. 2001). Absent tolling, the limitations period would expire one year later, on

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April 28, 2010.

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The one-year statute of limitations in AEDPA is tolled under Section 2244(d)(2) for the

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“‘time during which a properly filed application for state post-conviction or other collateral

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review with respect to the pertinent judgment or claim is pending.’” Dictado v. Ducharme, 244

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F.3d 724, 726 (9th Cir. 2001) (quoting 28 U.S.C. 2244(d)(2)). The limitations period was tolled

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on March 11, 2010, when petitioner filing his first state habeas petition in Santa Clara County

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Superior Court, at which time it had run for 316 days and 49 days remained. The question is

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how long the limitations period was tolled under Section 2244(d)(2). Under Section

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2244(d)(2), the limitations period is tolled not only while the petition is actually pending in the

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state court, but also during time gap between a lower state court’s decision denying a habeas
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petition and the filing of a new petition in a higher court, as long as the petitioner did not

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"unreasonably delay" in seeking review in the higher court. Carey v. Saffold, 536 U.S. 214,

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221-23 (2002); accord Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Tolling continued

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in this case, therefore, during the short gap between the denial of the petition by the superior

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court on June 11, 2010, and filing a new petition in the California Court of Appeal thirteen days

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later, because there was no unreasonable delay. Tolling continued at least until the California

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Court of Appeal denied the petition on August 17, 2010.

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Over 14 months elapsed before petitioner filed his next state habeas petition in the

consider such a delay reasonable. This issue is dispositive because if the delay was reasonable,

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For the Northern District of California

California Supreme Court on October 25, 2011. The question is whether the state courts would

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United States District Court

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then the limitations period would be tolled under Section 2244(d)(2) during the 14-month gap

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as well as while the petition was pending in the California Supreme Court, or until March 21,

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2012. This would render the instant petition, filed 20 days earlier, timely. If a state court

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clearly rules that a petitioner’s delay was “unreasonable,” that answers the question and gap

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tolling is not available. Carey, 536 U.S. at 226. Here, the California Supreme Court did not

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clearly indicate whether or not the petition was timely, and thus did not clearly find the 14-

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month delay unreasonable. This does not automatically mean that the petition was timely or

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that the delay was reasonable either, however. See Evans v. Chavis, 546 U.S. 189, 194-95

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(2006). Rather, "the federal court must decide whether the filing of the request for state-court

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appellate review (in state collateral review proceedings) was made within what California

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would consider a 'reasonable time.'" Id. at 195.

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Noting that six months is far longer than the 30 to 60 days that most states provide for

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filing an appeal, the Supreme Court in Evans held that an unjustified or unexplained 6-month

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delay between post-conviction applications in California is not “reasonable” and does not fall

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within Carey’s definition of the term “pending.” Id. at 201. If a six-month delay would not be

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considered reasonable under California law, a 14-month delay certainly would not either. See

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also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (finding 91 and 81 days delay

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between state habeas petitions was “unreasonable” with no indications from the California
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courts to the contrary); Chaffer v. Prosper, 592 F.3d 1046, 1048 n.1 (9th Cir. 2010) (per

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curiam) (unexplained, and hence unjustified, delays of 115 and 101 days between California

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habeas petitions were not reasonable); Banjo v. Ayers, 614 F.3d 964, 970 (9th Cir. 2010)

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(finding delay of 146 days between successive petitions not reasonable, so later petition not

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“timely filed”); Waldrip v. Hall, 548 F.3d 729, 735-36 (9th Cir. 2008) (holding delay of at least

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eight months not “reasonable” and thus not subject to tolling); Gaston v. Palmer, 447 F.3d

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1163, 1167 (9th Cir. 2006) (finding no “gap tolling” during delays of 10, 15 and 18 months

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between California habeas petitions). Consequently, there is no gap tolling of the limitations

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period under Section 2244(d)(2) during the 14-month interval between the habeas petitions in
the California Court of Appeal and the California Supreme Court. Tolling under Section

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For the Northern District of California

United States District Court

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2244(d)(2) ended, therefore, when the California Court of Appeal denied the petition on August

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17, 2010. As there were only 49 days left of the limitations period at that point, the limitations

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period would expire on October 5, 2010, absent further tolling.

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Petitioner argues that he is entitled to equitable tolling. The Supreme Court has

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determined that AEDPA’s statute of limitations is subject to equitable tolling in appropriate

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cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). “[A] ‘petitioner’ is ‘entitled to

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equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2)

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that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at

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2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005)). The prisoner also must

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show that the extraordinary circumstances “were the cause of his untimeliness.” Spitsyn v.

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Moore, 345 F.3d 796, 799 (9th Cir. 2003).

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There is no question that petitioner has been pursuing his rights diligently. Each time a

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petition was denied, he promptly filed a new petition, albeit not always in the proper place.

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After the superior court denied his petition, he filed a petition in the state appellate court 13

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days later. After that petition was denied, he filed his first federal petition only 10 days later.

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When the federal petition was dismissed, he could not proceed immediately because the inmate

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who had been litigating for him was placed on lock-down and petitioner did not have access to

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his habeas records (Opp. Ex. E). He did, however, quickly (on August 23, 2011, eight days
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habeas materials (ibid.). The procedure for obtaining such records from the court took several

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weeks, but as soon as he received them, he sent his habeas petition to the California Supreme

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Court (it was originally received on October 7, 2011) (Opp. Ex. F). He simultaneously

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attempted to preserve his federal habeas remedy by filing a second federal habeas petition, on

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October 15, 2011 (Case No. C 11-5208 WHA (PR)), that set forth only his one exhausted claim

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(Opp. Ex. G). That petition was dismissed without prejudice on December 20, 2011, due to

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petitioner’s failure to pay the filing fee or file a timely in forma pauperis (“IFP”) application

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(Opp. Ex. H). It appears that petitioner did submit certain IFP forms on November 18, 2012,

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that would have been timely, but they were filed in his previous case (No. C 10-4277 WHA

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For the Northern District of California

after the habeas petition was dismissed) wrote to the clerk requesting copies of his federal

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United States District Court

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(PR) (docket number 18)). Petitioner’s receipt of the dismissal order in Case No. 11-5208

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WHA (PR) was delayed due to a large-scale transfer of inmates within his prison, but

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“immediately” after he received it he filed the instant petition on March 1, 2012. In sum,

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petitioner diligently and consistently pursued his claims and his rights over a period of two

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years from the time he filed his first state habeas petition within the limitations period to the

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filing of the instant federal petition.

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The issue that remains is why, despite his diligence, the instant petition was not timely

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filed. As discussed, equitable tolling requires that the reason for untimeliness be an

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“extraordinary circumstance.” Holland, 130 S. Ct. at 2562. The petition is not timely here at

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least partially because petitioner took the wrong procedural step on several critical occasions.

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First, after the California Court of Appeal denied his habeas petition, he should have filed a

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habeas petition in the California Supreme Court instead of in federal court. Had he done so, the

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limitations period would have remained tolled under Section 2244(d)(2) and his federal petition

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would have been timely (as well as completely exhausted). Later, when respondent’s motion to

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dismiss his first federal petition was granted, he was given the option of pursuing his exhausted

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claim in federal court by amending his petition. Instead, he allowed his petition to be dismissed

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and then filed a new federal habeas action with his exhausted claim. It is clear that these

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mistakes and their associated delays are attributable to petitioner’s lack of legal expertise in the
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sometimes complex procedures for federal and state habeas claims, his reliance upon an inmate

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who was sent to solitary confinement, and his limited English speaking abilities.

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Neither the lack of legal expertise nor the unavailability of his inmate helpers on their

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own constitute extraordinary circumstances that warrant equitable tolling on their own. See

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Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (lack of legal expertise not enough on

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its own to warrant equitable tolling); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010)

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(per curiam) (prisoner’s pro se status, law library missing a “handful” of reporter volumes, and

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reliance on inmate helpers who were transferred or too busy to attend to his petitions are not

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extraordinary circumstances “given the vicissitudes of prison life”). Here, however, petitioner
also has limited English language ability, as he is from Sierra Leone, which made it more

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For the Northern District of California

United States District Court

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difficult to understand the intricacies of federal and state habeas procedures. See Mendoza v.

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Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (equitable tolling could be available where

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petitioner lacked "English language ability," access to Spanish-language legal materials, or

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assistance of a translator, and he acted with due diligence). This made it necessary for him to

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rely upon other inmates to pursue his claims, and therefore be subject to their missteps and

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unavailability.

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In addition, a substantial portion of the delay can be attributed to the court and/or prison

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officials. Petitioner’s first federal habeas petition was pending for nearly a year before it was

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dismissed without prejudice. At the time he filed that petition, he had approximately 42 days

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left of his limitations period. Had the federal petition been resolved more expeditiously,

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petitioner could have proceeded to the California Supreme Court and then returned to federal

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court before the limitations period expired. After the federal petition was dismissed, he had to

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wait several weeks to receive copies of the federal court records. The dismissal of his second

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federal petition was at least partially caused by either the court filing certain IFP forms in the

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wrong case or by prison officials’ failure to clearly indicate the case in which they should be

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filed. Further delays occurred in his receipt of the dismissal of his second federal petition when

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prison officials moved him and other inmates around within his prison.

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In light of petitioner’s unusual diligence in pursuing his claims, his limited English
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language ability, the time it took for the federal court to resolve and process his prior federal

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petitions, and other circumstances caused by prison officials’ actions that delayed petitioner’s

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filing of the instant federal petition, petitioner is entitled to equitable tolling of the limitations

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period, at least from the time that time that the California Court of Appeal denied his habeas

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petition to the time the instant petition was filed. Consequently, the instant petition is timely.

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In light of this conclusion, petitioner’s alternate argument that the untimeliness of his petition

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should be excused based upon his “actual innocence” of the underlying charges need not be

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reached.

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For the Northern District of California

United States District Court

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CONCLUSION
Respondent’s motion to dismiss (dkt. 5) is DENIED. The motion to file a brief with
excessive pages (dkt. 6) is GRANTED.
Respondent shall file with the court and serve on petitioner, within ninety-one days of

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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted based on the claims found cognizable herein. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within twenty-eight days of the date the answer is filed.
IT IS SO ORDERED.

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Dated: December

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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