Jansen v. Warden et al

Filing 19

ORDER OF DISMISSAL 14 18 (Illston, Susan) (Filed on 6/13/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL JANSEN,

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No. C 12-4695 SI (pr)

Petitioner,

ORDER OF DISMISSAL

v.

United States District Court
For the Northern District of California

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B. GOWER, Warden,
Respondent.
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INTRODUCTION

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Michael Jansen, an inmate at the California Correctional Center in Susanville, filed this

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pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court found two

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claims in the habeas petition cognizable and ordered respondent to show cause why the petition

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would not be granted. Respondent then filed a motion to dismiss on the grounds of untimeliness

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and non-exhaustion of state judicial remedies, which Jansen opposed. For the reasons discussed

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below, the action will be dismissed as barred by the statute of limitations.

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BACKGROUND

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Jansen pled nolo contendere and was convicted in Sonoma County Superior Court of

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inflicting corporal injury upon a spouse or cohabitant (a felony), making criminal threats (a

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felony), and threatening a police officer (a misdemeanor). On November 9, 2009, Jansen was

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sentenced to six years and eight months in state prison. Execution of the prison sentence was

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suspended and Jansen was placed on formal probation. He did not appeal.

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On July 11, 2011, probation was revoked and the previously suspended prison sentence

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was ordered executed.1 Jansen appealed the restitution orders. The California Court of Appeal

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ordered the restitution fines modified in an opinion filed on July 26, 2012 in Case Ns. A132681

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and A133220. No petition for review to the California Supreme Court was filed.

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On August 2, 2011, Jansen filed a state habeas petition in the Sonoma County Superior

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Court asserting that his no-contest plea was invalid because he was under duress, and that his

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motion to vacate his judgment due to an invalid plea had been denied improperly. The Sonoma

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County Superior Court denied the petition on October 3, 2011.

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On October 26, 2011, Jansen filed a habeas petition in the California Court of Appeal,
raising the same issues. The petition was denied on November 3, 2011.

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On November 28, 2011, Jansen filed a habeas petition in the California Supreme Court,

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raising the same issues. The petition was denied on March 21, 2012. The petition did not assert

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an ineffective-assistance-of-counsel claim.

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Jansen then filed a federal habeas petition. His federal petition has an August 21, 2012

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signature date and came to the court in an envelope dated August 24, 2012. The petition was

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stamped "filed" on September 7, 2012.

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Due to Jansen's status as a prisoner proceeding pro se, he receives the benefit of the

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prisoner mailbox rule, which deems most documents filed when they are given to prison officials

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to mail to the court rather than the day the document reaches the courthouse. See Stillman v.

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Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). For purposes of the present motion, the federal

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petition is deemed filed as of the date of the signature on it.

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Jansen's probation was revoked and reinstated several times between its imposition in
November 2009 and the final revocation in July 2011, but those revocations are not relevant to
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DISCUSSION

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A.

Propriety Of Motion To Dismiss

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Before turning to the merits of respondent's motion, it is necessary to address Jansen's

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argument that the motion to dismiss was improper because the defects in his petition were not

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"clear from the face of the [petition]." Docket # 16, p. 2. There is no requirement that a

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petition's defect be patent in order to be challenged via a motion to dismiss. Respondent's

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motion to dismiss was permissible. See White v. Lewis, 874 F.2d 599, 600, 602-03 (9th Cir.

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1989). "While there may be circumstances where concerns about delay and efficiency militate

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in favor of ordering a full scale answer," the Rules Governing Habeas Corpus Cases In The U.S.

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District Courts and the advisory committee's notes thereto do not impose a " blanket bar against

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motions to dismiss without regard to their merit." Id. at 603. The court is receptive to a

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respondent raising threshold problems (such as lack of jurisdiction, failure to exhaust, improper

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venue, lack of custody, mootness, and untimeliness) by motion rather than in the answer because

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it often is a more efficient process for the litigants and the court. When the court sees a

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procedural problem in its initial review of a habeas petition, it often invites a motion to dismiss

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rather than an answer. However, as here, there often is not enough information in the petition

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to alert the court to the existence of a potential procedural problem and the court issues an order

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to show cause why the writ should not be granted. By doing so, the court does not intend to

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preclude respondent from moving to dismiss the petition for a threshold procedural problem.

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B.

The Petition Is Untimely

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Petitions filed by prisoners challenging non-capital state convictions or sentences must

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be filed within one year of the latest of the date on which: (1) the judgment became final after

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the conclusion of direct review or the time has passed for seeking direct review; (2) an

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impediment to filing an application created by unconstitutional state action was removed, if such

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action prevented petitioner from filing; (3) the constitutional right asserted was recognized by

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the Supreme Court, if the right was newly recognized by the Supreme Court and made

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retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been

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discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

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Selection of the date for the commencement of the limitations period depends on the

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manner of imposition of the sentence in a case involving probation. In California, a court can

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(1) suspend the imposition of a sentence or (2) impose a sentence while suspending execution

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of it during the pendency of probation. In the first scenario (i.e., suspended imposition), there

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is no final judgment to appeal. See People v. Howard, 16 Cal. 4th 1081, 1087 (Cal. 1997). In

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the second scenario (i.e., suspended execution), there is a judgment that is immediately

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appealable and appeal must be taken from the original imposition of the sentence. See id.

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Jansen's sentence was of the second sort, i.e., a sentence was imposed but its execution

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was suspended while he was on probation.2 There was an appealable judgment as of November

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9, 2009, when the Sonoma County Superior Court imposed the 6 year, 8 month prison sentence

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while suspending execution of it during the pendency of probation. Jansen's time to appeal

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started immediately. As of November 9, 2009, Jansen "had the right to appeal at that time and

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raise all matters going to the validity of his . . . conviction, and because he failed to do so," he

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generally could not in a later appeal from the decision to revoke probation raise claims of error

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in the original plea proceedings or at the trial that led to the sentence that had been imposed but

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suspended. People v. Munoz, 51 Cal. App. 3d 559, 563 (Cal. Ct. App. 1975). Munoz does note

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an exception that allows a defendant to assert an ineffective-assistance-of-counsel claim in an

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appeal from the revocation of probation, see id., but Jansen's appeal after probation revocation

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did not assert an IAC claim with regard to the original sentence or conviction.

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Jansen's judgment became final on January 8, 2010, sixty days after entry of the judgment

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by oral announcement as that is the date on which the time for him to file an appeal expired. See

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Cal. Penal Code § 1237(a); Cal. Rule of Court 8.308; People v. Thomas, 52 Cal. 2d 521, 529 n.3

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On the "Felony Probation/Conditional Sentence" form filed November 9, 2009 in Sonoma
County Superior Court, choice 5 ("Imposition of sentence suspended") was not circled and choice # 10
("Execution of sentence suspended") was circled. See Resp. Ex. A at § S. The form also had specific
sentences written for the various crimes, noting a total aggregate term of 6 years and 8 months. See id.
The superior court imposed "formal probation" of 48 months. See id. at § "G".
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(Cal. 1959) ("judgment is rendered when sentence is orally announced"); see also Bowen v. Roe,

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188 F.3d 1157, 1159 (9th Cir. 1999) (direct review period includes the period during which the

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petitioner could have sought further direct review, regardless of whether he did so).

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Jansen argues that his time to appeal did not start until "the order was made denying the

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motion to vacate the judgment on July 11, 2011." Docket # 16, p. 2. This argument fails to

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persuade because, under the reasoning in Munoz and Howard, the time to appeal the conviction

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and sentence imposed started on November 9, 2009, when the court orally announced Jansen's

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sentence. The later revocation of probation and imposition of the prison terms did not start anew

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the one-year deadline for a challenge to the November 9, 2009 imposition of sentence. See

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generally Prendergast v. Clements, 699 F.3d 1182, 1186-87 (10th Cir. 2012) (timely challenge

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to resentencing upon revocation of Colorado probation did not permit untimely challenges to the

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original conviction); Caldwell v. Dretke, 429 F.3d 521, 526-29 (5th Cir. 2006) (Texas state court

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order of deferred adjudication community supervision or straight probation was a final judgment

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for purposes of triggering the federal habeas limitations period); see id. at 529 ("Permitting a

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petitioner to bring a habeas corpus petition challenging an order of probation as many as ten

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years after he was originally placed on probation would be contrary to congressional intent" in

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the AEDPA); Hanington v. Wengler, 2013 WL 828219, *3 (D. Idaho 2013) (federal petition

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untimely when it was not filed within one year of Idaho trial court's imposition of a "withheld

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judgment, a suspended prison sentence, and probation" even though it was within a year after

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the revocation of the withheld judgment two years later).

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The presumptive deadline for Jansen to file his federal petition was January 7, 2011. He

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missed that deadline by many months, so unless he qualifies for substantial tolling, the petition

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is untimely.

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The one-year limitations period is tolled for the "time during which a properly filed

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application for State post-conviction or other collateral review with respect to the pertinent

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judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Jansen receives no statutory tolling

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because he filed no state habeas petitions before the limitations period expired. His state habeas

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petition filed after AEDPA's statute of limitations ended cannot toll the limitation period. See

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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit

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the reinitiation of the limitations period that has ended before the state petition was filed,” even

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if the state petition was timely filed).

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The § 2244(d) limitations period can be equitably tolled for a petitioner who shows that

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he pursued his rights with reasonable diligence and that some extraordinary circumstance stood

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in his way and prevented timely filing. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

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Jansen does not show any basis for equitable tolling of the limitations period.

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Jansen's federal petition was deemed filed on August 21, 2012, more than nineteen

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months after the limitations period had expired. The petition must be dismissed because it was

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not filed before the expiration of the habeas statute of limitations period. In light of the

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resolution of the untimeliness question, the court does not address the non-exhaust of the

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ineffective assistance of counsel claim.

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C.

Request For Appointment of Counsel

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Petitioner requests that counsel be appointed to represent him in this action. A district

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court may appoint counsel to represent a habeas petitioner whenever "the court determines that

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the interests of justice so require" and such person is financially unable to obtain representation.

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18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the

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district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is

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mandatory only when the circumstances of a particular case indicate that appointed counsel is

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necessary to prevent due process violations. See id. The interests of justice do not require

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appointment of counsel in this action. The request for appointment of counsel is DENIED.

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(Docket # 18.)

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D.

No Certificate of Appealability

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A certificate of appealability will not issue because this is not a case in which "jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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CONCLUSION
Respondent’s motion to dismiss is GRANTED. (Docket # 14.) The petition for writ
of habeas corpus is dismissed because it was not filed before the expiration of the limitations
period in 28 U.S.C. § 2244(d)(1).

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The clerk will close the file.

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IT IS SO ORDERED.

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DATED: June 13, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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