Smith v. Warden

Filing 23

ORDER OF DISMISSAL 14 (Illston, Susan) (Filed on 5/22/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 13-206 SI (pr)

ANTHONY SMITH,

ORDER OF DISMISSAL

Petitioner,
v.
RANDY GROUNDS, warden,
Respondent.
/

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INTRODUCTION

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Anthony Smith, an inmate at the Salinas Valley State Prison, filed this pro se action

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seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss

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the petition as untimely. Smith has not filed an opposition to the motion to dismiss. For the

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reasons discussed below, the court dismisses the untimely petition.

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BACKGROUND

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Smith was sentenced to 38 years to life in prison following his conviction in 2007 in

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Alameda County Superior Court for first degree residential burglary with enhancements for prior

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convictions and prior prison terms. He appealed. The California Court of Appeal affirmed the

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judgment of conviction on March 16, 2009. The California Supreme Court denied the petition

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for review on May 20, 2009.

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Thereafter, Smith filed numerous habeas petitions in state court. Some of those petitions

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were pending during overlapping time periods. The petitions fall into two groups: those filed

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in 2009 and those filed in or after 2011.
The first group of petitions were filed and resolved in 2009. The first state habeas

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petition was filed in the California Court of Appeal on August 24, 2009, and was denied on

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August 26, 2009. The second state habeas petition was filed in the Alameda County Superior

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Court on September 8, 2009, and was denied on September 23, 2009. The third state habeas

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petition was filed in the California Supreme Court on September 15, 2009, and was denied on

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November 10, 2009. The fourth state habeas petition was filed in the California Supreme Court

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United States District Court
For the Northern District of California

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on October 7, 2009, and was denied on November 10, 2009. The fifth state habeas petition was

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filed in the Alameda County Superior Court on October 8, 2009, and was denied on October 28,

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2009.

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Smith's next efforts to obtain state collateral review started in late 2011. The sixth state

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habeas petition was filed in the Alameda County Superior Court on September 29, 2011, and

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was denied on November 17, 2011. The seventh state habeas petition was filed in the California

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Court of Appeal on November 23, 2011, and was denied on December 1, 2011. The eighth state

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petition – a petition for writ of mandate – was filed in the Alameda County Superior Court on

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November 29, 2011, and was denied on December 22, 2011. The ninth state petition – another

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petition for writ of mandate – was filed in the California Court of Appeal on January 5, 2012,

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and was denied on January 11, 2012.

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Smith then filed this action, seeking a writ of habeas corpus. His federal petition has a

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signature date of January 3, 2013, came to the court in an envelope with a January 8, 2013

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postmark, and was stamped "filed" at the court on January 15, 2013. For purposes of the present

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motion, the court assumes the petition was mailed on the day it was signed, despite the absence

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of a proof of service. Due to Smith's status as a prisoner proceeding pro se, he receives the

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benefit of the prisoner mailbox rule, which deems most documents filed when they are given to

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prison officials to mail to the court rather than the day the document reaches the courthouse.

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See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). His federal petition is deemed
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filed as of January 3, 2013.

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DISCUSSION

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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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United States District Court
For the Northern District of California

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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)(A-D).

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Here, the judgment became final and the limitations period started on August 18, 2009,

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90 days after the California Supreme Court denied Smith's petition for review on May 20, 2009.

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See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (direct review period includes the period

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during which the petitioner could have sought further direct review, regardless of whether he did

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file a petition in the U.S. Supreme Court). His presumptive deadline to file his federal petition

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was August 18, 2010.

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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). A state habeas petition is considered

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pending not only for the time the case is open on the docket of some court, but also for the time

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period between state habeas petitions if the petitioner files the later state habeas petition at a

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higher level court and does so “within what California would consider a ‘reasonable time.’”

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Evans v. Chavis, 546 U.S. 189, 197-98 (2006); Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

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Smith is entitled to some statutory tolling for several of his state habeas petitions.1 He

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The prisoner mailbox rule also generally applies to the filing of state petitions for the
purposes of calculating the AEDPA limitation period. That is, the one-year limitation period is
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petition to prison authorities for forwarding to the court. See Stillman, 319 F.3d at 1201; see
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is entitled to tolling for the time during which his first state habeas petition was actually on file

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and awaiting a decision, but not entitled to tolling for the gap of twelve days between the denial

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of that petition and the filing of the second state habeas petition because the latter petition was

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not filed in a higher level court. Smith also is entitled to tolling for the time during which his

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second petition was pending until his fourth petition was denied on November 2009 because

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some petition (whether it be the second, third, fourth, or fifth petition) was actually pending

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during this entire time. (Smith's fifth petition had been denied before the fourth petition was

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denied.) After deducting the untolled time of 18 days (i.e., the 6 days before the first petition

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was filed and the 12 days between the first and second petitions), there were 347 days remaining

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United States District Court
For the Northern District of California

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in the limitations period when the last of Smith's 2009 petitions was denied on November 10,

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2009. Smith then had a new deadline of October 23, 2010 to get to federal court or to cause a

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new tolling event.

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Smith's next efforts to obtain state collateral review started on September 29, 2011, about

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eleven months after his limitations period had expired. His state petitions filed on September

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29, 2011 and later did not toll the limitations period that had already expired. See Ferguson v.

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Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

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The one-year limitations period can be equitably tolled because § 2244(d) is not

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jurisdictional. Holland v. Florida, 560 U.S. 631 , 645 (2010). ‘“A litigant seeking equitable

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tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights

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diligently, and (2) that some extraordinary circumstance stood in his way.’” Id. at 655 (quoting

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Smith has not shown any basis for equitable

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tolling of the limitations period.

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After allowing tolling for the state habeas petitions that were filed in 2009, the habeas

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statute of limitations period for Smith expired on October 23, 2010. Smith's federal petition filed

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also Orpiada v. McDaniel, No. 12-17131, slip op. at 6-7 (9th Cir. May 7, 2014). Here, there
are signature dates on some of the state petitions, but Smith has not made any statement as to
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state courts. It is not necessary for the parties to further develop the record on the mailing dates
28 of the state petitions because the mailbox rule would not make a difference to the ultimate
outcome of this case in which the petitioner missed the deadline by many months.
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on January 3, 2013 is time-barred.

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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

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Respondent’s motion to dismiss is GRANTED. (Docket # 14). The petition for writ of

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habeas corpus is dismissed because it was not filed before the expiration of the limitations period

United States District Court
For the Northern District of California

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in 28 U.S.C. § 2244(d)(1). The clerk will close the file.
IT IS SO ORDERED.
DATED: May 22, 2014

_______________________
SUSAN ILLSTON
United States District Judge

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