Harris v. Lewis

Filing 12

ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY by Judge William Alsup granting 10 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 8/14/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EARNEST S. HARRIS,

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No. C 13-1788 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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ORDER GRANTING MOTION TO
DISMISS AND DENYING
CERTIFICATE OF
APPEALABILITY

v.
R. LEWIS,
Respondent.

(Docket No. 10)
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INTRODUCTION
Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254 challenging the validity of his conviction and sentence in

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Del Norte County Superior Court in 2002. Respondent has filed a motion to dismiss the

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petition as procedurally defaulted and untimely. Petitioner filed a “Response” to the motion

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well past the deadline for an opposition. Petitioner’s response has been considered

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notwithstanding its untimeliness Respondent did not file a reply brief.

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STATEMENT
In 2002, petitioner pled guilty in Del Norte County Superior Court to attempted murder

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and admitted to personally using a deadly weapon and to having prior “strike” convictions

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(Resp. Exh. 1 at 12, 15-16, 18). On September 12, 2002, he was sentenced to a term of eleven

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years in state prison in accordance with a plea agreement (id. 17-19). He did not file a direct

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appeal of the conviction or sentence, but he did challenge them in state habeas petitions.

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Specifically, on December 13, 2002, he filed a habeas petition to the superior court, and it was

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denied on January 9, 2003 (Resp. Exh. 2). Over nine years later, on May 23, 2012, he filed

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another habeas petition to the superior court, and it was denied on August 23, 2012 (Resp. Exh.

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3). On November 2, 2012, he filed two identical habeas petitions to the California Court of

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Appeal, and they were denied five days later (Resp. Exh. 4). Petitioner then filed a habeas

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petition to the California Supreme Court on November 19, 2012; the petition was denied on

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January 30, 2013, with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5

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Cal.4th 750, 767-69 (1995), and In re Duvall, 9 Cal. 4th 464, 474 (1995) (Resp. Exh. 5). The

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instant federal petition is deemed filed on April 9, 2013.

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For the Northern District of California

United States District Court

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ANALYSIS
Respondent argues that the claims in the petition are procedurally barred. As noted, his

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claims were rejected by the California Supreme Court with citations to In re Robbins, 18

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Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750, 767-69 (1995). Such citations signal

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that the petition was denied as untimely, and the claims are procedurally defaulted from federal

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habeas review. See Walker v. Martin, 131 S. Ct. 1120, 1131 (2011); Bennett v. Mueller, 322

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F.3d 573, 582-83 (9th Cir. 2003). The additional citation to In re Duvall, 9 Cal. 4th 464, 474

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(1995) (providing for dismissal of petition that does not state prima facie case for relief), does

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not change this analysis because the citation to Robbins at 18 Cal. 4th 770, 780, the page where

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the court discusses the analytical framework for timeliness determinations, constitutes a denial

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as untimely. See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007). Accordingly, the

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claims in his petition are procedurally defaulted from federal habeas review.

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Petitioner argues that procedural default should be excused. There are exceptions to

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procedural default if a habeas petitioner shows cause and prejudice, Sawyer v. Whitley, 505 U.S.

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333, 338 (1992) (citations omitted), or if the failure to hear the claims would constitute a

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"miscarriage of justice" by showing that his “actual innocence” of the charges, McQuiggin v.

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Perkins, 133 S. Ct. 1924, 1931–32 (2013). Petitioner makes neither showing. He argues that

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his sentence was enhanced based on a prior conviction that he claims was found

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unconstitutional in 2003, after the sentence in this case was imposed in 2002. This argument is
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also Petitioner’s third claim for relief in the present petition, but it does not excuse procedural

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default. To begin with, the prior conviction, a 1995 assault conviction out of Sacramento

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County Superior Court, was never found unconstitutional. In 2003, the Sacramento County

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Superior Court vacated the sentence on that conviction, and resentenced him, because the trial

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court had mistakenly failed to impose a sentence enhancement (Opp. Exh. 2 at 3-4); the superior

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court did not find the conviction unconstitutional (see id. 1-5). As such, the superior court’s

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2003 decision has no bearing on petitioner’s innocence or guilt of the attempted murder charges

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at issue here, nor does it also invalidate the sentence he received for his conviction on those

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charges. The superior court’s decision in 2003 also does not show cause for petitioner waiting
until 2013, nearly ten more years, before challenging his conviction and sentence in the

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For the Northern District of California

United States District Court

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California Supreme Court.

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Petitioner also argues that an even earlier conviction, from 1992 in Alameda County

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Superior Court, that was used to enhance his 1995 conviction does not qualify as a “strike”

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under California law. That argument was rejected by the superior court (id. 2-3), but even if the

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argument were correct, it does not show that he is actually innocent of the attempted murder of

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which he was convicted in Del Norte County in 2002. Nor does this argument who cause for

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the untimeliness of his habeas petition in the state supreme court.

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In sum, petitioner has not shown that there should be an exception to his procedural

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default on the basis of either cause and prejudice or a miscarriage of justice. Accordingly, the

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petition must be dismissed on procedural default grounds.

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Respondent’s alternative argument, that the petition is untimely, is also correct. The

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instant petition was filed more than ten years after the time for him to seek direct review of his

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2002 conviction expired, far longer than the one-year statute of limitation applicable to federal

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habeas petition. See 28 U.S.C. § 2244(d)(1)(A); see also Cal. R. Ct. 8.104(a) (allowing 60 days

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for notice of appeal from criminal judgment). While a short period of tolling for 27 days while

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his initial state habeas petition was pending is available under Section 2244(d)(2), petitioner’s

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other state habeas petitions challenging the conviction and sentence were filed far too late to toll

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the limitation period. See Evans v. Chavis, 546 .S. 189, 198, 201 (2006). Petitioner does not
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argue or present grounds that the petition is timely on equitable tolling grounds, and for the

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reasons discussed above, his arguments for excusing the procedural default are without merit

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and also do not excuse the petition’s untimeliness. Accordingly, the petition is also barred on

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untimeliness grounds.

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CONCLUSION
For the reasons stated above, respondent’s motion to dismiss (dkt. 10) is GRANTED.
The petition is DISMISSED.
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to
rule on whether a petitioner is entitled to a certificate of appealability in the same order in
which the petition is denied. Petitioner has failed to make a substantial showing that a

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For the Northern District of California

United States District Court

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reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted

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in this case.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: August

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, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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