Reid William Rogers v. F Foulk

Filing 14

ORDER OF DISMISSAL 9 (Illston, Susan) (Filed on 3/6/2014) (Additional attachment(s) added on 3/6/2014: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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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

ORDER OF DISMISSAL

Petitioner,

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No. C 13-3794 SI (pr)

REID WILLIAM ROGERS,

v.
F. FOULK, warden,

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Respondent.
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INTRODUCTION

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Reid William Rogers, an inmate at the California State Prison - Corcoran, filed this pro

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

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to dismiss the petition as untimely. Rogers has filed a traverse in which he opposed the motion

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to dismiss. For the reasons discussed below, the court dismisses the untimely petition.

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BACKGROUND

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In December 2008, Rogers pled no contest in Sonoma County Superior Court to assault

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with a deadly weapon, assault by means likely to produce great bodily injury, robbery, forced

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oral copulation, witness intimidation, and attempted sodomy. He also admitted sentence

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enhancement allegations for inflicting great bodily injury and for committing an offense while

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on bail. On February 2, 2009, Rogers was sentenced to a total of 23 years and eight months in

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prison.

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Rogers appealed. The California Court of Appeal affirmed his conviction on August 21,
2009. He did not file a petition for review in the California Supreme Court.

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More than three years later, Rogers filed several habeas petitions in the state courts. First,

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he filed a habeas petition in Sonoma County Superior Court on September 8, 2012; that petition

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was denied on November 16, 2012. Next, he filed a habeas petition in the California Court of

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Appeal on December 1, 2012; that petition was denied on December 21, 2012. Finally, he filed

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a habeas petition in the California Supreme Court on January 4, 2013; that petition was denied

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on April 29, 2013.
Rogers then filed this action. His federal habeas petition has a signature date of June 25,

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2013, and was mailed to the U.S. District Court for the Central District of California in an

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envelope with what appears to be a July 10, 2013 postmark. The petition later was transferred

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United States District Court
For the Northern District of California

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to the Northern District of California. For purposes of the present motion, the court assumes the

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petition was mailed on the day it was signed, despite the absence of a proof of service. Due to

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Rogers' status as a prisoner proceeding pro se, he receives the benefit of the prisoner mailbox

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rule, which deems most documents filed when they are given to prison officials to mail to the

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court rather than the day the document reaches the courthouse. See Stillman v. Lamarque, 319

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F.3d 1199, 1201 (9th Cir. 2003). His federal petition is deemed filed as of June 25, 2013.

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The federal petition for writ of habeas corpus asserted two claims: (1) defense counsel

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provided ineffective assistance in that she represented that there was a deal for him to receive

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a sentence of eight years and eight months if he entered a plea of no contest when no such deal

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existed; and (2) petitioner's receipt of a sentence that was "harsher and greater than the plea

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agreement" that his attorney fabricated was cruel and unusual punishment. See Docket # 1 at

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11. Both claims turn on the alleged misadvisement by counsel that a deal existed for an eight

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year and eight month sentence. The motion to dismiss does not require an evaluation of the

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merits of the claims; instead, the critical questions are whether the petitioner arrived in federal

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court by the deadline to file a habeas petition and, if not, why not.

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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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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).
Rogers' limitations period began on September 30, 2009, when the judgment of

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conviction became final. See 28 U.S.C. § 2244(d)(1)(A). After the California Court of Appeal

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affirmed his conviction on August 21, 2009, Rogers had forty days (i.e., until September 30,

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United States District Court
For the Northern District of California

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2009) to file a petition for review in the California Supreme Court. See Cal. Rules of Court

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8.264(b), 8.500(e). He did not file a petition for review in the California Supreme Court, so his

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conviction became final and the one-year statute of limitations began on September 30, 2009,

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when the time to file a petition for review expired.

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Rogers has urged that the limitations period should have started on a later date due to

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newly discovered evidence in the form of the declarations attached to his petition. Each of those

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declarations is dated in June, July or August 2012 and each describes the declarant's recollection

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that he or she heard defense counsel's allegedly improper advice to Rogers in December or

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January – presumably meaning December 2008 or January 2009 because the plea was entered

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in December 2008. According to Rogers, although the "information has the appearance of being

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old it is new on the assumption that petitioner was not presented with this information until later.

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Its further newly discovered as the record reflect that petitioner had to search for witnesses in

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opposition to attorney for record to show that she did in fact present petitioner with a deal that

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she did not procure." Docket # 12 at 9 (errors in source).

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Under 28 U.S.C. § 2244(d)(1)(D), the one-year limitations period does not start until “the

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date on which the factual predicate of the claim or claims presented could have been discovered

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through the exercise of due diligence.” The factual predicate of a claim is based on a habeas

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petitioner’s knowledge of the facts supporting the claim, and not the evidentiary support for the

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claim. Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). The time begins “‘when the
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prisoner knows (or through diligence could discover) the important facts, not when the prisoner

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recognizes their legal significance.’” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001)

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(quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)). Here, the nature of Rogers' claims

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is such that he would have known the important facts supporting the claims at the moment he

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heard the judge impose the unexpected sentence. At the sentencing hearing on February 2, 2009,

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Rogers was present and made a statement on the record before he was sentenced. The

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sentencing judge went charge by charge and stated the sentence he imposed for each crime, see

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Docket # 1-1 at 43-47 (RT at 67-71). Then the court summarized the custodial part of the

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sentence by stating that "[t]he total term will be 23 years, eight months for Mr. Rogers," id. at

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United States District Court
For the Northern District of California

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47 (RT 71). If Rogers' account is true that counsel had told him he would receive a sentence of

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eight years and eight months, he knew then and there on February 2, 2009 that he had not

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received the agreed-upon sentence. He may have waited until the summer of 2012 to gather the

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declarations to prove it, but he knew the factual predicate for his claims on February 2, 2009.

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Rogers is not entitled to have the one-year limitations period start from when he gathered the

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declarations in the summer of 2012 because he had known about the factual predicate of his two

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claims – i.e., that he had not received a sentence of eight years and eight months in jail – since

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February 2, 2009. See Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) (§ 2254(d)(1)(D)

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"does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers

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every possible scrap of evidence" that might support a claim); see generally United States v.

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Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (no delayed start of limitations period under § 2255

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for federal petitioner who was not diligent; even though he did not have access to trial

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transcripts, the facts supporting claims which occurred at the time of his conviction could have

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been discovered if he “at least consult[ed] his own memory of the trial proceedings”). Rogers

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therefore does not qualify for the later starting date under 28 U.S.C. § 2244(d)(1)(D).

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The one-year limitations period may be 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). Here, Rogers did not file any state

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habeas petition during the one-year limitations period ending on September 30, 2010. His state
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habeas petitions filed in September 2012 and later did not toll the limitations period that had

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already expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). He therefore

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receives no statutory tolling.
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)). Rogers is not entitled to any equitable tolling

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based on any delayed receipt of the declarations. He has not shown that he was pursuing his

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United States District Court
For the Northern District of California

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rights diligently or that some extraordinary circumstance stood in the way that impeded his

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ability to timely file his federal petition. As mentioned earlier, Rogers knew on February 2,

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2009 that he had not received the sentence he expected. He has not explained why, armed with

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such knowledge, it took him more than three years after his conviction was affirmed to file his

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federal habeas petition. He certainly could have prepared his own declaration immediately

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stating that he had received a sentence different from that which counsel had advised him he

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would receive. The other declarations were not necessary for Rogers to file a federal habeas

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petition, and the alleged lack of those declarations did not stand in the way of him filing a federal

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habeas petition. Even if he did need those declarations to file a federal habeas petition, Rogers

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has failed to explain his extreme delay in obtaining the third party declarations that purported

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to recount what declarants had heard the defense attorney say about the plea deal before Rogers

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entered his plea. It strains reason to think that it would take more than thirty months for a man

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to obtain declarations from his father and sister to confirm that they heard the attorney say that

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there was a deal for a sentence that was roughly a third of the sentence actually imposed. And

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Rogers has offered no explanation why it took equally long to obtain declarations from friends

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and family friends who were close enough that they heard the attorney discussing the plea offer

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with his client. Rogers has not shown that he acted with reasonable diligence or that any

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extraordinary circumstance prevented a timely filing. Equitable tolling is not warranted.

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The limitations period began on September 20, 2009 and was not statutorily or equitably

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tolled. The limitations period expired on September 30, 2010. Rogers' federal petition filed on

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June 25, 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

United States District Court
For the Northern District of California

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Respondent’s motion to dismiss is GRANTED. (Docket # 9). 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

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in 28 U.S.C. § 2244(d)(1). The clerk will close the file.

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IT IS SO ORDERED.
DATED: March 6, 2014

_______________________
SUSAN ILLSTON
United States District Judge

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