Johnson v. Biter

Filing 18

ORDER by Judge William Alsup granting 11 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/24/2016)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 STEPHON DEON JOHNSON, No. C 15-3640 WHA (PR) 10 ORDER GRANTING MOTION TO DISMISS v. For the Northern District of California United States District Court Petitioner, 11 12 MARTIN BITER, 13 (Dkt. 11) Respondent. 14 / 15 INTRODUCTION 16 This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254 17 challenging his conviction in state court. Respondent has filed a motion to dismiss the petition 18 as untimely. Petitioner has filed an opposition and respondent has filed a reply brief. The 19 motion is GRANTED and the case is DISMISSED. 20 STATEMENT 21 On March 19, 2010, petitioner and a co-defendant were convicted in Alameda County 22 Superior Court of two counts of first-degree murder and one count of attempted murder (Pet. 23 Br. 1). On June 4, 2010, petitioner was sentenced to a term of life without the possibility of 24 parole in state prison (ibid.). The California Court of Appeal affirmed the conviction on June 25 27, 2013 (Pet. Appendix C), and the California Supreme Court denied the petition for review on 26 October 2, 2013 (Resp. Exh. 1). On April 16, 2014, petitioner gave his petition for a writ of 27 habeas corpus to prison officials for mailing to the Alameda County Superior Court, and it was 28 filed in that court on May 7, 2014 (id. Exh. 2; Opp. 2). On June 20, 2014, the petition was denied as untimely and without merit (Resp. Exh. 3). On July 10, 2014, petitioner filed a 1 habeas petition in the California Court of Appeal, which was denied four days later summarily 2 and without citation (id. Exh. 4). ON August 18, 2014, petitioner filed a habeas petition in the 3 California Supreme Court (id. Exh. 5). He received leave to amend the petition and filed an 4 amended the petition on January 12, 2015 (id. Exh. 6; Opp. 2). The California Supreme Court 5 denied relief, with the only explanation a citation to In re Robbins, 18 Cal.4th 770, 780 (1998) 6 (Resp. Exh. 7). The instant petition was filed on August 10, 2015. 7 8 ANALYSIS The statute of limitations is codified at 28 U.S.C. 2244(d). Petitions filed by prisoners of the date on which: (A) the judgment became final after the conclusion of direct review or the 11 For the Northern District of California challenging non-capital state convictions or sentences must be filed within one year of the latest 10 United States District Court 9 time passed for seeking direct review; (B) an impediment to filing an application created by 12 unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 13 the constitutional right asserted was recognized by the Supreme Court, if the right was newly 14 recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the 15 factual predicate of the claim could have been discovered through the exercise of due diligence. 16 28 U.S.C. 2244(d)(1). 17 Under Section 2244(d)(1)(A), the time for seeking direct review includes the period in 18 which a petition may file a petition for a writ of certiorari from the United States Supreme 19 Court, whether or not such a petition is actually filed. Bowen v. Roe, 188 F.3dd 1157, 1159 (9th 20 Cir. 1999). Petitioner did not file a petition for a writ of certiorari in this case. His time for 21 doing so expired 90 days after the California Supreme Court denied the petition for review. See 22 Sup. Ct. R. 13. 8.500(e). The California Supreme Court denied review on October 2, 2013, 23 and the deadline for filing a petition for a writ of certiorari expired on December 31, 2013. 24 Therefore, under Section 2244(d)(1)(A) the judgment became “final” and the one-year 25 limitations period started on December 31, 2013. The limitations period began running the next 26 day and expired one year later, on January 1, 2015. 27 28 Under the “mailbox rule” a federal petition may be deemed filed on the date it was handed to prison authorities for mailing, and not on the date it was actually filed. 2 1 See Houston v. Lack, 487 U.S. 266, 276 (1988). Here, however, there is no evidence as to when 2 the petition was handed to prison officials for mailing: there is no proof of service attached to 3 the petition, and petitioner does not state when he handed it to prison officials. The date 4 petitioner signed the petition can logically be presumed to be the date he handed it to prison 5 officials for mailing. The instant petition is signed and dated “July 2015”. For the purposes of 6 analyzing this motion, the instant petition will be deemed filed under the mailbox rule on July 1, 7 2015, because that is the earliest date that it could have been signed and delivered to prison 8 officials for mailing. As the limitations period expired six months earlier, on January 1, 2015, it 9 is untimely absent tolling. Time during which a properly filed application for state post-conviction or other 11 For the Northern District of California United States District Court 10 collateral review is pending is excluded from the one-year time limit. 28 U.S.C. 2244(d)(2). 12 For a state post-conviction to be “pending” and “properly filed” within the meaning of Section 13 2244(d)(2), it must be timely under state law. See Carey v. Saffold, 536 U.S. 214, 226 (2002); 14 see also Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). In California, a state habeas petition 15 is untimely if there has been an unreasonable delay. Carey, 536 U.S. at 226. The Alameda 16 County Superior Court found petitioner’s first state post-conviction to be untimely. If a 17 California state court rules that the petition is untimely, “that is the end of the matter” for 18 purposes of Section 2244(d)(2) tolling. Ibid. The fact that the Alameda County Superior Court 19 also denied the petition on its merits does not change this conclusion. See ibid. (if the state 20 court denies the petition as untimely, there is no tolling under Section 2244(d)(2) regardless of 21 whether the state court also addressed the merits of the claims). It is noted that the superior 22 court could reasonably find that the petition was unreasonably delayed because while it was 23 filed was filed 106 days after the federal statute of limitations period began, more than six 24 months had elapsed since petitioner lost his final direct appeal to the California Supreme Court 25 and nearly four years had elapsed since his conviction and sentence. In any event, the superior 26 court’s finding that the petition was untimely conclusively precludes tolling under Section 27 2244(d)(2) while the petition was pending. 28 Petitioner’s two subsequent state habeas petitions also do not toll the limitations period 3 1 under Section 2244(d)(2). When a higher court in California denies the petition summarily — 2 as the California Court of Appeal did in this case — it is presumed that the higher court agreed 3 with the lower court’s determination on the timeliness question unless “strong evidence” rebuts 4 this presumption. Curiel v. Miller, 780 F.3d 1201, 1203-04 (9th Cir. 2015). The California 5 Court of Appeal’s summary denial is therefore presumed to be in agreement with the Alameda 6 County Superior Court’s decision that the petition was untimely, and there is no evidence to 7 rebut this presumption. Cf. id. at 1204 (finding that citations to other California decisions in 8 summary opinion was not “strong evidence” that overcomes presumption that California 9 Supreme Court’s summary denial signaled agreement with superior court’s determination that petition was untimely). The California Supreme Court’s denial of the habeas petition is also 11 For the Northern District of California United States District Court 10 considered a denial on untimeliness grounds because of the Supreme Court cited In re Robbins, 12 18 Cal. 4th 770, 780 (Cal. 1998). Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) 13 (California court's citation to In re Robbins, 18 Cal. 4th 770, 780 (Cal. 1998), is a clear ruling 14 that the petition was untimely, and the petition does not toll the limitations period under Section 15 2244(d)(2)). Under Curiel and Thorson, therefore, the habeas petitions to the California Court 16 of Appeal and the Supreme Court of California were denied as untimely and do not toll the 17 limitations period under Section 2244(d)(2). 18 Petitioner does not argue that he is entitled to equitable tolling, but it is nevertheless 19 noted that there are no grounds for equitable tolling here. “[A] 'petitioner' is 'entitled to 20 equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) 21 that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. 22 Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418). Petitioner argues that he 23 did not know that his superior court petition would be untimely. If he did not know that his 24 superior court petition would be untimely when he filed it, he was so informed when the 25 petition was denied. At that time, time he still had approximately three months left of the 26 AEDPA limitations period in which to file a protective petition in federal court. Prisoners may 27 avoid the risk of having the federal statute of limitations expire while they are exhausting their 28 state remedies “by filing a 'protective' petition in federal court and asking the federal court to 4 1 stay and abey the federal habeas proceedings until state remedies are exhausted.” Pace, 544 2 U.S. at 416 (citing Rhines v. Weber, 544 U.S. 269, 277 (2005)). Indeed, the failure to do so in 3 some circumstances may be considered a lack of diligence by a petitioner so as to preclude 4 equitable tolling. Curiel, 780 F.3d at 1205-06. Petitioner has not shown any reason he could 5 not have filed a protective habeas petition after his superior court petition was denied. 6 Moreover, there are simply no extraordinary circumstances that impeded his filing a timely 7 petition. The federal exhaustion requirement and the rules governing the timeliness of state 8 court habeas petitions are far from extraordinary insofar as they apply to every California 9 prisoner who seeks post-conviction habeas relief. Accordingly, there are no grounds for 11 For the Northern District of California United States District Court 10 equitable tolling apparent from the record in this case. Because the instant petition was filed approximately six months after the one-year 12 statute of limitations expired, and there are no grounds for statutory or equitable tolling, it must 13 be dismissed as untimely. 14 15 16 17 CONCLUSION For the foregoing reasons, respondent’s motion to dismiss (dkt. 11) is GRANTED and the petition is DISMISSED. Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 18 rule on whether a petitioner is entitled to a certificate of appealability in the same order in 19 which the petition is denied. Petitioner has failed to make a substantial showing that a 20 reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v. 21 McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted 22 in this case. 23 The clerk shall enter judgment and close the file. 24 IT IS SO ORDERED. 25 Dated: May 26 23 , 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28 5

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