Barnes v. Lizarraga

Filing 8

ORDER by Judge William Alsup granting 6 Motion to Dismiss (dl, COURT STAFF) (Filed on 1/21/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KEVIN JEROME BARNES,

No. C 15-4199 WHA (PR)

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Petitioner,

ORDER GRANTING MOTION TO
DISMISS

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v.
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(Dkt. 6)

Respondent.
For the Northern District of California

United States District Court

JOE LIZARRAGA,
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INTRODUCTION
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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254
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challenging his sentence in state court. Respondent has filed a motion to dismiss the petition as
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untimely. Petitioner has filed an opposition. The motion is granted and the case is dismissed.
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STATEMENT
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Petitioner pled no contest to two counts of kidnaping and one count of carjacking with
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an enhancement for the use of a firearm in Alameda County Superior Court on July 19, 2011.
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On September 12, 2011, the trial court sentenced him to a term of 30 years in state prison.
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Petitioner did not file a direct appeal. On December 5, 2014, he filed a petition for a writ of
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habeas corpus in Alameda County Superior Court. The petition was denied on January 22,
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2015. On February 10, 2015, he filed a habeas petition in the California Court of Appeal, which
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was denied on February 19, 2015. On April 24, 2015, he filed a habeas petition in the
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California Supreme Court, which was denied on August 12, 2015. The instant petition was
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filed on September 15, 2015.
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ANALYSIS
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The statute of limitations is codified at 28 U.S.C. 2244(d). Petitions filed by prisoners
challenging non-capital state convictions or sentences must be filed within one year of the latest

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of the date on which: (A) the judgment became final after the conclusion of direct review or the

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time passed for seeking direct review; (B) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing; (C)

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the constitutional right asserted was recognized by the Supreme Court, if the right was newly

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recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the

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factual predicate of the claim could have been discovered through the exercise of due diligence.

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28 U.S.C. 2244(d)(1). Time during which a properly filed application for state post-conviction

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or other collateral review is pending is excluded from the one-year time limit. 28 U.S.C.

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2244(d)(2).
Petitioner’s judgment became final under Section 2244(d)(1)(A) on November 12, 2011

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For the Northern District of California

United States District Court

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— 60 days after he was sentenced — because that is when the time for filing a notice of appeal

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expired. See Cal. R. Ct. 8.308(a); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006)

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(because California prisoner did not appeal his conviction, process of direct review became

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final 60 days after conviction) , The limitations period began running the next day and expired

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one year later, on November 13, 2012. Under the “mailbox rule” the instant petition is deemed

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filed on the day it was signed — September 7, 2015, nearly three years too late. Petitioner’s

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first state habeas petition was filed in January 2015, over two years after the limitations period

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had already expired, and thus his state habeas petitions do not toll the limitations period under

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Section 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that

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once AEDPA’s limitations period has run, a state habeas petition cannot revive it).

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Petitioner argues that his claims should be excused from procedural default because his

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attorney did not file a timely notice of direct appeal in the California Court of Appeal within 60

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days of petitioner’s sentence (Pet. 14-15; Opp. 1-3). The exception to procedural default

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petitioner refers to was created in Martinez v. Ryan, 132 S.Ct. 1309 (2012) and expanded in

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Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013). The exception applies where a petitioner

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brings claims of ineffective assistance of trial counsel, he could not have raised the claims on

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direct review, and he was afforded no counsel or only ineffective counsel on state collateral

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review. Trevino v. Thaler, 133 S. Ct. 1911, 1918, 1921 (2013) (quoting Martinez, 132 S. Ct. at
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1318-19, 1320-21) (expanding Martinez exception to states whose “procedural framework, by

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reason of its design and operation, makes it highly unlikely in a typical case that a defendant

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will have a meaningful opportunity to raise the claim of ineffective assistance of trial counsel on

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direct appeal”). This exception applies to federal habeas claims that are procedurally defaulted,

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not that are untimely under AEDPA Section 2244(d)(1). While the Martinez exception may

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excuse any procedural default in petitioner’s claims, respondent’s procedural default argument

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is not reached or relied upon here in light of the conclusion that the petition is untimely.

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While petitioner does not argue that equitable tolling of the limitations period is

timely on equitable tolling grounds. The Supreme Court has determined that AEDPA’s statute

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For the Northern District of California

warranted, it is noted that his allegations, even if true, are not sufficient to render his petition

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United States District Court

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of limitations is subject to equitable tolling “only if he shows ‘(1) that he has been pursuing his

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rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented

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timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). The prisoner also must show

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that the extraordinary circumstances “were the cause of his untimeliness.” Spitsyn v. Moore,

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345 F.3d 796, 799 (9th Cir. 2003). Petitioner alleges that his attorney did not file a timely

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notice of appeal for direct review of his conviction and sentence. Trial counsel’s negligence in

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failing to perfect a direct appeal does not warrant equitable tolling if it does not cause the delay

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in filing a federal habeas petition. See Randle v. Crawford, 604 F.3d 1047, 1057-58 (9th Cir.

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2010). Moreover, attorney misconduct does not warrant equitable tolling if the petitioner was

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not precluded from at least filing a “protective” petition in federal court before the AEDPA

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deadline. Curiel v. Miller, 780 F.3d 1201, 1206 (9th Cir. 2015) (attorney’s failure to provide

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petitioner with his file did not warrant equitable tolling because petitioner could still have filed

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a protective federal petition before the deadline). Even assuming plaintiff’s allegation that his

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attorney did not file a timely notice of appeal is true, this is not grounds for equitable tolling

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because it did not cause the nearly four-year delay in petitioner’s filing of his federal petition,

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and petitioner could have still filed his state habeas petitions and/or a protective federal petition

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before the limitations period expired. There is no explanation why petitioner did not do so, and

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his lack of legal training is not an adequate explanation. See Raspberry v. Garcia, 448 F.3d
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1150, 11543 (9th Cir. 2006) (pro se petitioner’s lack of legal sophistication is not, by itself, an

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extraordinary circumstance warranting equitable tolling). Accordingly, there are no grounds for

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finding the petition timely on equitable tolling grounds.

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CONCLUSION

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For the foregoing reasons, respondent’s motion to dismiss (dkt. 6) is GRANTED and the
petition is DISMISSED.
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

which the petition is denied. Petitioner has failed to make a substantial showing that a

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

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For the Northern District of California

rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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United States District Court

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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 enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: January
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, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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