Smith v. Soto

Filing 27

ORDER OF DISMISSAL 15 26 . (Illston, Susan) (Filed on 5/1/2017) (Additional attachment(s) added on 5/1/2017: # 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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BOBBIE L. SMITH,
Petitioner,

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United States District Court
Northern District of California

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Case No. 16-cv-00697-SI
ORDER OF DISMISSAL

v.

Re: Dkt. Nos. 15, 26
JOHN SOTO,
Respondent.

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Bobbie Lee Smith filed this pro se action seeking a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Respondent has moved to dismiss the habeas petition as untimely. Smith has not

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filed an opposition to the motion, although the deadline by which to do so was extended several

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times. For the reasons discussed below, the court dismisses the action as barred by the habeas

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statute of limitations.

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BACKGROUND

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Bobbie Lee Smith was convicted in Alameda County Superior Court of attempted murder,

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assault with a firearm, shooting at an inhabited dwelling, and child endangerment. Sentence

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enhancement allegations that Smith had suffered a prior conviction and had personally used and

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discharged a firearm were found true. On March 7, 2012, he was sentenced to a total prison term

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of 51 years and eight months.

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Smith appealed. On August 30, 2013, the California Court of Appeal stayed the prison

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term for shooting at an inhabited dwelling and otherwise affirmed the judgment of conviction. On

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November 26, 2013, the California Supreme Court denied Smith’s petition for review. Smith did

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not file a petition for writ of certiorari in the United States Supreme Court. He also did not file

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any state habeas petitions.
Smith filed two federal actions for writ of habeas corpus: Case No. 15-cv-1633 PSG, and
this action (Case No. 16-cv-697 SI).
Case No. 15-cv-1633 PSG: The first federal action had a lot of activity yet made very little

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progress. On February 26, 2015, Smith signed his petition and apparently mailed it to the U.S.

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District Court for the Central District of California. Case No. 15-cv-1633 at Docket No. 1 at 8.1

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The action was filed in the Central District on March 9, 2015, and was transferred to this district

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on March 25, 2015. On August 3, 2015, the court dismissed the petition with leave to file an

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amended petition within thirty days because Smith had not specified any legal grounds for relief or

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supporting facts in his petition. See Case No. 15-cv-1633 at Docket No. 12. On September 17,

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United States District Court
Northern District of California

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2015, the court dismissed the action without prejudice because Smith had not filed an amended

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petition or otherwise communicated with the court. Id. at Docket No. 13. On November 5, 2015,

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Smith filed a motion to reopen, stating that he had requested but had not received a habeas petition

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form from the court. Id. at Docket No. 16. On November 25, 2015, the court directed the clerk to

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send to Smith two habeas petition forms, and directed Smith to file an amended petition within

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thirty days at which time the court would consider his motion to reopen the action. Id. at Docket

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No. 17. The court cautioned Smith that the first page of his amended petition had to include the

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case number and be marked as an “amended petition” on the first page. Id. On December 17,

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2015, Smith requested an extension of the deadline to file an amended petition. Id. at Docket No.

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18. On January 7, 2016, the court granted Smith a 30-day extension of the deadline and cautioned

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that the action would be dismissed if he did not file the amended petition by the deadline. Id. at

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Docket No. 19. Smith did not file an amended petition, and the court denied the motion to reopen

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the action on February 23, 2016. Id. at Docket No. 20. Smith did not file any more documents in

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the first action, and never filed anything in Case No. 16-cv-697 indicating that he had intended his

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filings in that action to be filed in this first action.

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Under the prisoner mailbox rule, a petition is deemed to have been filed on the date a
prisoner-petitioner gives it to prison officials to mail to the court. See Stillman v. LaMarque, 319
F.3d 1199, 1201 (9th Cir. 2003).
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Case No. 16-cv-697 SI: In this, the second federal action, Smith signed and gave his

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petition to prison officials to mail to the court on January 25, 2016. Docket No. 1 at 7; Docket No.

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1-1 at 1. The envelope containing the petition was stamped “received” at the courthouse on

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January 28, 2016, and the petition was stamped “filed” on February 11, 2016. Docket No. 1 at 1

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and Docket No. 1-1 at 2. The petition was a bare-bones petition: only two pages mentioned the

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legal grounds for relief (without actually mentioning the federal constitutional basis for any claim)

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and directed the reader to exhibits to the petition for his argument about the legal grounds for

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relief. See Docket No. 1 at 9-10. But no exhibits were attached to the petition. The court ordered

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Smith to provide those exhibits, noting that without those exhibits the court could not determine

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that the petition warranted a response from respondent. Docket No. 8. Smith then requested a 30-

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United States District Court
Northern District of California

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day extension of the deadline to file the exhibits because he did not have them. Docket No. 9.

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The court extended the deadline to July 22, 2016, and Smith filed the exhibits on July 21, 2016.

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Docket No. 11. The exhibits were excerpts of the appellate briefs from Smith’s state court appeal.

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(The appellate briefs had been sent to Smith by his attorney when they were filed in 2013. See

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Docket No. 13-4 at 15 (Appellant’s Opening Brief proof of service); Docket No. 13-6 at 14

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(Petition For Review proof of service).) On August 16, 2016, Smith filed a typed copy of his

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petition. Docket No. 13.

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DISCUSSION

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A.

The Latest Request For Extension Of The Deadline
Smith’s request for an extension of the oft-extended deadline to file an opposition to

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respondent’s motion to dismiss is DENIED. (Docket No. 26.)

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December 9, 2016; the deadline was extended to January 13, 2017, when the court received a

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letter from Smith stating that he had not received the motion to dismiss due to a prison transfer;

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then, upon Smith’s several requests, the deadline was further extended to February 10, 2017, then

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to March 3, 2017, and then to April 21, 2017. In the order granting Smith’s last request for an

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extension of the deadline to file an opposition and setting a deadline of April 21, 2017, the court

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stated: “[n]o more extensions of this deadline will be granted because, by the time it arrives,
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The original deadline was

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petitioner will have had more than four months to prepare his opposition.” Docket No. 26

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(emphasis omitted). Respondent’s motion to dismiss was filed on November 10, 2016, and five

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months was more than enough time for a diligent petitioner to prepare a response to it. The court

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cautioned him that the oft-extended deadline would not be further extended, but Smith failed to

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meet the deadline.
Having cautioned Smith that the deadline would not further be extended, the court sees no

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reason to relieve him of his failure to meet the deadline. Smith has never described his efforts to

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obtain the unidentified documents that he purported to need to prepare his opposition, e.g., the

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date(s) on which he requested those documents and the step(s) he took to follow up to try to obtain

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them, nor does he explain what those documents are or how they would enable him to avoid

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United States District Court
Northern District of California

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dismissal. And there is no indication that he attempted to prepare an opposition without the

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documents. The docket sheets for this action and the action filed in 2015 provide a rather clear

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picture of repeated delays, rather than diligence, by Smith. The court also notes that, if the

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documents he purportedly was seeking pertain to the filing of the action in 2015, the court has

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been able to piece together a chronology from the court’s docket and has taken it into account in

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evaluating the motion to dismiss.

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B.

The Petition Is Untimely

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a statute

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of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by

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prisoners challenging noncapital state convictions or sentences must be filed within one year of the

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latest of the date on which: (1) the judgment became final after the conclusion of direct review or

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the time has passed for seeking direct review; (2) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the

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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 (4) 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).
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Here, the limitations period began when the judgment became final upon “the conclusion

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of direct review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review” includes the period within which a

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petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether

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or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.

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1999); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file

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petition for certiorari, his conviction became final 90 days after the California Supreme Court

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denied review). Smith’s petition for review was denied by the California Supreme Court on

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November 26, 2013, and he had ninety days in which to file a petition for writ of certiorari in the

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U.S. Supreme Court. He did not file a petition for writ of certiorari. Smith’s conviction therefore

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became final on February 24, 2014, the deadline for him to file a petition for writ of certiorari.

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United States District Court
Northern District of California

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Smith’s federal habeas deadline was February 24, 2015, one year from that date. (Assuming

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arguendo that a federal holiday could affect the calculations, the federal holiday of Presidents’

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Day fell on February 17 in 2014 and fell on February 16 in 2015, and therefore does not affect the

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calculations in Smith’s case.)

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The one-year limitations period will 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). Smith is not entitled to any statutory

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tolling under this provision because he did not file any state habeas petitions. Smith also is not

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entitled to any statutory tolling for his earlier federal petition because a federal petition is not an

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“application for State post-conviction or other collateral review” within the meaning of

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§ 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

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

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

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

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

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filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Rasberry v.

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Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). The critical question here is whether any equitable

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tolling should be granted, and if there is enough equitable tolling to make the petition in this action
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timely.
Smith is not entitled to equitable tolling for his first federal action (Case No. 15-cv-1633)

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because that action was properly dismissed. Smith’s original petition in that action was dismissed

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with leave to amend because he had not specified the grounds for relief or the supporting facts.

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The court explained the deficiencies and gave Smith leave to file an amended petition. Smith

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never filed the amended petition in that action, and his failure to do so led to the dismissal of that

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action. The dismissal was proper. Smith later moved to reopen the action, but that motion was

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eventually denied because he never filed the amended petition the court had ordered him to file.

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Although equitable tolling, or a relation-back to the date of filing the earlier action, will be

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allowed when the earlier action has been improperly dismissed, that rule does not apply here

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United States District Court
Northern District of California

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because the dismissal of Smith’s first federal action was not improper. Compare Dils v. Small, 260

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F.3d 984, 986-87 (9th Cir. 2001) (federal petition does not relate back to earlier petition whose

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“life . . . has come to an end”; earlier petition had been properly dismissed for failure to exhaust,

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appeal from the dismissal had been dismissed, and mandate had been spread), and Fail v.

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Hubbard, 315 F.3d 1059, 1061-62 (9th Cir. 2001) (no equitable tolling for delay in earlier-filed

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federal action because petitioner continued to press his position even after the district court

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informed him of the exhaustion requirement that required dismissal under then-controlling law),

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with Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir. 2001), overruled on other grounds by Pliler

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v. Ford, 542 U.S. 225, 231 (2004) (equitable tolling warranted where district court dismissed prior

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timely mixed petition without providing petitioner an opportunity to delete unexhausted claim),

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and Jefferson v. Budge, 419 F.3d 1013, 1017 (9th Cir. 2005) (erroneous dismissal of a mixed

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petition justified equitable tolling from date of dismissal of first petition until the filing of the

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second petition). Here, Smith never filed an amended petition in Case No. 15-cv-1633) to cure the

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deficiencies identified in the court’s August 3, 2015 order.

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The petition that was filed to commence the present action (i.e., Docket No. 1 in Case No.

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16-cv-697) would not suffice as an amended petition in Case No. 15-cv-1633 because the

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document (a) was not labeled as an “amended petition” with the earlier case number written on it,

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as the court had ordered; (b) did not provide the facts supporting the grounds for relief, as the
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court had ordered; and (c) did not actually identify any of Smith’s federal constitutional rights that

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had been violated. There was no error at the courthouse in processing the document as a new

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petition to commence a new action because Smith opted to send in a petition for writ of habeas

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corpus not marked as an amended petition and not marked with the earlier case number. Even if

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Smith had marked the document as an amended petition in Case No. 15-cv-1633, it most likely

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would not have resulted in the reopening of that action because it was deficient in that it did not

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actually identify any of Smith’s federal constitutional rights that had been violated, did not

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adequately allege supporting facts, and referred the reader to exhibits that were not attached to the

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document and that apparently were not even in his possession. In short, the document he sent to

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the court about eleven months after filing the first federal action had such deficiencies that it

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United States District Court
Northern District of California

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would not have prompted the court to reopen the first action. The court concludes that Smith has

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not shown that he was diligently pursuing his rights or that some extraordinary circumstance stood

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in the way of him timely filing his federal petition. For these reasons, Smith is not entitled to

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equitable tolling for the time during which the first federal action was pending. Without any

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equitable tolling for the pendency of the first federal action, the petition in this action was filed

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eleven months after the one-year limitations period had expired on February 24, 2015.

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Further, even assuming arguendo that Smith was entitled to equitable tolling for the entire

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time after he sent his first federal petition to federal court, Smith nonetheless missed the deadline

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to file his federal habeas petition (albeit by only two days). Smith’s first federal petition was

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signed and mailed on February 26, 2015 (a Thursday), two days after the deadline to do so had

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passed on February 24, 2015 (a Tuesday). Although this seems a small miss, statute of limitations

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deadlines are firm deadlines, and missing the deadline by a few days still results in a missed

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deadline and a time-barred petition. Moreover, this was not a short and difficult deadline to meet:

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review had been denied by the California Supreme Court fifteen months earlier, on November 26,

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2013. Smith had fifteen months from that denial to get to federal court and did not do so. The

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petition would be untimely even if tolling was allowed from the first day he mailed his first federal

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petition.

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In summary, Smith failed to file his federal habeas petition before the statute of limitations

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period expired. Smith is not entitled to any statutory tolling or equitable tolling. The petition in

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this action was filed on January 25, 2016, about eleven months after the limitations period expired

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on February 24, 2015.

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CONCLUSION

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For the foregoing reasons, respondent’s motion to dismiss the petition is GRANTED.

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Docket No. 26. The petition is dismissed because it was not filed before the expiration of the

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habeas statute of limitations period. Petitioner’s motion for an extension of the deadline to file his

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United States District Court
Northern District of California

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opposition to the motion to dismiss is DENIED. Docket No. 15.
IT IS SO ORDERED.
Dated: May 1, 2017
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SUSAN ILLSTON
United States District Judge

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