Saechao v. Davey

Filing 13

ORDER of Dismissal signed by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 2/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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Case No. 16-cv-00728-EMC

SENG CHOY SAECHAO,

ORDER OF DISMISSAL

v.

Docket No. 10
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Respondent.

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For the Northern District of California

United States District Court

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PAT L. VAZQUEZ,

I.

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INTRODUCTION

Seng Choy Saechao 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, and Mr.

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Saechao has opposed the motion. For the reasons discussed below, the Court dismisses the action

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as untimely because the statute of limitations deadline expired more than fifteen years before Mr.

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Saechao filed his habeas petition.
II.

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BACKGROUND

The petition in this action challenges 1996 and 1997 convictions and sentences in two
cases from Marin County Superior Court. See Docket No. 1-1 at 4-7.
In one case (i.e., Marin County Superior Court Case No. SC088707), following a jury trial,

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Mr. Saechao was convicted of assault with a firearm, possession of a concealed dirk or dagger,

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possession of a firearm by a felon, and carrying a concealed firearm. Sentence enhancement

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allegations were found true. On April 14, 1997, Mr. Saechao was sentenced to fifty-one years to

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life in prison. Id. at 4, 21-23.

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In the other case (i.e., Marin County Superior Court Case No. SC090350), Mr. Saechao
pled guilty and was convicted of carjacking and possession of a firearm by a felon. Sentence

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enhancement allegations were found true. On July 21, 1997, Mr. Saechao was sentenced to

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twenty years in prison. Docket No. 1-1 at 7, 24-26.

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Mr. Saechao appealed the conviction in the first case, but not in the second case. On

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December 23, 1998, the judgment of conviction in Case No. SC088707 was affirmed by the

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California Court of Appeal. On March 9, 1999, Mr. Saechao’s petition for review was denied by

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the California Supreme Court.

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About fifteen years later, Mr. Saechao began his collateral attacks on both of these

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convictions. He filed several petitions in the state courts jointly attacking both of these

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convictions. Mr. Saechao filed a habeas petition in the California Court of Appeal on October 21,

Saechao filed a habeas petition in the California Supreme Court on December 1, 2014, which was

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For the Northern District of California

2014, which was denied on October 30, 2014 (i.e., Cal. Ct. App. Case No. A143314). Next, Mr.

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United States District Court

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denied on February 11, 2015 (i.e., Cal. S. Ct. No. S223056). On the same day he filed his first

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habeas petition in the California Supreme Court, Mr. Saechao filed another habeas petition in the

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California Court of Appeal on December 1, 2014, which was denied on December 3, 2014 (i.e.,

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Cal. Ct. App. Case No. A143629). Mr. Saechao filed another habeas petition in the California

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Court of Appeal on January 16, 2015, which was denied on January 21, 2015 (Cal. Ct. App. Case

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No. A143984).

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In August 2015, Mr. Saechao filed in the Marin County Superior Court a request under

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California Penal Code § 1170.18 to reduce a felony to a misdemeanor in Case No. SC090350.

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The superior court determined that Mr. Saechao was not eligible for resentencing under § 1170.18

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and denied his request. Docket No. 1-1 at 15. This proceeding did not challenge the convictions

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or sentences from 1996 and 1997; instead, this proceeding resulted from a change in the law in

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November 2014 when Proposition 47 was approved by California voters. Section 1170.18

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provided a procedure for prisoners to file petitions for recall of a sentence to have felonies reduced

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to misdemeanors under certain specified conditions. See Harris v. Superior Court, 1 Cal. 5th 984,

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989-92 (Cal. 2016).

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From the record, it cannot be determined whether they were challenges to the denial of his §

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1170.18 request or challenges to the 1996 and 1997 convictions. To give Mr. Saechao the benefit

Thereafter, Mr. Saechao filed two more habeas petitions in the state courts.

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of the doubt, the Court will assume for present purposes that these petitions challenged the 1996

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and 1997 convictions. Mr. Saechao filed a habeas petition in the California Court of Appeal on

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October 5, 2015, which was denied on October 15, 2015 (i.e., Cal. Ct. App. Case No. A146398).

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Mr. Saechao filed a habeas petition in the Marin County Superior Court on October 19, 2015,

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which was denied on November 25, 2015, using the same case number (SC195030) as was used in

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the original case in 1997.

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Mr. Saechao’s federal petition for writ of habeas corpus has a proof of service showing it

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was mailed to the U.S. District Court in Santa Rosa, California, on January 25, 2016. Docket No.

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1 at 29. The envelope has a January 26, 2016 postmark, and was addressed to a court in Santa

sent his petition was the U.S. Bankruptcy Court, rather than the U.S. District Court. The petition

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For the Northern District of California

Rosa, California. Docket No. 1-2. The court at the address in Santa Rosa to which Mr. Saechao

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United States District Court

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was forwarded and stamped “filed” at this Court in San Francisco on February 12, 2016.

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Applying the prison mailbox rule, the Court assumes for present purposes that Mr. Saechao gave

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his petition to prison officials to mail on the date he signed the proof of service, and deems the

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petition to have been filed as of January 25, 2016, even though it was mailed to the wrong federal

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court. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule provides that

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pro se prisoner’s filing of a document is deemed to have occurred when he gives it to prison

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officials to mail to the court).

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III.

DISCUSSION

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

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of limitations on petitions for 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).
Mr. Saechao’s federal petition for writ of habeas corpus suggested his two criminal cases

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were combined or otherwise consolidated in the Marin County Superior Court. It turns out that

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the cases took different paths in the trial court and with regard to Mr. Saechao’s direct appeal. As

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a result, the starting date for the limitations period for each of the two cases must be calculated

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separately.

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Marin County Superior Court Case No. SC088707: The limitations period began when the

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judgment became final upon “the expiration of the time for seeking [direct] review.” 28 U.S.C.

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§ 2244(d)(1)(A). “[W]hen a petitioner fails to seek a writ of certiorari from the United States

period defined by Supreme Court Rule 13 expires.” Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.

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For the Northern District of California

Supreme Court, the AEDPA’s one-year limitations period begins to run on the date the ninety-day

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United States District Court

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1999). The California Supreme Court denied Mr. Saechao’s petition for review on March 9, 1999.

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His conviction in Marin County Superior Court Case No. SC088707 became final 90 days

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thereafter, on June 7, 1999, because he did not petition for writ of certiorari. See Greene v. Fisher,

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132 S. Ct. 38, 44 (2011) (“Finality occurs when direct state appeals have been exhausted and a

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petition for writ of certiorari from this Court has become time barred or has been disposed of”).

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His one-year limitations period thus began on June 7, 1999, and he had a presumptive deadline of

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June 7, 2000, to file his federal habeas petition challenging this conviction.

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Marin County Superior Court Case No. SC090350: The limitations period in this case

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began when the judgment became final upon “the expiration of the time for seeking [direct]

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review.” 28 U.S.C. § 2244(d)(1)(A). Where, as here, a petitioner could have sought review in the

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state court of appeals or the state supreme court, but did not, the limitations period begins on the

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day after the date on which the time to seek such review expired. Gonzalez v. Thaler, 132 S. Ct.

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641, 653-54 (2012). The rule for California criminal defendants in 1997 was that, where the

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defendant did not pursue a direct appeal, his judgment became final 60 days after the sentence was

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imposed. See former Cal. Rule of Court 31 (1994) (later amended effective Jan. 1, 2007, and

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renumbered as Rule 8.308); People v. Mendez, 19 Cal. 4th 1084, 1094 (Cal. 1999). Mr. Saechao

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was sentenced on July 21, 1997, and his judgment became final 60 days later, on September 19,
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1997, because he did not appeal. His one-year limitations period thus began on September 19,

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1997, and he had a presumptive deadline of September 19, 1998, to file his federal habeas petition

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challenging this conviction.
The next step in both of Mr. Saechao’s cases is to determine whether statutory tolling

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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). Mr. Saechao does not receive any

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statutory tolling for either of his cases because the limitations period for each case expired long

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before he filed his first state habeas petition in 2014. His state habeas petitions were filed after the

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limitations period had expired and therefore had no tolling effect. See Ferguson v. Palmateer, 321

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F.3d 820, 823 (9th Cir. 2003) (“[§] 2244(d) does not permit the reinitiation of the limitations

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For the Northern District of California

applies. The one-year limitations period can be tolled for the “time during which a properly filed

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United States District Court

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period that has ended before the state petition was filed,” even if the state petition was timely

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filed).

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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); see also Rasberry v. Garcia, 448 F.3d 1150, 1153

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(9th Cir. 2006). Mr. Saechao has not shown any reason to equitably toll the limitations period in

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either of his two cases.

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Mr. Saechao filed an opposition to the motion to dismiss, but his arguments in his

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opposition do not defeat Respondent’s motion. Mr. Saechao argues that Respondent’s motion

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failed to mention a 1993 conviction Mr. Saechao suffered. Docket No. 11. But Mr. Saechao does

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not show that the 1993 conviction has any bearing on the timeliness of his federal habeas petition

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challenging his 1997 convictions. Mr. Saechao’s opposition also discusses the merits of his

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claims for habeas relief. The substance of the claims in a petition does not matter for purposes of

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determining whether the petition was filed on time. Whether or not his claims are meritorious, a

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habeas petitioner must file his petition before the expiration of the limitations period to have those
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claims considered.
Mr. Saechao’s federal petition for writ of habeas corpus filed on January 25, 2016, was

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filed more than fifteen years after the expiration of the federal habeas statute of limitations period

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for Marin County Superior Court Case No. SC088707 and more than seventeen years after the

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expiration of the federal habeas statute of limitations period for Marin County Superior Court

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Case No. SC090350. Mr. Saechao’s federal petition for writ of habeas corpus must be dismissed

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as untimely.

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A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in
which “jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IV.

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For the Northern District of California

United States District Court

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CONCLUSION

Respondent’s motion to dismiss is GRANTED. Docket No. 10. This action is dismissed

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because the petition for writ of habeas corpus was not filed before the expiration of the habeas

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statute of limitations period. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: February 3, 2017
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EDWARD M. CHEN
United States District Judge

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