Ledee v. Spearman

Filing 18

AMENDED ORDER re 10 motion to dismiss and denying certificate of appealability. (jdlc1S, COURT STAFF) (Filed on 10/26/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAWRENCE LEDEE, Plaintiff, 8 M ELLIOT SPEARMAN, United States District Court Northern District of California Re: Dkt. No. 10 Defendant. 11 12 AMENDED ORDER RE MOTION TO DISMISS; ORDER DENYING CERTIFICATE OF APPEALABILITY v. 9 10 Case No.16-cv-04616-JD At the Ninth Circuit’s request, the Court amends this order to state that a certificate of 13 appealability is denied for the reasons stated on page two. The order is not amended in any other 14 respect. 15 Defendant M. Elliot Spearman moves to dismiss Lawrence Ledee’s petition for writ of 16 habeas corpus on the grounds that it is untimely and procedurally defaulted. The petition is 17 dismissed as untimely under 28 U.S.C. § 2244(d). 18 19 DISCUSSION Section 2244(d) provides a one-year period of limitation for a habeas petition by a person 20 in custody pursuant to a state court judgment. This period begins on the latest of four dates, 21 described in Sections 2244(d)(1)(A) through (D). Most pertinent here is the application of Section 22 2244(d)(1)(D), “the date on which the factual predicate of the claim or claims presented could 23 have been discovered through the exercise of due diligence.” 24 Ledee argues that the factual predicate of his claim was not discovered until February 9, 25 2015, and that the claim “relies on a newly discovered legal issue.” Dkt. No. 13 at 4-5. Both of 26 these arguments miss the mark. In addition to showing that the claim was not actually discovered, 27 Ledee must show that the facts could not have been discovered through the exercise of due 28 diligence. Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). All of the facts underlying 1 Ledee’s petition could have been discovered through the exercise of due diligence by the date of 2 the sentencing hearing, October 17, 2012. Dkt. No. 1; see United States v. Battles, 362 F.3d 1195, 3 1998. Counsel’s formulation of a new legal theory based on known facts does not count against 4 the limitations period. Ford, 683 F.3d at 1235. 5 Ledee does not dispute that his conviction became final on May 20, 2014 for purposes of Section 2244(d)(1)(A), and that Sections 2244(d)(1)(B) and (C) do not apply. Dkt. No. 13 at 4-5. 7 In that case, the petition is untimely irrespective of whether statutory tolling is appropriate under 8 Section 2244(d)(2) during the pendency of Ledee’s state habeas petition. Dkt. No. 10 at 4; Dkt. 9 No. 13 at 4 (“Petitioner does not dispute Respondent’s calculations”). Ledee makes no argument 10 for equitable tolling, and the Court does not find it appropriate here. Consequently, the petition is 11 United States District Court Northern District of California 6 dismissed with prejudice. 12 The Court also denies a certificate of appealability pursuant to Rule 11(a) of the Rules 13 Governing Section 2254 Cases. Petitioner has failed to make a “substantial showing of the denial 14 of a constitutional right” on a claim. See 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 15 U.S. 473, 483-84 (2000) (explaining that an applicant satisfies this standard where he or she shows 16 that reasonable jurists could find the issues debatable or that the issues are “adequate to deserve 17 encouragement to proceed further”). 18 19 IT IS SO ORDERED. Dated: October 26, 2017 20 21 JAMES DONATO United States District Judge 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?