Patton v. Cate

Filing 17

ORDER by Judge Claudia Wilken GRANTING 12 MOTION TO DISMISS, GRANTING 13 EXTENSION OF TIME TO FILE OPPOSITION AND GRANTING LEAVE TO FILE SUPPLEMENTAL TRAVERSE. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 4/16/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 ORDER GRANTING MOTION TO DISMISS, GRANTING EXTENSION OF TIME TO FILE OPPOSITION AND GRANTING LEAVE TO FILE SUPPLEMENTAL TRAVERSE Petitioner, 5 6 No. C 12-1913 CW (PR) ANTHONY PATTON, v. 7 VIMAL SINGH, Warden, 8 Respondent. ________________________________/ (Docket nos. 12, 13) 9 United States District Court For the Northern District of California 10 Petitioner, a state prisoner incarcerated at the California 11 Medical Facility in Vacaville, filed the present pro se petition 12 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 13 Respondent has filed a motion to dismiss the petition and 14 Petitioner has opposed the motion.1 15 below, the motion to dismiss is GRANTED and leave is GRANTED to 16 Petitioner to file a supplemental traverse. 17 18 For the reasons discussed BACKGROUND In March 2000, a Contra Costa County jury convicted 19 Petitioner of two counts of carjacking. 20 separate court trial, the trial court found true allegations that 21 Petitioner had suffered two or more prior convictions and, under 22 California’s “Three Strikes” law, sentenced him to thirty-five 23 years to life in prison. Resp’t Ex. A.2 In a Id. 24 25 26 27 28 1 Petitioner’s request for an extension of time to file his opposition is GRANTED. The opposition filed on March 4, 2013, is deemed timely. 2 All citations to exhibits are to those filed by Respondent in support of the motion to dismiss, unless otherwise noted. 1 On December 13, 2002, the California Court of Appeal affirmed 2 the conviction. 3 Court denied review. 4 Id. On February 19, 2003, the California Supreme Ex. B. More than seven years later, on July 12, 2010, Petitioner 5 filed a habeas petition in the California Court of Appeal. 6 petition was denied on August 25, 2010. 7 2010, Petitioner filed a habeas petition in the California Supreme 8 Court. 9 to In re Robbins, 18 Cal.4th 770, 780 (1998), which stands for the United States District Court For the Northern District of California 10 11 Ex. C. The On September 7, The petition was denied on April 27, 2011, with a citation proposition that the petition is untimely. Ex. D. Thereafter, Petitioner filed a habeas petition in the 12 Superior Court of Contra Costa County, challenging the validity of 13 his sentence under the Three Strikes law. 14 denied the petition on June 22, 2011, finding that it failed to 15 state a prima facie claim for relief, the claims were, or could 16 have been, raised on appeal, and the petition was untimely because 17 it was filed more than a decade after Petitioner was sentenced. 18 Pet. “Attachment” at 3-4. 19 second habeas petition in the California Court of Appeal. 20 petition was denied on July 27, 2011, without citation or comment. 21 Ex. E. 22 the California Supreme Court. 23 21, 2011, without citation or comment. 24 The Superior Court On July 14, 2011, Petitioner filed a The On August 11, 2011, Petitioner filed a habeas petition in The petition was denied on December Ex. F. Petitioner filed the present petition on April 17, 2012. 25 claims (1) the evidence was insufficient to find that his prior 26 convictions qualify as strikes under the Three Strikes law, 27 (2) the Three Strikes law violates the federal constitutional 28 protections of equal protection and due process, and the He 1 prohibitions against double jeopardy and cruel and unusual 2 punishment, and (3) application of the Three Strikes law 3 constitutes a breach of his prior plea agreements. 4 DISCUSSION 5 6 Respondent moves to dismiss the petition as untimely. A. 7 One-Year Statute of Limitations Under the Antiterrorism and Effective Death Penalty Act 8 (AEDPA), petitions filed by prisoners challenging non-capital 9 state convictions or sentences ordinarily must be filed within one United States District Court For the Northern District of California 10 year from the date on which the judgment became final by the 11 conclusion of direct review or the expiration of the time for 12 seeking such review. 13 28 U.S.C. § 2244(d)(1)(A). In the present case, Petitioner’s conviction became final on 14 May 20, 2003, ninety days after the California Supreme Court 15 denied review on direct appeal. 16 292 F.3d 1063, 1065 (9th Cir. 2002). 17 May 20, 2004, to file a timely federal petition. 18 not file the present petition until April 17, 2012, it is untimely 19 absent statutory tolling, an exception to the ordinary limitations 20 period, or equitable tolling. 21 B. 22 See Miranda v. Castro, Consequently, he had until Because he did Statutory Tolling The one-year statute of limitations is tolled for the “time 23 during which a properly filed application for State post- 24 conviction or other collateral review with respect to the 25 pertinent judgment or claim is pending.” 26 § 2244(d)(2). 27 not toll the limitations period under § 2244(d)(2) because his 28 first state habeas petition was not filed until 2010, several See 28 U.S.C. Here, Petitioner’s state collateral challenges do 1 years after the limitations period had expired. 2 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding once AEDPA’s 3 limitations period has run it cannot be revived by filing of state 4 habeas petition). 5 of the limitations period. 6 See Ferguson v. Thus, he is not entitled to statutory tolling Petitioner argues the petition should be found timely because 7 the constitutionality of a statute, i.e., the Three Strikes law, 8 can be challenged at any time, and because California law does not 9 have a statute of limitations for the filing of habeas corpus United States District Court For the Northern District of California 10 petitions. 11 Petitioner is attempting to overturn his sentence by 12 challenging the constitutionality of the Three Strikes law and the 13 sufficiency of the evidence relied upon to find true the 14 allegations of prior convictions. 15 within the one-year statutory filing requirement of 16 § 2244(d)(1)(A). 17 limitations for filing state post-conviction habeas petitions has 18 no bearing on the applicability of the federal statute of 19 limitations for filing a federal habeas corpus petition. 20 Such challenges fall squarely Further, the lack of a California statute of Accordingly, Petitioner is not entitled to statutory tolling 21 and Respondent’s motion to dismiss the petition as untimely is 22 GRANTED.3 23 C. 24 25 Equitable Tolling The one-year statute of limitations is subject to equitable tolling. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). “[A] 26 3 27 28 Additionally, Petitioner neither argues nor alleges facts which show that he is entitled to delayed commencement of the limitations period under § 2244(d)(1)(B)-(D). 1 petitioner is entitled to equitable tolling only if he shows 2 (1) that he has been pursuing his rights diligently, and (2) that 3 some extraordinary circumstance stood in his way and prevented 4 timely filing.” 5 Id. at 2562 (quotation and citation omitted). Neither party herein has raised the issue of equitable tolling, and the Court expresses no opinion as to whether such 7 tolling is warranted in this action. 8 se status, however, leave is hereby GRANTED to Petitioner to file 9 a supplemental traverse in which he argues that he is entitled to 10 United States District Court For the Northern District of California 6 equitable tolling, if he is of the good-faith belief that grounds 11 for such tolling exist and he possesses factual and legal support 12 for his argument. 13 D. 14 In view of Petitioner’s pro Notice of Appeal Petitioner has filed a notice of appeal, which the Court 15 construes as a request for a certificate of appealability. 16 request is DENIED as premature, as final judgment has not been 17 entered in this case. 18 The CONCLUSION 19 For the foregoing reasons, the Court orders as follows: 20 1. 21 is GRANTED. 22 2. Respondent’s motion to dismiss the petition as untimely Docket no. 12. Petitioner’s motion for an extension of time to file his 23 opposition to the motion to dismiss is GRANTED. 24 The opposition filed on March 4, 2013 is deemed timely. 25 3. Docket no. 13. Leave is GRANTED to Petitioner to file a supplemental 26 traverse on the matter of equitable tolling if he is of the good- 27 faith belief that grounds for such tolling exist and he possesses 28 factual and legal support for his argument. 1 The supplemental traverse shall be filed and served on 2 Respondent no later than twenty-eight days from the date of this 3 Order. 4 4. Respondent shall file and serve on Petitioner a response 5 to the supplemental traverse no later than fourteen days from the 6 date it is filed. 7 5. If Petitioner fails to comply with this Order in a 8 timely manner, a judgment of dismissal will be entered in favor of 9 Respondent. United States District Court For the Northern District of California 10 This Order terminates Docket Nos. 12 and 13. 11 IT IS SO ORDERED. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: 4/16/2013 ____________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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