James v. Superior Court of California

Filing 17

ORDER DENYING PETITIONERS MOTION FOR LEAVE TO AMEND PETITION; GRANTING RESPONDENTS MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY. ***Civil Case Terminated.*** Signed by Judge Saundra Brown Armstrong on 9/29/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 9/29/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL JAMES, Petitioner 8 v. 9 10 11 JEFFREY A. BEARD, Secretary of California Department of Corrections and Rehabilitation (“CDCR”), United States District Court Northern District of California Respondent. Case No: C 13-0885 SBA (PR) ORDER DENYING PETITIONER’S MOTION FOR LEAVE TO AMEND PETITION; GRANTING RESPONDENT’S MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY 12 13 Petitioner Michael James filed the instant pro se action for a writ of habeas corpus 14 15 pursuant to 28 U.S.C. § 2254. The parties are presently before the Court on Respondent’s 16 motion to dismiss the instant petition as untimely under the one-year limitations period 17 prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 18 U.S.C. § 2244(d). Also before the Court is a submission by Petitioner entitled, 19 “Declaration of Michael James In Support of [His] Motion to Amend Complaint,” which 20 the Court construes as a motion for leave to file an amended petition. Having read and considered the papers submitted and being fully informed, the 21 22 Court DENIES Petitioner’s motion for leave to file an amended petition, and GRANTS 23 Respondent’s motion to dismiss the petition. 24 25 I. BACKGROUND On February 3, 2009, Petitioner pleaded no contest to dissuading a witness by force 26 or threat in violation of California Penal Code § 136.1(c)(1). Petitioner later sought to 27 withdraw his plea, but the request was denied. On March 20, 2009, the state court 28 1 sen ntenced Pet titioner to th years in prison, su hree n uspended th execution of his sen he n ntence, and 2 pla aced him on probation for five yea n ars. On Jun 23, 2009, a petition to revoke P ne Petitioner’s probation w filed. O October was On r 3 4 13, 2009, the state court found Petit tioner in vio olation of th terms of his probation, he 5 com mmitted him to 120 da in jail fo the violat m ays or ation, and m modified the terms of his e 6 pro obation. Petition appeale both matt which w conso ner ed ters were olidated by t Californ Court of the nia 7 8 Ap ppeal. On May 11, 201 the Cali M 11, ifornia Cour of Appea affirmed Petitioner’s urt al s 9 con nviction. Answer, Ex. 1. On July 27, 2011, the Califor Suprem Court de A . y rnia me enied 10 rev view. Answ Ex. 2. wer, United States District Court Northern District of California 11 On Ma arch 23, 201 Petitioner filed his first federa petition in this Court alleging 12, al n t 12 sev veral claims See Case No. C 12s. e -01475 LHK (PR). On November 13, 2012, the Court K n r 13 dis smissed the petition ba ased on Peti itioner’s fai ilure to exha his stat court rem aust te medies prior r 14 to filing his fe ederal petiti ion. Answe Ex. 3; D kt. 4 of Cas No. C 12 er, se 2-01475 LH (PR) at HK 15 3. On Feb bruary 24, 2013,1 Petit 2 tioner filed the instant petition. D 1. In re Dkt. esponse, 16 17 Re espondent has filed a Motion to Dismiss Hab h M beas Petition as Untime n ely. Dkt. 9. The . 18 ma atter is fully briefed an is ripe for adjudicati y nd r ion. Dkt. 12 15. 2, 19 II. DISCU USSION 20 A. 21 With re egard to hab beas petitio district courts have “the discr ons, e retion to dec cide 22 hether the motion to am m mend should be granted Woods v. Carey, 5 F.3d 88 890 (9th d d.” s 525 86, h wh PETITIONER’S MOTION FOR LEAV TO AME PETITI R N VE END ION 23 24 25 26 27 28 1 A pro se federal or state hab o beas petitio is deemed filed on th date it is delivered on d he s to prison auth p horities for mailing. Se Saffold v Newland, 250 F.3d 1 m ee v. , 1262, 1268 (9th Cir. 2001), vacated and reman d nded on oth grounds Carey v. S her s, Saffold, 536 U.S. 214 (2002) olding that a federal or state habea petition i deemed f r as is filed on the date the pr risoner (ho sub bmits it to prison autho p orities for filing, rather than on th date it is received by the court). fi r he y Be ecause Petitioner signed the instan petition o February 24, 2013, t date would have nt on y that bee the earlie time he could have submitted it to prison authorities for mailing. en est e n s Th herefore, the Court deem the petit e ms tion filed on February 24, 2013. n 2 1 Cir 2008). Petitioner’s request for leave to am r. r mend is both procedura and sub h ally bstantively 2 inf firm. 3 Civil Local Rule 10-1 require any party seeking le L 1 es y eave to ame to provi a copy end ide 4 of the propose pleading which Pet ed g, titioner has failed to do Although Petitioner is pro se, o. r 5 he remains su ubject to the same rules and proced e s dures as a r represented party. See Ghazali v. d e 6 Mo oran, 46 F.3 52, 54 (9 Cir. 199 (per curi 3d 9th 95) iam). The f failure to co omply with the Local h 7 Ru ules, standin alone, wa ng arrants the denial of Pe etitioner’s m motion. Tr ri-Valley CA ARES v. 8 U.S. Dept. of Energy, 67 F.3d 1113, 1131 (9th Cir. 2012 (“Denial of a motion as the 71 h 2) n 9 res of a fail sult lure to com mply with loc rules is well within a district c cal n court’s disc cretion.”). Even if the motion were prop f n perly presen nted, the ba of the m asis motion is un nclear. 11 United States District Court Northern District of California 10 Pu ursuant to Rule 2(c) of the Rules Governing S R G Section 225 Cases, a federal hab 54 beas petition n 12 mu specify all grounds for relief and “state th facts sup ust a a he pporting eac ground.” Here, the ch 13 mo otion consis almost entirely of a discussion regarding t federal Whistleblo sts n the ower 14 Pro otection Ac and the Fa Claims Act, witho any elab ct alse s out boration as to how thes statutes se 15 relate, if at all to his hab l, beas petition or any pro n oposed claim Moreo ms. over, as will be l 16 dis scussed belo Petition ow, ner’s amend petition the operat pleadin before th Court, is ded n, tive ng he 17 tim me-barred. Accordingl any furth amendm to the p A ly, her ment petition wo ould be futil See le. 18 Bo onin v. Cald deron, 59 F.3d 815, 845 (9th Cir.1 5 1995) (“Futility of ame endment can by itself, n, 19 jus stify the den of a mo nial otion for lea to amen in a hab ave nd” beas action) Petitioner request ). r’s 20 for leave to am r mend is DE ENIED. 21 22 23 B. MOTION TO DISMISS 1. Analysis AEDPA which be A, ecame law on April 24 1996, imp 4, poses a stat of limit tute tations on 24 pet titions for a writ of hab beas corpus filed by st prisoner Petition filed by p s tate rs. ns prisoners 25 cha allenging non-capital state convic s ctions or sen ntences mu be filed w ust within one y of the year 26 latest date on which: (1) the judgme became final after t conclusion of direc review or ent the ct r 27 the time passe for seeki direct re e ed ing eview; (2) a impedim to filing an applica an ment g ation 28 cre eated by unc constitution state act nal tion was rem moved, if su action p uch prevented p petitioner 3 1 from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if 2 the right was newly recognized by the Supreme Court and made retroactive to cases on 3 collateral review; or (4) the factual predicate of the claim could have been discovered 4 through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). 5 The one-year period generally runs from “the date on which the judgment became 6 final by the conclusion of direct review or the expiration of the time for seeking such 7 review.” 28 U.S.C. § 2244(d)(1)(A). AEDPA’s one-year time limit, however, did not 8 begin to run against any state prisoner before the date of the Act’s enactment. Calderon v. 9 United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997) (allowing § 2244(d)’s limitations period to commence before AEDPA’s enactment would have an 11 United States District Court Northern District of California 10 impermissible retroactive effect), overruled in part on other grounds by Calderon v. United 12 States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). 13 A state prisoner with a conviction finalized after April 24, 1996, such as 14 Petitioner’s, ordinarily must file his federal habeas petition within one year of the date his 15 process of direct review came to an end. See id. “Direct review” includes the period 16 within which a petitioner can file a petition for a writ of certiorari from the United States 17 Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 18 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of 19 certiorari from the United States Supreme Court, AEDPA’s one-year limitations period 20 begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires. 21 See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file 22 petition for certiorari, his conviction became final ninety days after the California Supreme 23 Court denied review); Bowen, 188 F.3d at 1159 (same). 24 In the present case, the limitations period started running on October 25, 2011— 25 ninety days after the California Supreme Court denied review on July 27, 2011, when 26 Petitioner’s sentence became final. See id. Thus, Petitioner had one year from the time 27 the limitations period started running—or until October 25, 2012—to file his federal 28 habeas petition, absent tolling. Petitioner did not file the present petition until February 4 1 24, 2013—four months after the limitations period had expired. The petition is therefore 2 untimely unless Petitioner can show that he is entitled to tolling. 3 a) Statutory Tolling 4 The petition may nonetheless be timely if the limitations period was tolled under 28 5 U.S.C. § 2244(d)(2) for a substantial period of time. AEDPA’s one-year limitations period 6 is tolled under § 2244(d)(2) for the “‘time during which a properly filed application for 7 State post-conviction or other collateral review [with respect to the pertinent judgment or 8 claim] is pending.’” Dictado v. Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28 9 U.S.C. § 2244 (d)(2)), abrogated on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 10 (2005). United States District Court Northern District of California 11 Here, Petitioner is not eligible for statutory tolling because he did not file any 12 collateral petitions that would have served to avoid the statute of limitations. While 13 Petitioner filed a previous federal petition in this Court, it is well-established that an 14 application for federal habeas review is not an “application for State post-conviction or 15 other collateral review” within the meaning of § 2244(d)(2). Duncan v. Walker, 533 U.S. 16 167, 180-81 (2001). As such, the limitations period was not tolled for the eight-month 17 period during which Petitioner’s first federal petition was pending in this Court. Id. at 18 181.2 Because Petitioner is not entitled to statutory tolling, his petition is barred as 19 untimely under 28 U.S.C. § 2244(d)(1), unless he can show that he is entitled to equitable 20 tolling of the limitations period. 21 22 b) Equitable Tolling The Supreme Court has determined that AEDPA’s statute of limitations is subject to 23 equitable tolling in appropriate cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). 24 “When external forces, rather than a petitioner’s lack of diligence, account for the failure 25 26 27 28 2 The Supreme Court has left open the question whether the limitation period can be equitably tolled during the time a federal petition was pending in federal court. See Duncan, 533 U.S. at 181. But regardless of the answer, Petitioner has set forth no facts whatsoever showing that he is entitled to equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir 2002) (petitioner bears burden of showing that equitable tolling should apply to him). 5 1 to file a timely claim, equitable tolling of the statute of limitations may be appropriate.” 2 Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling will not be 3 available in most cases because extensions of time should be granted only if 4 “‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a 5 petition on time.” Beeler, 128 F.3d at 1288. The prisoner must show that “the 6 ‘extraordinary circumstances’ were the cause of his untimeliness.” Spitsyn v. Moore, 345 7 F.3d 796, 799 (9th Cir. 2003) (citations omitted). Another statement of the standard is that 8 a litigant seeking equitable tolling bears the burden of establishing two elements: “(1) that 9 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way,” preventing timely filing. Holland, 130 S. Ct. at 2562 (quoting Pace, 544 11 United States District Court Northern District of California 10 U.S. at 418); accord Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). 12 The Ninth Circuit has said that the petitioner “bears the burden of showing that this 13 extraordinary exclusion should apply to him.” Miranda v. Castro, 292 F.3d 1063, 1065 14 (9th Cir. 2002). Indeed, “‘the threshold necessary to trigger equitable tolling [under 15 AEDPA] is very high, lest the exceptions swallow the rule.’” Id. at 1066 (quoting United 16 States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). 17 Here, Petitioner does not contend in his opposition that he is entitled to equitable 18 tolling. Instead, Petitioner simply argues the merits of his case and the rules governing 19 habeas actions—all of which are inapposite to whether his petition is untimely under 20 AEDPA. In view of Petitioner’s failure to address the issue of equitable tolling, the Court 21 finds that affording him a further opportunity to do so would be futile. See Bonin v. 22 Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Based on the record presented, it is apparent 23 that Petitioner’s delay in filing his second federal petition (after exhausting his state court 24 remedies), rather than extraordinary circumstances, resulted in his untimely filing. See 25 Miranda, 292 F.3d at 1065. The Court finds that no basis for equitable tolling has been 26 presented and that the petition is untimely. 27 28 6 1 2 3 4 5 6 7 III. CERTIFICATE OF APPEALABILITY The federal rules governing habeas cases brought by state prisoners have been amended to require a district court that dismisses or denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). For the reasons stated above, Petitioner has not shown “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 IV. CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED THAT: 1. Petitioner’s motion for leave to amend his petition (dkt. 14) is DENIED. 2. Respondent’s motion to dismiss petition (dkt. 9) is GRANTED, and the petition is DISMISSED with prejudice. 3. A certificate of appealability is DENIED. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals. 4. The Clerk of the Court shall enter judgment, terminate all pending motions, and close the file. 5. This Order terminates Docket No. 9. 19 IT IS SO ORDERED. 20 21 Dated: 9/29/14 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 22 23 24 25 26 27 28 P:\PRO-SE\SBA\HC.13\James0885.grantMTD(sol)092214.docx 7

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