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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MICHAEL JAMES,
Petitioner

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v.
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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

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Petitioner Michael James filed the instant pro se action for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The parties are presently before the Court on Respondent’s

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motion to dismiss the instant petition as untimely under the one-year limitations period

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prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

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U.S.C. § 2244(d). Also before the Court is a submission by Petitioner entitled,

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“Declaration of Michael James In Support of [His] Motion to Amend Complaint,” which

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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

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Court DENIES Petitioner’s motion for leave to file an amended petition, and GRANTS

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Respondent’s motion to dismiss the petition.

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I.

BACKGROUND
On February 3, 2009, Petitioner pleaded no contest to dissuading a witness by force

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or threat in violation of California Penal Code § 136.1(c)(1). Petitioner later sought to

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withdraw his plea, but the request was denied. On March 20, 2009, the state court

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sen
ntenced Pet
titioner to th years in prison, su
hree
n
uspended th execution of his sen
he
n
ntence, and

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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

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13, 2009, the state court found Petit
tioner in vio
olation of th terms of his probation,
he

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com
mmitted him to 120 da in jail fo the violat
m
ays
or
ation, and m
modified the terms of his
e

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pro
obation.
Petition appeale both matt which w conso
ner
ed
ters
were
olidated by t Californ Court of
the
nia

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Ap
ppeal. On May 11, 201 the Cali
M
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ifornia Cour of Appea affirmed Petitioner’s
urt
al
s

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con
nviction. Answer, Ex. 1. On July 27, 2011, the Califor Suprem Court de
A
.
y
rnia
me
enied

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rev
view. Answ Ex. 2.
wer,

United States District Court
Northern District of California

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On Ma
arch 23, 201 Petitioner filed his first federa petition in this Court alleging
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al
n
t

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sev
veral claims See Case No. C 12s.
e
-01475 LHK (PR). On November 13, 2012, the Court
K
n
r

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dis
smissed the petition ba
ased on Peti
itioner’s fai
ilure to exha his stat court rem
aust
te
medies prior
r

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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

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3.
On Feb
bruary 24, 2013,1 Petit
2
tioner filed the instant petition. D 1. In re
Dkt.
esponse,

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Re
espondent has filed a Motion to Dismiss Hab
h
M
beas Petition as Untime
n
ely. Dkt. 9. The
.

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ma
atter is fully briefed an is ripe for adjudicati
y
nd
r
ion. Dkt. 12 15.
2,

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II.

DISCU
USSION

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A.

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With re
egard to hab
beas petitio district courts have “the discr
ons,
e
retion to dec
cide

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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

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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
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Cir 2008). Petitioner’s request for leave to am
r.
r
mend is both procedura and sub
h
ally
bstantively

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inf
firm.

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Civil Local Rule 10-1 require any party seeking le
L
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es
y
eave to ame to provi a copy
end
ide

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of the propose pleading which Pet
ed
g,
titioner has failed to do Although Petitioner is pro se,
o.
r

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he remains su
ubject to the same rules and proced
e
s
dures as a r
represented party. See Ghazali v.
d
e

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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

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Ru
ules, standin alone, wa
ng
arrants the denial of Pe
etitioner’s m
motion. Tr
ri-Valley CA
ARES v.

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U.S. Dept. of Energy, 67 F.3d 1113, 1131 (9th Cir. 2012 (“Denial of a motion as the
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h
2)
n

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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.

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United States District Court
Northern District of California

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Pu
ursuant to Rule 2(c) of the Rules Governing S
R
G
Section 225 Cases, a federal hab
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beas petition
n

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mu specify all grounds for relief and “state th facts sup
ust
a
a
he
pporting eac ground.” Here, the
ch

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mo
otion consis almost entirely of a discussion regarding t federal Whistleblo
sts
n
the
ower

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Pro
otection Ac and the Fa Claims Act, witho any elab
ct
alse
s
out
boration as to how thes statutes
se

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relate, if at all to his hab
l,
beas petition or any pro
n
oposed claim Moreo
ms.
over, as will be
l

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dis
scussed belo Petition
ow,
ner’s amend petition the operat pleadin before th Court, is
ded
n,
tive
ng
he

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tim
me-barred. Accordingl any furth amendm to the p
A
ly,
her
ment
petition wo
ould be futil See
le.

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Bo
onin v. Cald
deron, 59 F.3d 815, 845 (9th Cir.1
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1995) (“Futility of ame
endment can by itself,
n,

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jus
stify the den of a mo
nial
otion for lea to amen in a hab
ave
nd”
beas action) Petitioner request
).
r’s

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for leave to am
r
mend is DE
ENIED.

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B.

MOTION TO DISMISS
1.

Analysis

AEDPA which be
A,
ecame law on April 24 1996, imp
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poses a stat of limit
tute
tations on

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pet
titions for a writ of hab
beas corpus filed by st prisoner Petition filed by p
s
tate
rs.
ns
prisoners

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cha
allenging non-capital state convic
s
ctions or sen
ntences mu be filed w
ust
within one y of the
year

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latest date on which: (1) the judgme became final after t conclusion of direc review or
ent
the
ct
r

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the time passe for seeki direct re
e
ed
ing
eview; (2) a impedim to filing an applica
an
ment
g
ation

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cre
eated by unc
constitution state act
nal
tion was rem
moved, if su action p
uch
prevented p
petitioner
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from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if

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the right was newly recognized by the Supreme Court and made retroactive to cases on

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collateral review; or (4) the factual predicate of the claim could have been discovered

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through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1).

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The one-year period generally runs from “the date on which the judgment became

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final by the conclusion of direct review or the expiration of the time for seeking such

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review.” 28 U.S.C. § 2244(d)(1)(A). AEDPA’s one-year time limit, however, did not

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begin to run against any state prisoner before the date of the Act’s enactment. Calderon v.

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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

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United States District Court
Northern District of California

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impermissible retroactive effect), overruled in part on other grounds by Calderon v. United

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States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc).

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A state prisoner with a conviction finalized after April 24, 1996, such as

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Petitioner’s, ordinarily must file his federal habeas petition within one year of the date his

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process of direct review came to an end. See id. “Direct review” includes the period

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within which a petitioner can file a petition for a writ of certiorari from the United States

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Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe,

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188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of

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certiorari from the United States Supreme Court, AEDPA’s one-year limitations period

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begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires.

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See 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 ninety days after the California Supreme

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Court denied review); Bowen, 188 F.3d at 1159 (same).

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In the present case, the limitations period started running on October 25, 2011—

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ninety days after the California Supreme Court denied review on July 27, 2011, when

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Petitioner’s sentence became final. See id. Thus, Petitioner had one year from the time

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the limitations period started running—or until October 25, 2012—to file his federal

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habeas petition, absent tolling. Petitioner did not file the present petition until February
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24, 2013—four months after the limitations period had expired. The petition is therefore

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untimely unless Petitioner can show that he is entitled to tolling.

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a)

Statutory Tolling

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The petition may nonetheless be timely if the limitations period was tolled under 28

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U.S.C. § 2244(d)(2) for a substantial period of time. AEDPA’s one-year limitations period

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is tolled under § 2244(d)(2) for the “‘time during which a properly filed application for

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State post-conviction or other collateral review [with respect to the pertinent judgment or

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claim] is pending.’” Dictado v. Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28

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U.S.C. § 2244 (d)(2)), abrogated on other grounds by Pace v. DiGuglielmo, 544 U.S. 408

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(2005).

United States District Court
Northern District of California

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Here, Petitioner is not eligible for statutory tolling because he did not file any

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collateral petitions that would have served to avoid the statute of limitations. While

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Petitioner filed a previous federal petition in this Court, it is well-established that an

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application for federal habeas review is not an “application for State post-conviction or

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other collateral review” within the meaning of § 2244(d)(2). Duncan v. Walker, 533 U.S.

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167, 180-81 (2001). As such, the limitations period was not tolled for the eight-month

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period during which Petitioner’s first federal petition was pending in this Court. Id. at

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181.2 Because Petitioner is not entitled to statutory tolling, his petition is barred as

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untimely under 28 U.S.C. § 2244(d)(1), unless he can show that he is entitled to equitable

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tolling of the limitations period.

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b)

Equitable Tolling

The Supreme Court has determined that AEDPA’s statute of limitations is subject to

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equitable tolling in appropriate cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010).

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“When external forces, rather than a petitioner’s lack of diligence, account for the failure

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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).
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to file a timely claim, equitable tolling of the statute of limitations may be appropriate.”

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Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling will not be

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available in most cases because extensions of time should be granted only if

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“‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a

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petition on time.” Beeler, 128 F.3d at 1288. The prisoner must show that “the

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‘extraordinary circumstances’ were the cause of his untimeliness.” Spitsyn v. Moore, 345

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F.3d 796, 799 (9th Cir. 2003) (citations omitted). Another statement of the standard is that

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a litigant seeking equitable tolling bears the burden of establishing two elements: “(1) that

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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

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United States District Court
Northern District of California

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U.S. at 418); accord Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006).

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The Ninth Circuit has said that the petitioner “bears the burden of showing that this

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extraordinary exclusion should apply to him.” Miranda v. Castro, 292 F.3d 1063, 1065

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(9th Cir. 2002). Indeed, “‘the threshold necessary to trigger equitable tolling [under

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AEDPA] is very high, lest the exceptions swallow the rule.’” Id. at 1066 (quoting United

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States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).

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Here, Petitioner does not contend in his opposition that he is entitled to equitable

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tolling. Instead, Petitioner simply argues the merits of his case and the rules governing

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habeas actions—all of which are inapposite to whether his petition is untimely under

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AEDPA. In view of Petitioner’s failure to address the issue of equitable tolling, the Court

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finds that affording him a further opportunity to do so would be futile. See Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Based on the record presented, it is apparent

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that Petitioner’s delay in filing his second federal petition (after exhausting his state court

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remedies), rather than extraordinary circumstances, resulted in his untimely filing. See

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Miranda, 292 F.3d at 1065. The Court finds that no basis for equitable tolling has been

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presented and that the petition is untimely.

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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.

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United States District Court
Northern District of California

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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.

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IT IS SO ORDERED.
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Dated: 9/29/14

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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P:\PRO-SE\SBA\HC.13\James0885.grantMTD(sol)092214.docx

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