Lewis v. Virga

Filing 17

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton granting 15 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 6/19/2014)

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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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TONY RAY LEWIS, Jr.,
Petitioner,

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ORDER GRANTING
RESPONDENT'S MOTION TO
DISMISS AND DENYING
CERTIFICATE OF
APPEALABILITY

vs.
TIM VIRGA,

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For the Northern District of California

United States District Court

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No. C 13-1074 PJH (PR)

Respondent.

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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254.

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Respondent has filed a motion to dismiss on the grounds that the petition is barred by the

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statute of limitations and is procedurally defaulted. Petitioner has not filed an opposition or

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otherwise communicated with the court. For the reasons that follow, the motion will be

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granted.

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DISCUSSION

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Statute of Limitations

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The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which

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became law on April 24, 1996, imposed for the first time a statute of limitations on petitions

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for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging

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non-capital state convictions or sentences must be filed within one year of the latest of the

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date on which: (A) the judgment became final after the conclusion of direct review or the

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time passed for seeking direct review; (B) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing;

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(C) the constitutional right asserted was recognized by the Supreme Court, if the right was

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

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review; or (D) the factual predicate of the claim could have been discovered through the

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exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed

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application for state post-conviction or other collateral review is pending is excluded from

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the one-year time limit. Id. § 2244(d)(2).

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The one-year period may start running from "the expiration of the time for seeking

a petitioner can file a petition for a writ of certiorari from the United States Supreme Court,

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whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157,

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1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the

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United States Supreme Court, AEDPA's one-year limitations period begins to run on the

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For the Northern District of California

[direct] review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which

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United States District Court

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date the ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v.

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Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for

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certiorari, his conviction became final ninety days after the California Supreme Court

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

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Petitioner was sentenced on several counts in Alameda County to a twenty-year

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term on January 21, 2003. Motion to Dismiss (MTD), Ex. 1 at 6. On October 31, 2003, the

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California Court of Appeal affirmed the judgment. Id. The California Supreme Court denied

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review on January 14, 2004. Ex. 2, 3. Petitioner had ninety days to file a petition for a writ

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of certiorari with the Supreme Court. See Bowen, 188 F.3d at 1159. He did not. Thus,

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petitioner's one-year limitations period began to run on April 13, 2004, and expired on April

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13, 2005. See 28 U.S.C. § 2244(d)(1). The instant federal petition filed on March 8, 2013,

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is untimely absent tolling.

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Petitioner filed a state habeas petition in the Alameda County Superior Court on

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January 24, 2005, that was denied on January 28, 2005. Ex. 8; Pet. at 77. Another petition

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was filed in the Alameda County Superior Court on March 3, 2005, that was denied on

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March 9, 2005. Ex. 9; Ex. 5 at 6. Petitioner filed a state habeas petition in the California

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Court of Appeal on March 22, 2005, that was denied on April 25, 2005. Ex. 4. Petitioner

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then filed a habeas petition with the California Supreme Court on May 10, 2005, that was
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denied on April 19, 2006. Ex. 5-6.
More than four years after the California Supreme Court denied his habeas petition,

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petitioner filed a federal habeas petition in this court on October 14, 2010. See Lewis v.

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Virga, No. C 10-4649 PJH (PR). That case was dismissed on July 23, 2012, for failure to

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exhaust. Petitioner filed the instant federal petition on March 8, 2013.

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Assuming that petitioner would be entitled to statutory tolling for the time that all his

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state habeas petitions were pending, this case would still be untimely. The cases were

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pending in state court for nearly fifteen months, yet the first federal petition was not filed

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until four years after the last state petition was denied, and the instant petition was filed

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For the Northern District of California

United States District Court

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even later. Thus, the petition is untimely.
While petitioner has not filed an opposition to the motion to dismiss, the court notes

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that petitioner was previously ordered to show cause as to why the action should not be

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dismissed as untimely, and he filed a response. Docket No. 8. Even construing the

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response as an opposition to the motion to dismiss, the case must still be dismissed.

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Petitioner states that he relied on others to help him because he suffered from a mental

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disability and is illiterate. Petitioner provides no more information regarding the mental

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disability, and a pro se petitioner's lack of legal sophistication or illiteracy alone is not an

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extraordinary circumstance to justify equitable tolling. See Stancle v. Clay, 692 F.3d 948,

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952, 959 (9th Cir. 2012); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Baker v.

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Cal. Dep't of Corr., 484 Fed. Appx. 130, 131 (9th Cir. 2012) . Moreover, the claims in the

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instant petition are substantially similar to the claims he presented in his petition to the

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California Supreme Court that was denied in 2006, and petitioner fails to explain why there

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was a several year delay to present the same claims in federal court. For all these

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reasons, this case is dismissed as untimely.1

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As the petition is untimely by many years, the court will not address the procedural
default argument.
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CONCLUSION
Respondent’s motion to dismiss (Docket No. 15) is GRANTED as discussed above.
The petition is DISMISSED. The clerk shall close the file.

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APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a

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district court that enters a final order adverse to the petitioner to grant or deny a certificate

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of appealability (“COA”) in the order. See Rule 11(a), Rules Governing § 2254 Cases, 28

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U.S.C. foll. § 2254.

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A petitioner may not appeal a final order in a federal habeas corpus proceeding
without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App.

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For the Northern District of California

United States District Court

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P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a procedural

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question antecedent to the merits, for instance a dismissal on statute of limitations grounds,

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as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000).

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“Determining whether a COA should issue where the petition was dismissed on

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procedural grounds has two components, one directed at the underlying constitutional

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claims and one directed at the district court’s procedural holding.” Id. at 484-85. “When the

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district court denies a habeas petition on procedural grounds without reaching the

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prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at

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least, that jurists of reason would find it debatable whether the petition states a valid claim

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of the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Id. at 484. As each of these

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components is a “threshold inquiry,” the federal court “may find that it can dispose of the

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application in a fair and prompt manner if it proceeds first to resolve the issue whose

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answer is more apparent from the record and arguments.” Id. at 485. Supreme Court

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jurisprudence “allows and encourages” federal courts to first resolve the procedural issue,

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as was done here. See id.

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Here, the court declines to issue a COA regarding the procedural holding or the
underlying claims because reasonable jurists would not find the court’s findings debatable.
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The court therefore DENIES a COA.
IT IS SO ORDERED.
Dated: June 19, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.13\Lewis1074.mtd.wpd

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For the Northern District of California

United States District Court

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