James D Fox v. Kim Holland

Filing 17

ORDER RE: MOTION TO DISMISS; DIRECTING PARTIES TO SUBMIT SUPPLEMENTAL BRIEFING re 10 MOTION to Dismiss Habeas Petition as Untimely filed by Kim Holland. Signed by Judge Yvonne Gonzalez Rogers on 5/11/16. (fs, COURT STAFF) (Filed on 5/11/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES DANIEL FOX,
Petitioner,

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v.
KIM HOLLAND, WARDEN,
Respondent.

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I.

ORDER RE: MOTION TO DISMISS;
DIRECTING PARTIES TO SUBMIT
SUPPLEMENTAL BRIEFING
Re: Dkt. No. 10

INTRODUCTION
Petitioner James Daniel Fox filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

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United States District Court
Northern District of California

Case No. 15-cv-02134 YGR

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section 2254, alleging he is unlawfully imprisoned as the consequence of a time-barred

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prosecution in violation of the Ex Post Facto Clause in the Unites States Constitution. (Dkt. No.

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1, “Pet.”) Before the Court is Respondent’s motion to dismiss the petition as untimely under the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. section 2244(d).

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Petitioner opposes, asserting defenses of delayed commencement and equitable tolling.
Having considered the papers submitted by the parties and the pleadings in this action, and

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for the reasons set forth below, the Court rejects Petitioner’s delayed commencement argument

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and requires additional briefing with respect to his equitable tolling argument.1

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II.

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BACKGROUND
On April 22, 2010, Petitioner pled no contest in the Santa Clara Superior Court to three

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counts of engaging in lewd or lascivious acts with a minor when she was 12, 13, and 14 years old.

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(Pet., Exh. A; id., Exh. E, “Superior Court Order,” at 2.) The negotiated plea permitted dismissal

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of four additional counts. (Id. at 1.) The offenses to which Petitioner pled no contest occurred

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between March 2000 and June 2003. (Id., Exh. E at 2.) They included violations of California

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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court
finds this motion appropriate for decision without oral argument.

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Penal Code sections 288(a) and 288(c)(1). (Id., Exh. B.) On August 3, 2010, Petitioner was

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sentenced to six years imprisonment. (Id. at 2.) Petitioner did not appeal his judgment, which

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became final sixty days after his August 3, 2010 sentencing, or on October 2, 2010.

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On August 30, 2012 – a year and ten months after Petitioner’s conviction became final –
Petitioner filed his first state petition for a writ of habeas corpus (the “State Habeas”) in Santa

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Clara County Superior Court. (See Superior Court Order.) In support of his State Habeas,

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Petitioner alleged that his trial lawyer provided ineffective assistance of counsel (“IAC”) for

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failing to raise a relevant statute of limitations defense with the court or in consultation with

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Petitioner.2 (Id. at 1.) The criminal complaint in Petitioner’s case was filed in December 2009,

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nearly a decade after the earliest alleged offense took place. (Id.) After the alleged offenses, but

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United States District Court
Northern District of California

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before Petitioner was charged, California legislation extended the applicable statute of limitations

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from three years to ten years. (Id. at 2.) The State Habeas contended that the original three-year

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statute of limitations, rather than the later enacted ten-year statutory limit, applied at the time he

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committed the offenses, rendering his prosecution time-barred – an argument his trial attorney

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failed to raise. (Id.) The Superior Court Order denied the State Habeas, reasoning that

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Petitioner’s prosecution was not time-barred because the applicable statute of limitations “had

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been extended before the limitations period had expired on the earliest [of Petitioner’s crimes].”

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(Id. at 2.) In the absence of an underlying violation, the court found that Petitioner’s IAC claim

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could not survive. (Id.)

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On November 27, 2013, Petitioner filed a petition for a writ of habeas corpus in the

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California Court of Appeal, which was denied without written opinion on June 23, 2014. (Pet.,

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Exh. D.) On November 26, 2014, Petitioner filed a petition for a writ of habeas corpus in the

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California Supreme Court. The California Supreme Court denied the petition en banc without a

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written opinion on March 25, 2015. (Pet., Exh. C.)

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On May 12, 2015, Petitioner filed the present petition for writ of habeas corpus under 28

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Petitioner additionally claimed IAC on the grounds that his attorney falsely threatened
him with a life term in prison, a claim that the Superior Court also denied. (See Superior Court
Order.) That alternate IAC claim is irrelevant to the matter pending before this Court.
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U.S.C. section 2254 (the “Federal Habeas”). Respondent now moves to dismiss on grounds that

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Petitioner failed to file the Federal Habeas within the AEDPA’s one-year time limit.

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III.

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DISCUSSION
AEDPA imposes a one-year statute of limitations on habeas petitions filed by state

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prisoners. 28 U.S.C. § 2244(d)(1). Petitions filed by prisoners challenging non-capital state

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convictions or sentences must be filed within one year of the latest of:

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United States District Court
Northern District of California

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(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). In general, the one-year period runs from the first trigger, or “the
date on which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Time during which a properly
filed application for state post-conviction or other collateral review is pending is excluded from
the one-year time limit. 28 U.S.C. § 2244(d)(2).
Here, the limitations period started running on October 2, 2010, i.e., the date on which
Petitioner’s sentence became final. See 28 U.S.C. § 2244(d)(1)(A); Cal. R. Ct. 8.308(a). Thus,
Petitioner had one year from the time the limitations period started running – or until October 2,
2011 – to file a federal habeas petition under AEDPA. However, the Federal Habeas was not filed
until May 12, 2015, almost four years after the AEDPA limitations period had expired. The
Federal Habeas is thus untimely unless Petitioner can show he is entitled to relief from AEDPA’s
one-year statute of limitations based on either (i) delayed commencement under Section
2244(d)(1)(C), or (ii) equitable tolling under Section 2244(d)(2). The Court addresses these two
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bases for relief raised by Petitioner in turn.

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A.

Delayed Commencement of the Limitations Period

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A petitioner may attempt to justify the untimely filing of his habeas petition by

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demonstrating his eligibility for delayed commencement of the limitations period under

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subheadings (B), (C) or (D) of Section 2244(d)(1). Here, Petitioner claims that the one-year

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limitations period should run not from October 2, 2010, but from “the date on which the

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constitutional right asserted was initially recognized by the Supreme Court,” i.e. that he is entitled

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to a delayed commencement of the limitations period under Section 2244(d)(1)(C). Specifically,

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Petitioner asserts that a right newly recognized by the Supreme Court of the United States in

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United States District Court
Northern District of California

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Peugh v. United States, 133 S.Ct. 2072 (2013), is retroactively applicable to him.3
To be entitled to delayed commencement under Section 2244(d)(1)(C), Petitioner must

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assert a constitutional right that is (1) newly recognized by the Supreme Court, and (2) made

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retroactive to cases on collateral review. With respect to the first requirement, to determine

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whether Peugh confers a newly recognized constitutional right, the Court must first place Peugh in

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the context of jurisprudence relevant to Petitioner’s claim. Petitioner’s Federal Habeas alleges that

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the “actions by the legislature to try and extend the statute of limitations of time barred claims as

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inferred and as applied by Penal Code Sec. 801.1 [to his case] violates the Ex Post Facto Clause.”

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(Pet. at 12:7-10) (italics supplied.) According to Petitioner, legislation extending the applicable

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statute of limitations from three years to ten years was enacted after the limitations period on the

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earliest of his crimes had run. Thus, the Court must first ascertain the place of Peugh in the

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Supreme Court’s jurisprudence on ex post facto laws and statutes of limitations.

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Petitioner also suggests that the timing and substance of the holding in People v.
Simmons, 210 Cal.App.4th 778 (2012) bears on this question. However, as a state court case,
Simmons is immaterial to delayed commencement under Section 2244(d)(1)(C). The statutory
language of Section 2244(d)(1)(C) specifies that “the Supreme Court” must recognize the right
asserted by the habeas petitioner. See Dodd v. United States, 545 U.S. 353, 357-60 (2005) (“What
Congress has said . . . is clear: An applicant has one year from the date on which the right he
asserts was initially recognized by this Court”) (emphasis supplied). Given that the United States
Supreme Court did not decide Simmons, and therefore could not have conferred a new right
thereby, Simmons is unavailing under Section 2244(d)(1)(C).

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The federal Constitution prohibits the federal government and the States from enacting ex

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post facto laws – laws that have certain unjust retroactive effects. U.S. Const., Art. I, § 9, cl. 3

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(federal government); Art. I, § 10, cl. 1 (states). Collectively, these clauses are referred to as the

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“Ex Post Facto Clause.” See, e.g., Stogner v. California, 539 U.S. 607, 611 (2003) (discussing the

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history of “the Ex Post Facto Clause”). The Ex Post Facto Clause prohibits the government from

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passing any law that (1) makes an act done before the passing of the law, which was innocent

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when done, criminal; (2) aggravates a crime or makes it greater than it was when it was

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committed;4 (3) changes the punishment and inflicts a greater punishment for the crime than the

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punishment authorized by law when the crime was committed; or (4) alters the legal rules of
evidence and requires less or different testimony to convict the defendant than was required at the

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United States District Court
Northern District of California

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time the crime was committed. Id. at 611-12 (citing Calder v. Bull, 3 U.S 386, 389 (1798));

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Carmell v. Texas, 529 U.S. 513, 522 (2000).

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The Ex Post Facto Clause applies to criminal statutes of limitations. Stogner, 539 U.S. at

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610 (holding that a California law extending the statute of limitations for sex-related child abuse

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where the prior limitations period had expired was unconstitutionally ex post facto). In some

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circumstances, legislation that extends limitations periods for prosecutions of crimes may violate

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the second category of laws prohibited by the Ex Post Facto Clause. Id. This second category

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includes any law that “‘inflict[s] punishments, where the party was not, by law, liable to any

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punishment.’” Id. at 611-12 (quoting Calder, 3 U.S. at 389). Stogner is the seminal Supreme

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Court case on this second category as it relates to the revival of expired statutes of limitations.

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Stogner, 539 U.S. at 608 (“This Court has not previously spoken decisively on this matter.”).

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In Stogner, the Supreme Court addressed the second category of ex post facto laws and

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held that “a law enacted after expiration of a previously applicable limitations period violates the

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Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.” Id. at

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632-33. Stogner confines its ruling to extensions of expired statutes of limitations. Id. at 618

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An alternative description of this category is any law that “inflict[s] punishments, where
the party was not, by law, liable to any punishment.” Stogner, 539 U.S. at 611-12 (2003) (quoting
Calder v. Bull, 3 Dall. 386, 389 (1798)).
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(“Even where courts have upheld extensions of unexpired statutes of limitations (extensions our

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holding today does not affect), they have consistently distinguished situations where limitations

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periods have expired.”) (emphasis in original) (internal citation omitted); see Renderos v. Ryan,

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469 F.3d 788, 795 (9th Cir. 2006) (a statute “enacted while the limitations periods were still

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running” is “precisely the type of statute that Stogner expressly stated it was not striking down”)

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(emphasis in original).5 Here, Petitioner’s Federal Habeas claims he was charged with a crime

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that had an otherwise expired statute of limitations, which Stogner explicitly addressed in 2003.

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The Court now turns to Petitioner’s proffered case. In Peugh, the Supreme Court
addressed the third category of ex post facto prohibitions, or any law that “changes the

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punishment, and inflicts a greater punishment, than the law annexed to the crime, when

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United States District Court
Northern District of California

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committed.” Peugh, 133 S.Ct. at 2081. Peugh found there is an ex post facto violation when a

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“defendant is sentenced under Guidelines promulgated after he committed his criminal acts and

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the new version provides a higher applicable Guidelines sentencing range than the version in place

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at the time of the offense.” 133 S.Ct. at 2078. A central issue in Peugh was whether the Federal

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Sentencing Guidelines, which are advisory and non-binding, qualify as “laws” subject to the Ex

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Post Facto Clause. Id. at 2081, 2085. That is, do these discretionary guideposts “create[] a

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sufficient risk of a higher sentence to constitute an ex post facto violation.” Id. at 2084. The

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Supreme Court in Peugh ruled that because such a change in the Sentencing Guidelines “presents

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a sufficient risk of increasing the measure of punishment attached to the covered crimes,” this, too,

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is encompassed by the constitutional prohibition against ex post facto laws. Id. at 2082 (internal

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quotations omitted).

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Petitioner has not explained how Peugh, a case addressing Sentencing Guidelines, confers

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Thus, extensions of unexpired statutes of limitations remain constitutionally permissible
under Stogner and its progeny in the Ninth Circuit. Id.; Renderos, 469 F.3d at 795 (“There is no
manifest injustice here because there was no ‘retroactive effect,’ as the original limitations period
had not yet expired.”); see also United States v. Bischel, 61 F.3d 1429, 1435-36 (9th Cir. 1995)
(holding that a statute may apply to offenses committed prior to the statute’s enactment where the
conduct was already criminal without violating the Ex Post Facto clause). The Superior Court
Order found that Petitioner’s State Habeas IAC claim failed because the ex post facto law
extending the statute of limitations on the crimes for which he was charged fell under this
constitutionally permissible category. (See Superior Court Order at 2.)
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a new right in the context of his own case, which concerns statutes of limitations. See Saif’ullah v.

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Chappell, 2014 WL 5514141, at *5 (N.D.Cal. Oct. 31, 2014) (“Peugh does not apply to the

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present case because it is a sentencing case rather than a parole case.”). The requisite analysis and

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body of case law differ between the categories of ex post facto violations. Whereas Peugh

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addresses the third category of Ex Post Facto Clause prohibitions, which relate to length of

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punishment, Petitioner’s claim concerns the second category, or whether he could be convicted in

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the first place. Peugh is simply inapposite.

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Moreover, the right that Petitioner seeks to enforce is not “newly recognized,” as Section
2244(d)(1)(C) requires. Rather, it was announced by the Supreme Court in 2003 in Stogner. 539

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U.S. at 632-33. Stogner prohibits the revival of prosecutions that were already time-barred, which

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United States District Court
Northern District of California

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is the issue at the heart of Petitioner’s Federal Habeas claim. Id. The Court notes that Stogner

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pre-dates not only Petitioner’s AEDPA expiration date, but also his conviction. As discussed

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above, Peugh does not abrogate this holding, nor does it add to it to include unexpired statutes of

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limitations, if Petitioner were to so argue. Especially in light of Stogner, the right announced in

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Peugh cannot serve as a salve for Petitioner’s untimely filing.

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The Court therefore finds that Petitioner fails to satisfy the first predicate of a

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2244(d)(1)(C) claim. Having found that Petitioner fails on the first predicate, it need not continue

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further in the analysis. Accordingly, the Court rejects Petitioner’s argument for delayed

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commencement under 28 U.S.C. section 2244(d)(1)(C).

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B.

Equitable Tolling

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AEDPA’s statute of limitations, 28 U.S.C. section 2244(d), is subject to equitable tolling in

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appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] petitioner is entitled to

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equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that

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some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649

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(internal quotations omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); accord

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Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006); Miles v. Prunty, 187 F.3d 1104, 1107

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(9th Cir. 1999) (“When external forces, rather than a petitioner’s lack of diligence, account for the

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failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate.”).
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A federal habeas petitioner “bears the burden of showing that this extraordinary exclusion
should apply to him.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v.

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Castro, 292 F.3d 1063, 1065 (9th Cir. 2002)). “Indeed, the threshold necessary to trigger

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equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.’” Miranda,

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292 F.3d at 1066 (alteration in original) (internal quotation omitted) (quoting United States v.

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Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)); accord Yeh v. Martel, 751 F.3d 1075, 1077 (9th

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Cir. 2014) (“This is a very high bar, and is reserved for rare cases.”). Where a prisoner fails to

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show “any causal connection” between the grounds upon which he asserts a right to equitable

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tolling and his inability to file a timely federal habeas petition, the equitable tolling claim will be

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denied. Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), amended, 447 F.3d 1165 (9th

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United States District Court
Northern District of California

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Cir. 2006). However, “[r]ather than let procedural uncertainties unreasonably snuff out a

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constitutional claim, the issue of when grave difficulty merges literally into ‘impossibility’ should

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be resolved in [a petitioner’s] favor.” Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002).

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A federal habeas petitioner does not carry a burden of persuasion at the motion to dismiss

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stage to warrant additional investigation into his equitable tolling claim. Rather, further factual

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development on the merits of the equitable tolling claim may be required. Laws v. Lamarque, 351

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F.3d 919, 924 (9th Cir. 2003) (reversing grant of motion to dismiss because district court failed to

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“develop the record” in response to petitioner’s claim of mental incompetency); Whalem/Hunt v.

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Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (remanding with instructions for district

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court to develop facts concerning whether AEDPA materials were unavailable in the prison law

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library and determine the legal significance of such a finding). Ninth Circuit precedent requires

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only that there be “circumstances consistent with petitioner’s petition . . . under which he would be

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entitled to . . . equitable tolling” to trigger further factual development. Lamarque, 351 F.3d at

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924 (citing Whalem/Hunt, 233 F.3d at 1148). A district court errs when it grants judgment against

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a habeas petitioner in advance of developing a full record. Id.

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Here, Petitioner vaguely asserts that prison conditions, such as limited access to the law

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library and lockdowns, impacted his ability to file timely and entitle him to equitable tolling.

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Respondent contends that Petitioner’s claim is unavailing because it lacks any specific allegations
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with respect to prison conditions. Moreover, even if Petitioner did make specific allegations,

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Respondent believes the fact that Petitioner was represented by counsel during the State Habeas

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and Federal Habeas precludes equitable tolling premised on prison conditions.

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Prison conditions, limited access to law libraries, and lockdowns may, in certain

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circumstances, justify untimely filing. See, e.g., Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir.

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2013) (holding that petitioner “sufficiently alleged that he was precluded from filing his habeas

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petition” because of lockdowns and inability to use prison law library, and remanding for further

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development of the record). The inquiry is highly fact-specific. Frye v. Hickman, 273 F.3d 1144,

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1146 (9th Cir. 2001) (lack of access to library materials does not automatically qualify as grounds
for equitable tolling and inquiry must be “fact-specific”); Whalem/Hunt, 233 F.3d at 1148

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United States District Court
Northern District of California

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(grounds for equitable tolling are “highly fact-dependent”). Typically, “the best course” is for the

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district court to develop the record before ruling. Whalem/Hunt, 233 F.3d at 1148l; Lamarque,

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351 F.3d at 924.

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Respondent correctly notes that the record is plainly inadequate in its current state.

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However, Petitioner need not provide a full record the first time he asserts equitable tolling in

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opposition to a motion to dismiss. Id. Thus, while Petitioner ultimately bears the burden of

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demonstrating that he pursued his rights diligently and extraordinary circumstances barred him

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from timely filing, it would be premature for the Court to grant the motion to dismiss prior to the

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development of a factual record. See Holland, 560 U.S. at 649; Lamarque, 351 F.3d at 924.

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Furthermore, that Petitioner benefits from the assistance of counsel today does not

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necessarily preclude his claim of equitable tolling. Respondent’s reliance on dicta in Waldrip v.

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Hall is unavailing. 548 F.3d 729 (9th Cir. 2008). In Waldrip, the Ninth Circuit remarked that

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because the petitioner was represented by counsel, “it is not clear that [his] personal access to a

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law library should be significant.” However, the Ninth Circuit ultimately decided the matter on

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other grounds, namely that petitioner had access to the library by the time the Superior Court had

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ruled on his pro se petition. Id. at 737. That petitioner’s representation by counsel did not bear on

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the need to develop a factual record with respect to the impact of prison conditions on timely

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filing. Waldrip is thus not conclusive on this question.
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Respondent’s second proffer, the non-binding Fifth Circuit opinion in Cousin v. Lensing,

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similarly fails to persuade. 310 F.3d 843 (5th Cir. 2002). There, the Fifth Circuit declined to

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extend the leniency it provides pro se habeas petitioners to those represented by counsel with

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respect to the “mailbox rule,” which deems a pro se petition “filed” when handed to prison

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authorities, rather than upon payment of the filing fee. Id. at 847. Respondent again overstates a

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narrow holding. Cousin neither announces a broad rule that petitioners with counsel are not

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entitled to equitable tolling, nor does it suggest the Court should not develop a factual record

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before granting judgment.
The Court recognizes that petitioners represented by counsel enjoy advantages that pro se

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inmates do not. Those with outside counsel tend to face fewer prison-related obstacles to filing

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United States District Court
Northern District of California

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timely, which may weaken an equitable tolling claim on those grounds. However, Respondent

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proffers no case law indicating that the mere fact of assistance of counsel, without more, precludes

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a habeas petitioner’s prison conditions based equitable tolling claim prior to the development of a

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factual record. Indeed, the authoritative case law on equitable tolling affords relief to petitioners

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who retained deficient counsel at various points in their habeas process. See, e.g., Holland, 560

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U.S. at 634-35 (petitioner’s attorney’s unprofessional conduct justified equitable tolling); Spitsyn,

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345 F.3d at 801 (“The fact that the attorney retained by petitioner may have been responsible for

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the failure to file on a timely basis does not mean that petitioner can never justify relief by

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equitable tolling.”) Furthermore, there is no evidence that Petitioner has always had counsel.

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Hence, the Court needs a more complete record prior to judgment on the motion to dismiss.
Given the lack of a record, and the fact that the arguments both for and against equitable

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tolling are too bare-boned to persuade at this juncture, the Court affords the parties an opportunity

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for additional briefing on this issue.

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IV.

CONCLUSION

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For the foregoing reasons, the Court ORDERS Petitioner to file a supplemental opposition

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to Respondent’s motion to dismiss containing evidence and facts germane to his equitable tolling

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claim. The Court notes that any affidavit(s) or declaration(s) from Petitioner regarding these facts

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must be filed under penalty of perjury. Petitioner shall file, and serve a copy on Respondent, a
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supplemental opposition and any supporting documentation within thirty (30) days from the date

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of this order. The Court further ORDERS Respondent to file a reply brief including any supporting

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evidence within thirty (30) days of the date of filing of Petitioner’s supplemental opposition.

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IT IS SO ORDERED.
Dated: May 11, 2016
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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