Whigham v. Hatton

Filing 13

ORDER by Judge Yvonne Gonzalez Rogers granting 8 Respondent's Motion to Dismiss Petition as Untimely; and Denying Certificate of Appealability. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/7/2017)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 MACK WHIGHAM, Petitioner, 5 v. 6 7 S. HATTON, Acting Warden, I. 10 United States District Court Northern District of California 11 12 13 14 15 18 Facility, filed a pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent’s motion to dismiss the instant petition as untimely under 28 U.S.C. § 2244(d)—the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Dkt. 8. Petitioner filed an opposition, and Respondent filed a reply. Dkts. 11, 12. Having considered all of the papers filed by the parties, the Court GRANTS Respondent’s motion to dismiss the petition as untimely. II. 19 20 21 one prior serious felony conviction in the Contra Costa County Superior Court. Resp’t Ex. A at 009-010, 018-022; see Cal. Penal Code §§ 187, 189, 667(a). On October 2, 1998, the trial court sentenced Petitioner to twenty years to life in prison. Resp’t Ex. A at 023-024; see Cal. Penal Code §§ 190(a), 667(a)(1). 24 25 26 27 28 BACKGROUND On August 20, 1998, Petitioner pleaded no contest to second degree murder and admitted 22 23 INTRODUCTION Petitioner Mack Whigham, an inmate currently incarcerated at the California Training 16 17 ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY Respondent. 8 9 Case No. 16-cv-06303-YGR (PR) Petitioner did not appeal his conviction, but he sought collateral review, as explained below. On June 26, 2015, the United State Supreme Court issued its decision in Johnson v. United States,––– U.S. –––, 135 S. Ct. 2551 (2015), which held that the “residual clause” of the federal 1 Armed Career Criminal Act’s (“ACCA’s”) definition of “violent felony” violated the Due Process 2 Clause, because it was unconstitutionally vague. See id. at 2555-56. 3 At some point after June 26, 2015,1 Petitioner filed a petition for writ of habeas corpus in 4 the Contra Costa County Superior Court, contending that pursuant to Johnson, his conviction for 5 second degree murder was void for vagueness. See Resp’t Ex. A at 054. On February 26, 2016, 6 the state superior court denied the petition, stating as follows: 7 The court has carefully read and considered petitioner’s claim and now denies same for the following reasons: Johnson was concerned with an increased sentence under the federal Armed Career Criminal Act’s residual clause, 18 U.S.C. section 924(e)(2)(B), where the wide-ranging inquiry required by the residual clause denied defendant of fair notice and invited arbitrary enforcement. Petitioner’s conviction, on the other hand, arose on the basis of California Penal Code sections 187-189, which defines first and second degree murder and express and implied malice. In a word, the Johnson case has no application to petitioner’s case and his conviction of second degree murder. 8 9 10 United States District Court Northern District of California 11 12 13 Id. at 054-055. On June 20, 2016, Petitioner filed a state habeas petition in the California Court of Appeal. 14 15 Resp’t Ex. B. On June 23, 2016, that state appellate court denied the petition. Id. On July 13, 2016, Petitioner filed a state habeas petition in the California Supreme Court. 16 17 Resp’t Ex. C. On August 31, 2016, that state supreme court denied the petition. Id. On October 23, 2016,2 Petitioner filed the instant petition, in which he raises the same 18 19 claim he raised in his state habeas petitions. Dkt. 1. at 11-17. 20 III. 21 DISCUSSION The AEDPA, which became law on April 24, 1996, imposes a statute of limitations on 22 23 24 1 The Court is unable to determine the exact date Petitioner filed his state superior court petition because the record does not contain a copy of this filing. See Resp’t Ex. A. 2 25 26 27 28 According to the mailbox rule, a pro se federal habeas petition is deemed filed on the date it is delivered to prison authorities for mailing. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002) (holding that a federal or state habeas petition is deemed filed on the date the prisoner submits it to prison authorities for filing, rather than on the date it is received by the court). The Court assumes that Petitioner delivered his federal petition to prison officials on the same date that petition was signed. See Koch v. Ricketts, 68 F.3d 1191, 1193 (9th Cir. 1995) (petitioner assumes risk of proving date of mailing). 2 1 petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners 2 challenging non-capital state convictions or sentences must be filed within one year of the latest of 3 the date on which: (A) the judgment became final after the conclusion of direct review or the time 4 passed for seeking direct review; (B) an impediment to filing an application created by 5 unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the 6 constitutional right asserted was recognized by the Supreme Court, if the right was newly 7 recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the 8 factual predicate of the claim could have been discovered through the exercise of due diligence. 9 See 28 U.S.C. § 2244(d)(1)(A)-(D). 10 A state prisoner with a conviction finalized after April 24, 1996, such as Petitioner, United States District Court Northern District of California 11 ordinarily must file his federal habeas petition within one year of the date his process of direct 12 review came to an end. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 13 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District 14 Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). 15 The one-year period may start running from “the expiration of the time for seeking [direct] 16 review.” 28 U.S.C. § 2244(d)(1)(A). If a petitioner could have sought review by the state court of 17 appeals or the state supreme court, but did not, the limitation period will begin running against 18 him the day after the date on which the time to seek such review expired. See Smith v. Duncan, 19 297 F.3d 809, 812-13 (9th Cir. 2002); see also Cal. Rule of Court 8.308(a) (providing that appeal 20 from criminal judgment must be filed within sixty days after rendition of judgment or making of 21 order being appealed) (formerly Cal. Rule of Court 31). 22 In the present case, the statute of limitations started running on December 1, 1998, when 23 Petitioner’s sentence became final sixty days after October 2, 1998, the date of sentencing. See 24 § 2244(d)(1)(A); Cal. R. Ct. 8.308(a). Thus, Petitioner had until December 1, 1999 (one year 25 later) to file his federal habeas petition. Because Petitioner did not file the present petition until 26 October 23, 2016—almost seventeen years after the limitations period expired—the petition is 27 untimely unless he can show that he is entitled to tolling or a delayed commencement of the 28 limitations period. 3 1 A. Statutory tolling The one-year statute of limitations is tolled under section 2244(d)(2) for the “time during 2 which a properly filed application for State post-conviction or other collateral review with respect 3 to the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2). Tolling applies to 4 one full round of collateral review. Carey v. Saffold, 536 U.S. 214, 223 (2002). 5 Here, the record shows that Petitioner sought collateral review in state courts in 2015 and 6 2016. However, as mentioned above, the one-year limitations period expired on December 1, 7 1999. A state habeas petition filed after the AEDPA’s statute of limitations ended cannot toll the 8 limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 9 2244(d) does not permit the reinitiation of the limitations period that has ended before the state 10 petition was filed,” even if the state petition was timely filed). Section 2244(d)(2) cannot “revive” 11 United States District Court Northern District of California the limitations period once it has run (i.e., restart the clock to zero); it can serve only to pause a 12 clock that has not yet fully run. Once the limitations period expires, “collateral petitions can no 13 longer serve to avoid a statute of limitations.” Rashid v. Kuhlmann, 991 F. Supp. 254, 259 14 (S.D.N.Y. 1998). 15 Accordingly, Petitioner’s state habeas petitions filed in 2015 and 2016 do not revive the 16 limitations period that already has run. Because Petitioner did not meet the one-year requirement 17 for filing the instant federal habeas petition and he is not entitled to statutory tolling, his petition is 18 barred as untimely under 28 U.S.C. § 2244(d)(1) unless he can show that he is entitled to a 19 delayed commencement of the limitations period. 20 21 B. Delayed Commencement of the Limitations Period As mentioned above, a petitioner may attempt to justify the late filing of his habeas 22 petition by demonstrating his eligibility for a delayed commencement of the limitations period 23 under either subheadings (B), (C), or (D) of section 2244(d)(1). Here, Petitioner does not present 24 any evidence or argument suggesting there existed unconstitutional state action that created an 25 impediment to his filing the petition. See 28 U.S.C. § 2244(d)(1)(B). Moreover, he does not 26 argue that he could not have discovered the factual basis for his claims despite due diligence. See 27 28 U.S.C. § 2244(d)(1)(D). However, Petitioner alleges that he is entitled to a delayed 28 4 1 commencement of the limitations period under subheading (C), “the constitutional right asserted 2 was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court 3 and made retroactive to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). In interpreting 28 4 U.S.C. § 2255(f)(3), an analogous provision for federal prisoners seeking to file under 28 U.S.C. 5 § 2255, the Supreme Court has held that the one-year limitation period begins to run on the date 6 on which the Supreme Court recognized the new right being asserted, not the date on which that 7 right was made retroactive. See Dodd v. United States, 545 U.S. 353, 357 (2005). 8 9 Here, Petitioner cites to Johnson v. United States, as a case where the Supreme Court recognized a new rule that triggers a delayed commencement of the limitations period. Dkt. 1 at 5-6. Thus, Petitioner argues that his petition is not time-barred because the limitations period 11 United States District Court Northern District of California 10 would have commenced on the date Johnson was issued, June 26, 2015. 12 Although the Supreme Court has made the rule in Johnson retroactive to cases on 13 collateral review, Welch v. United States, 136 S. Ct. 1257, 1265 (2016), it does not apply to this 14 case. As explained above, in Johnson, the Supreme Court held unconstitutionally vague the 15 “residual clause” of the ACCA, 18 U.S.C. § 924(e)(2)(B), a federal criminal statute. See 135 S. 16 Ct. at 2555-56. Specifically, the Supreme Court explained that “the indeterminacy of the wide- 17 ranging inquiry required by the residual clause both denies fair notice to defendants and invites 18 arbitrary enforcement by judges.” Id. at 2557. 19 However, the Johnson decision is irrelevant here, because Petitioner’s state prison sentence 20 was neither enhanced under ACCA’s “residual clause” nor was his conviction based on any state 21 analogue of that federal criminal statute. Rather, Petitioner was convicted of second degree 22 murder. See Resp’t Ex. A at 009-010, 018-022. Therefore, just as the state superior court 23 previously found in denying Petitioner’s state habeas petition, see id. at 054, this Court also finds 24 that Johnson has no application to his case and his conviction of second degree murder. Said 25 differently, Johnson created no new due process right applicable to Petitioner. 26 In sum, Petitioner is not entitled to a delayed commencement of the limitations period 27 under section 2244(d)(1)(C), and the limitations period did not begin to run when the Supreme 28 Court issued Johnson in 2015, but rather on the date when the judgment of conviction became 5 1 final on December 1, 1998. Therefore, because Petitioner did not file the present petition until 2 October 23, 2016—almost seventeen years after the limitations period expired on December 1, 3 1999—the petition is untimely unless he can show he is entitled to equitable tolling. 4 C. 5 The Supreme Court has determined that AEDPA’s statute of limitations is subject to Equitable Tolling 6 equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). “When 7 external forces, rather than a petitioner’s lack of diligence, account for the failure to file a timely 8 claim, equitable tolling of the statute of limitations may be appropriate.” Miles v. Prunty, 187 9 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling, however, is unavailable in most cases, because extensions of time should be granted only if “extraordinary circumstances beyond a prisoner’s 11 United States District Court Northern District of California 10 control make it impossible to file a petition on time.” Beeler, 128 F.3d at 1288 (citation and 12 internal quotation marks omitted). The prisoner must show that “the ‘extraordinary 13 circumstances’ were the cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 14 2003) (citations omitted). The petitioner bears the burden of showing he is entitled to equitable 15 tolling, and the determination of whether such tolling applies is a fact-specific inquiry. Id. Thus, 16 petitioner bears the burden of showing that this “extraordinary exclusion” should apply to him, 17 Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002), and that “the extraordinary 18 circumstances were the cause of his untimeliness . . . and that the extraordinary circumstances 19 made it impossible to file a petition on time,” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) 20 (internal quotation marks, brackets, and citations omitted). Here, Petitioner has not alleged that he is entitled to equitable tolling. Thus, nothing 21 22 currently in the record suggests the possibility of equitable tolling. Even in his petition, Petitioner 23 alleges no facts from which the Court could infer that his failure to raise his claims prior to the 24 expiration of the limitations period was because of circumstances that were beyond his control and 25 that made it impossible to file a timely federal petition. It was Petitioner’s delay in pursuing his 26 state court remedies, rather than extraordinary circumstances, that led him to exceed the 27 limitations period. See Miranda, 292 F.3d at 1065. The limitations period will not be equitably 28 tolled. 6 Accordingly, Respondent’s motion to dismiss is GRANTED, and the petition is 1 2 DISMISSED because it was not timely filed under 28 U.S.C. § 2244(d)(1). 3 IV. CERTIFICATE OF APPEALABILITY The federal rules governing habeas cases brought by state prisoners have been amended to 4 5 require a district court that dismisses or denies a habeas petition to grant or deny a certificate of 6 appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. 7 foll. § 2254 (effective December 1, 2009). 8 For the reasons stated above, Petitioner has not shown “that jurists of reason would find it 9 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. 11 United States District Court Northern District of California 10 V. CONCLUSION 12 For the reasons outlined above, the Court orders as follows: 13 1. 14 15 16 Respondent’s motion to dismiss the petition as untimely (dkt. 8) is GRANTED, and this action is DISMISSED with prejudice. 2. A certificate of appealability is DENIED. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals. 17 3. The Clerk of the Court shall terminate all pending motions and close the file. 18 4. This Order terminates Docket No. 8. 19 IT IS SO ORDERED. 20 Dated: August 7, 2017 21 22 YVONNE GONZALEZ ROGERS United States District Judge 23 24 25 26 27 28 7

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