Womack v. Virga

Filing 13

ORDER by Judge Lucy H. Koh granting 9 Motion to Dismiss; Denying Certificate of Appealability (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 7/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,
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Petitioner,
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v.
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WARDEN TIME V. VIRGA,
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Respondent.
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No. C 11-1095 LHK (PR)
ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS; DENYING CERTIFICATE
OF APPEALABILITY
(Docket No. 9)

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Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Respondent has filed a motion to dismiss. Petitioner has filed an opposition, and

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Respondent has filed a reply. Although not authorized to do so, Petitioner has filed an

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“opposition” to Respondent’s reply. After careful consideration of all relevant papers, and for

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the reasons stated below, the Court GRANTS Respondent’s motion to dismiss, and DISMISSES

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the petition.

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BACKGROUND
On May 22, 2002, Petitioner pleaded no contest to the charge of failing to register as a

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sex offender. As part of the plea agreement, Petitioner agreed to waive his right to appeal. After

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his conviction, the court sentenced Petitioner to a term of three years of probation. Petitioner did

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not appeal the judgment.

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On February 17, 2004, counsel for Petitioner filed a state habeas petition in Superior
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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Court. In that petition, Petitioner stated that, in 1995, he was convicted of, inter alia, four sexual

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offenses with a person under 16 years of age, arising out of one incident with one victim, in

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violation of California Penal Code § 288a(b)(2). (MTD, Ex. 1.) Petitioner argued that a

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conviction under § 288a(b)(2) should not also include imposition of a lifetime registration

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requirement as a sex offender. On April 28, 2004, the Superior Court denied the petition.

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On January 29, 2010, Petitioner, proceeding pro se, filed another state habeas petition in

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Superior Court. He also filed state habeas petitions in the California Court of Appeal and

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California Supreme Court. He was unsuccessful at all three levels. Thereafter, Petitioner filed

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the underlying petition on March 3, 2011.

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DISCUSSION

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In Petitioner’s federal petition he claims that appellate counsel rendered ineffective

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assistance because appellate counsel failed to raise numerous issues that he had promised to raise

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on appeal. As a result, Petitioner argues, the plea agreement was breached. All the issues

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Petitioner wished to raise on appeal from this 2002 judgment concerned Plaintiff’s challenges to

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the 1995 sex offense.

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The federal writ of habeas corpus is only available to persons “in custody” at the time the

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petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238

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(1968). This requirement is jurisdictional. See id. A habeas petitioner must be in custody for

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the conviction or sentence under attack at the time the petition is filed. See Maleng v. Cook, 490

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U.S. 488, 490-91 (1989). A petitioner who files a habeas petition after he has fully served his

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sentence, and who is not subject to Court supervision is not “in custody” for the purposes of this

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Court’s subject matter jurisdiction, and his petition is thus properly denied. See De Long v.

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Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990).

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To the extent Petitioner is attempting to attack his 1995 state court judgment and
lifetime registration requirement, Petitioner was not in custody pursuant to that judgment at the

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Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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time he filed this federal habeas petition,1 and therefore, he may not attack the 1995 judgment in

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this federal habeas proceeding. See Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001)

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(recognizing that merely being subject to a sex offender registry requirement does not satisfy the

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“in custody” requirement after the original sexual offense conviction has expired). Because

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Petitioner is also not in custody for his 2002 conviction for the failure to register as a sex

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offender, the 2002 conviction cannot give this Court jurisdiction. Cf. id. at 1020 (noting that

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because the petitioner’s current conviction for the failure to register was the product of an

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unconstitutional prior conviction, the district court had jurisdiction over the federal habeas

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claim). Thus, Petitioner’s petition is dismissed for lack of jurisdiction.2

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Alternatively, Respondent moves to dismiss the petition as untimely. The Antiterrorism

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and Effective Death Penalty Act of 1996 (“AEDPA”) became law on April 24, 1996, and

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imposed for the first time a one-year statute of limitations on petitions for a writ of habeas

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corpus filed by state prisoners. The one-year period generally will run from “the date on which

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the judgment became final by conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Here, that date was 60 days after the

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judgment of conviction. See Cal. Rules of Court, Rule 8.308(a). Thus, Petitioner’s conviction

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became final on July 21, 2002, and he had until July 21, 2003, to file his federal habeas petition.

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See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner’s federal petition,

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therefore, is untimely unless Petitioner can demonstrate that he is entitled to statutory or

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equitable tolling.

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Although the one-year statute of limitations is tolled under § 2244(d)(2) for the “time

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during which a properly filed application for State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending,” 28 U.S.C. § 2244(d)(2), Petitioner did not

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file any state habeas petition until February 17, 2004. Because his state habeas petition was filed

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Petitioner was sentenced to a total of 4 years for his 1995 convictions. (MTD, Ex. 1,
Ex. A at 8-9.)
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The Court notes that Petitioner appears to be in custody on a wholly unrelated bank
robbery charge, for which he has been imprisoned since 2004. (Dkt. No. 12 at 2.)
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after the expiration of the AEDPA’s statute of limitations, the state petition did not statutorily

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toll the limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Thus,

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Petitioner is not entitled to statutory tolling.

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

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

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‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his

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rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented

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timely filing.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The

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diligence required to establish entitlement to equitable tolling is “reasonable diligence.”

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Holland, 130 S. Ct. at 2565 (finding district court’s finding of lack of diligence incorrect and

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remanding for detailed examination of facts to “determine whether they indeed constitute

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extraordinary circumstances sufficient to warrant equitable relief”).

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The Ninth Circuit has held 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 (9th

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Cir. 2002). Where a prisoner fails to show “any causal connection” between the grounds upon

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which he asserts a right to equitable tolling and his inability to timely file a federal habeas

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application, the equitable tolling claim will be denied. Gaston v. Palmer, 417 F.3d 1030, 1034-

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35 (9th Cir. 2005) (holding that where prisoner fails to show causal connection between

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self-representation on direct appeal or physical and mental disabilities and inability to timely file

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petition, district court’s finding that he was not entitled to equitable tolling where he had earlier

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filed a state habeas petition was not clear error). He must, furthermore, show that his

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untimeliness was caused by an external impediment and not by his own lack of diligence.

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Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (no equitable tolling

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where petitioner was not diligent in that he failed to seek any state court relief for six years, or to

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take advantage of available paralegal assistance).

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Petitioner argues that he is entitled to equitable tolling because he was under the

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impression that the public defenders’ office would handle his appeal, and keep him updated on

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its status. (Dkt. No. 12 at 2-3.) Petitioner also states that he and his mother had contacted the
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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public defenders’ office “numerous times,” but their messages were never returned. (Id. at 3.)

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A prisoner’s lack of knowledge that the state courts have reached a final resolution of

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his case can be grounds for equitable tolling if the prisoner acted diligently to obtain notice.

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Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). More importantly, the Ninth Circuit has

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previously held that the alleged negligence of counsel in failing to perfect an appeal has “little to

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no bearing on [a petitioner’s] ability to file a timely federal habeas petition.” Randle v.

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Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010). “Counsel’s failure to perfect an appeal simply

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meant that [Petitioner] had one year from the expiration of his time to file a notice of appeal in

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which to initiate a federal habeas action – it did not prevent him from filing the petition.” Id.; cf.

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Doe v. Busby, 661 F.3d 1011, 1013-1015 (9th Cir. 2011) (finding extraordinary circumstances

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where attorney failed to file a timely petition despite numerous promises to the contrary;

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petitioner’s three-and-a-half year delay in eventually filing a pro se petition was attributable to

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having been deceived, bullied and lulled by apparently inept and unethical lawyer who gave

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assurances that the petition was forthcoming); Spitsyn v. Moore, 345 F.3d 796, 800-01 (9th Cir.

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2003) (equitable tolling appropriate where attorney was retained to file and prepare petition,

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failed to do so, and disregarded requests to return files pertaining to petitioner’s case until well

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after the date the petition was due; remanding on issue of whether petitioner exercised

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reasonable diligence).

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Aside from Petitioner’s vague assertions that he and his mother attempted to contact the

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public defenders’ office “numerous times,” on unspecified dates, Petitioner has not provided any

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evidence to demonstrate that he exercised reasonable diligence in pursuing his rights. Indeed,

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Petitioner stated that at some unknown time, he eventually came to the conclusion – with no

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encouragement from the public defenders’ office – that the public defenders’ office was handling

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his appeal and that Petitioner should let them do their job. (Dkt. No. 12.) Petitioner’s belief that

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the public defenders’ office would “handle” his appeal is belied by the fact that Petitioner

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waived his right to appeal, pursuant to the 2002 plea agreement. Petitioner has also failed to

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demonstrate that some extraordinary circumstance stood in his way that prevented him from

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timely filing a federal petition. Thus, Petitioner is not entitled to equitable tolling.
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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Accordingly, Petitioner’s federal habeas petition is untimely.

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CONCLUSION
Accordingly, Respondent’s motion to dismiss is GRANTED. The Clerk shall close the
file and enter judgment in this matter.
A certificate of appealability will not issue. Reasonable jurists would not “find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

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529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of

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Appeal.

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IT IS SO ORDERED.
7/31/12
DATED: _______________
LUCY H. KOH
United States District Judge

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Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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