Dorsey v. Miller et al

Filing 18

ORDER by Judge Ronald M. Whyte Granting 12 Motion to Dismiss; Denying Certificate of Appealability. (jg, COURT STAFF) (Filed on 6/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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AMINAH DORSEY,
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Petitioner,
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vs.
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WARDEN W. MILLER,

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Respondent.

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No. C 11-5798 RMW (PR)
ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS; DENYING CERTIFICATE
OF APPEALABILITY
(Docket No. 12)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, challenging her conviction and sentence imposed by the Superior

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Court of Alameda County. The court issued an order to show cause. In lieu of an answer,

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respondent has filed a motion to dismiss the petition as untimely and procedurally defaulted.

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Petitioner has filed an opposition, and respondent has filed a reply. For the reasons stated below,

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the court GRANTS respondent’s motion to dismiss the petition as untimely.

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I.

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BACKGROUND
On June 5, 2008, petitioner pleaded no contest to second degree murder. (Opp. at 1.) On

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December 19, 2008, she was sentenced to a term of 15 years to life in state prison. (Pet. at 2.)

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Petitioner did not appeal. (Id. at 3.)

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On June 21, 2010, petitioner filed a state habeas petition in superior court. (Mot., Ex. 1.)

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On August 18, 2010, the superior court denied it as untimely and on the merits. (Id., Ex. 2.) On
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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October 14, 2010, the California Court of Appeal denied petitioner’s state habeas petition. (Id.,

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Ex. 3.)

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On December 20, 2010, petitioner filed another state habeas petition in superior court.

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(Id., Ex. 4.) On February 16, 2011, the superior court denied it as untimely, successive, and on

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the merits. (Id., Ex. 5.) On April 7, 2011, the California Court of Appeal denied petitioner’s

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state habeas petition. (Id., Ex. 6.) On September 21, 2011, the California Supreme Court denied

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petitioner’s state habeas petition. (Id., Ex. 7.)

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On November 18, 2011, petitioner filed another state habeas petition in California
Supreme Court, which denied it on March 21, 2012. (Id., Ex. 8.)

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On December 1, 2011, petitioner filed the underlying federal petition. In the petition,

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petitioner claims that counsel was ineffective for: (1) failing to object to inaccurate statements in

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her probation report, (2) failing to provide her with a copy of her probation report, and (3) failing

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to adequately investigate defenses.

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II.

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DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on

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April 24, 1996, and imposed for the first time a statute of limitations on petitions for a writ of

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habeas corpus filed by state prisoners. 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 the date on which: (1) the

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judgment became final after the conclusion of direct review or the time passed for seeking direct

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review; (2) an impediment to filing an application created by unconstitutional state action was

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removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was

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recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and

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made retroactive to cases on collateral review; or (4) the factual predicate of the claim could

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have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time

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during which a properly filed application for state post-conviction or other collateral review is

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pending is excluded from the one-year time limit. 28 U.S.C. § 2244(d)(2).

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The one-year period generally will run from “the date on which the judgment became
final by conclusion of direct review or the expiration of the time for seeking such review.” 28
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U.S.C. § 2244(d)(1)(A). If a petitioner could have sought review by the state court of appeals or

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the state supreme court, but did not, the limitation period will begin running against him the day

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after the date on which the time to seek such review expired. Gonzalez v. Thaler, 132 S. Ct. 641,

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653-654 (2012). Here, petitioner’s conviction became final on February 17, 2009 – 60 days after

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her sentencing on December 19, 2008. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir.

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2006) (because California prisoner did not appeal his conviction, process of direct review

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became final 60 days after conviction); Cal. Rule of Court 8.308(a). Thus, petitioner had until

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February 17, 2010 to file her federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243,

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1246 (9th Cir. 2001). Petitioner’s federal petition, filed on December 1, 2011, therefore, is

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untimely unless she is entitled to statutory or equitable tolling.

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

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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). Here, there is no

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basis for statutory tolling because petitioner’s first state habeas petition was not filed until June

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21, 2010, approximately four months after the limitations period had already expired. See

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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit

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the reinitiation of the limitations period that has ended before the state petition was filed,” even

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if the state petition was timely filed). Accordingly, petitioner’s first state petition did not toll the

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statute of limitations. Moreover, petitioner’s remaining state habeas petitions were all filed after

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the limitations period had already expired, and thus, could not have extended the limitations

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deadline. See id.

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Petitioner appears to argue that the statute did not commence until the time she was

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aware of the “newly discovered evidence,” or factual predicate of her claims. See 28 U.S.C.

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§ 2244(d)(1)(D). (Opp. at 6.) Presumably, the newly discovered evidence of which she speaks

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is the probation report that she did not receive until April 3, 2009. (Id. at 2.) However, even if

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the statute of limitations did not begin to run until April 4, 2009, giving petitioner until April 4,

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2010, to file a federal petition, petitioner’s December 1, 2011 petition would still be untimely,

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and petitioner’s June 21, 2010 state habeas petition would still not toll the statute. See Ferguson,
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321 F.3d at 823.
Petitioner also does not demonstrate that she is entitled to equitable tolling. The Supreme

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Court has determined that Section 2244(d) is subject to equitable tolling in appropriate cases.

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Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). “[A] petitioner is entitled to equitable tolling

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

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extraordinary circumstance stood in his way and prevented timely filing.” Id. at 2562 (internal

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quotation marks omitted). Once a petitioner is notified that his petition is subject to dismissal

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based on AEDPA’s statute of limitations and the record indicates that the petition falls outside

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the one-year time period, the petitioner bears the burden of demonstrating that the limitation

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period was sufficiently tolled under statutory or equitable principles. See Smith v. Duncan, 297

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F.3d 809, 814 (9th Cir. 2002).

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Here, petitioner was given notice that the petition was subject to dismissal, and was

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provided an opportunity to respond. Although petitioner attempts to show that she was diligent –

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for example, she attempted to modify her sentence, tried to get a copy of the abstract of

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judgment, and searched for legal assistance – petitioner has failed to present any argument as to

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what or how extraordinary circumstances stood in her way and prevented timely filing.

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Moreover, the Ninth Circuit has held that a prisoner’s pro se status, on its own, is not enough to

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warrant equitable tolling. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). In addition,

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petitioner’s federal claims are, inter alia, that she did not receive the probation report on time,

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and counsel failed to object to inaccurate statements from the probation report during sentencing.

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Petitioner was present at sentencing and could have asked to see the probation report at that time.

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Thus, petitioner has not demonstrated that any “extraordinary circumstances were the cause of

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[her] untimeliness and that the extraordinary circumstances made it impossible to file a petition

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on time.” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and

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citations omitted). Further, because there is no “causal connection” between the grounds upon

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which she asserts a right to equitable tolling and her inability to timely file a federal habeas

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application, petitioner is not entitled to equitable tolling. Gaston v. Palmer, 417 F.3d 1030,

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1034-35 (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).
Accordingly, the petition must be dismissed as untimely under 28 U.S.C. § 2244(d).1

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III.

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CONCLUSION
Respondent’s motion to dismiss the petition is GRANTED. The instant petition is

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DISMISSED. The clerk shall terminate all pending motions and close the file.

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IV.

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CERTIFICATE OF APPEALABILITY
For the reasons set out in the discussion above, petitioner has not shown “that jurists of

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reason would find it debatable whether the district court was correct in its procedural ruling.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

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IT IS SO ORDERED.
DATED: _________________________

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_________________________
RONALD M. WHYTE
United States District Judge

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Because the court is dismissing the petition on timeliness grounds, it is unnecessary to
address respondent’s alternative argument that one claim is procedurally defaulted.
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

AMINAH S R DORSEY,

Case Number: CV11-05798 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
WARDEN et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on June 13, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Aminah Dorsey X34913
PO Box 1508
Chowchilla, CA 93610
Dated: June 13, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk