Bonella v. Stainer

Filing 11

ORDER by Judge Ronald M. Whyte Granting 10 Motion to Dismiss; Denying Certificate of Appealability. (jgS, COURT STAFF) (Filed on 12/2/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH BONELLA,
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Petitioner,
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vs.
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MICHAEL STAINER,

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Respondent.

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No. C 12-2869 RMW (PR)
ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS; DENYING CERTIFICATE
OF APPEALABILITY
(Docket No. 10)

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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 his conviction and sentence imposed by the Superior

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Court of Contra Costa 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 unexhausted. Although

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given an opportunity, petitioner has not filed an opposition. For the reasons stated below, the

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

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I.

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BACKGROUND
In 2009, petitioner was convicted of two counts of lewd and lascivious conduct with a

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child under the age of fourteen. (Resp. Ex. A at 32.) Petitioner was sentenced to a term of eight

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years. (Id.) On June 25, 2010, the California Court of Appeal affirmed. (Id.) On September 15,

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2010, the California Supreme Court denied review. (Id. at 2.)

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On November 22, 2011, petitioner signed and filed a petition for writ of habeas corpus in
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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the California Supreme Court. (Resp. Ex. B.) On March 21, 2012, the California Supreme

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Court denied the petition. (Id.)

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On November 30, 2011, petitioner filed a petition for writ of habeas corpus in federal

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court in Bonella v. Stainer, No. 11-5738 RMW. On June 5, 2012, the court dismissed the action

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for failing to pay the filing fee, and failing to state a claim for which relief could be granted.

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On May 21, 2012, petitioner filed the instant petition. See Houston v. Lack, 487 U.S.

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266, 275-76 (1988).

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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

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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 December 14, 2010 – 90 days

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after the California Supreme Court denied direct review, when the time for filing a petition for

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writ of certiorari expired. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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petitioner did not file petition for certiorari, his conviction became final 90 days after the

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California Supreme Court denied review). Thus, petitioner had until December 14, 2011, to file

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

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Petitioner’s federal petition, filed on May 21, 2012, therefore, is untimely unless he is entitled to

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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, petitioner

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is entitled to tolling from the date he filed his state habeas petition – November 22, 2011 – until

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the date the California Supreme Court denied the petition – March 21, 2012. At that point,

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petitioner had 22 days left in his statute of limitations, and needed to file his federal petition by

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April 12, 2012. Petitioner’s underlying petition, filed on May 21, 2012, is 39 days late.

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Respondent points out that petitioner’s earlier federal habeas petition would not have

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stopped or tolled the tolling period because an application for federal habeas corpus review is not

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an “application for State post-conviction or other collateral review” within the meaning of

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§ 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 180-81 (2001). Thus, the running of the

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limitation period is not statutorily tolled for the period during which a petition is pending in

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federal court. Id. at 181.

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Petitioner also does not demonstrate that he 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).
Order Granting Respondent’s Motion to Dismiss; Denying Certificate of Appealability
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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. However, petitioner has failed to present any argument as

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

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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 the claims are unexhausted.
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

JOSEPH BONELLA,

Case Number: CV12-02869 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
MICHAEL STAINER 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 February 21, 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.

Joseph Bonella G-56013
California Correctional Institution
PO Box 608
Fac.D/Drm 6/Bnk-45 Low
Tehachapi, CA 93581-0608
Dated: February 21, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk