Uhuru v. Marshall et al

Filing 19

REPORT AND RECOMMENDATIONS re Petition for Writ of Habeas Corpus filed by Diallo E Uhuru. Court recommends that Respondent's 11 MOTION to Dismiss Second Amended Petition for Writ of Habeas Corpus be granted. Objections to R&R due by 6/29/2009. Replies due by 7/13/2009. Signed by Magistrate Judge Leo S. Papas on 5/29/2009. (All non-registered users served via U.S. Mail Service).(jah) (jrl).

1 2 3 4 5 6 7 8 9 10 11 v. 12 JOHN MARSHALL, Warden, 13 Respondent. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DIALLO E. UHURU, Petitioner,

) ) ) ) ) ) ) ) )

Civil No. 08-2424-IEG(LSP) REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. #11)

On December 29, 2008, Petitioner Diallo E. Uhuru (hereafter "Petitioner") a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254.1 Respon-

dent has filed a Motion to Dismiss the Petition ("Motion"). Petitioner has filed A "Notice of Motion and Objections to Motion to Dismiss Second Amended Petition for Writ of Habeas Corpus, which the Court construes as an Opposition to the Motion. Petitioner has also filed a "Traverse." Respondent asserts that the

Petition is untimely, and that neither statutory nor equitable tolling applies to make the Petition timely. Petitioner argues

that his Petition is timely filed if he receives the benefit of equitable tolling of the statute of limitations. The Court, having reviewed Petitioner's Petition for Writ

The Petition is styled "Second Amended Petition."

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of Habeas Corpus, the exhibits attached thereto, the Motion to Dismiss, the lodgments submitted by Respondent, Petitioner's Opposition and Traverse, finds that the Petition is barred by the statute of limitations. Therefore, the Court RECOMMENDS that

Respondent's Motion to Dismiss be GRANTED. I PROCEDURAL HISTORY On February 22, 2000, Petitioner pled guilty to second degree murder while using a gun. (Respondent's Lodgment No. 1 at 20, 23, 26-29, Lodgment No. 2 at 1-3) On March 21, 2000, the Court sentenced Petitioner to 25 years to life imprisonment. (Respondent's Lodgment No. 1 at 27-29, Lodgment No. 2 at 1) Petitioner did not appeal his conviction or sentence. On November 22, 2004, Petitioner filed2 a Petition for Writ of Habeas Corpus in the San Diego Superior Court. The Petition It did not

challenged the conditions of Petitioner's confinement.

challenge the constitutionality of his conviction or sentence. (Respondent's Lodgment No. 6) On January 7, 2005, the Superior

Court denied the Petition because it was not signed and it sought relief already being pursued in a Petition for Writ of Habeas Corpus filed in the Los Angeles Superior Court. (Respondent's Lodgment No. 7) On August 9, 2006, Petitioner attempted to file a Notice of Appeal in the San Diego Superior Court. The Notice of Appeal was

stamped "Received But Not Filed." (Respondent's Lodgment No. 8) On August 10, 2006, the Court sent a letter to Petitioner informing

2 The Court gives Petitioner the benefit of the "mailbox rule" which deems that a petition is constructively filed when it is delivered to prison officials for filing. Houston v. Lack 487 U.S. 266 (1988)

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him that his appellate rights had expired. (Respondent's Lodgment No. 9) On April 3, 2007, Petitioner filed another Petition for Writ of Habeas Corpus in the San Diego Superior Court. (Respondent's Lodgment No. 10) On June 1, 2007, the Petition was denied as successive, untimely and without merit. (Respondent's Lodgment No. 11) On June 28, 2007, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. (Respondent's Lodgment No. 12) On October 5, 2007, the Petition was denied. (Respondent's Lodgment No. 13) On October 22, 2007, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. (Respondent's Lodgment No. 14) On April 16, 2008, the Petition was denied as untimely, citing In re Robbins 18 Cal. 4th 770 (1998) On December 29, 2008, Petitioner filed the Petition for Writ of Habeas Corpus that is now before this Court. II PETITIONER'S PETITION IS BARRED BY THE STATUTE OF LIMITATIONS A. The AEDPA's One-Year Statute of Limitations.

Respondent argues that the Petition is barred by the Antiterrorism and Effective Death Penalty Act's ("the AEDPA") statute of limitations. The provisions of the AEDPA apply to petitions

for writs of habeas corpus filed in federal court after the AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521

U.S. 320, 117 S. Ct. 2059, 2068 (1997). Because the Petition was filed on December 29, 2008, the AEDPA applies to this case.

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Prior to the enactment of the AEDPA on April 24, 1996, "state prisoners had almost unfettered discretion in deciding when to file a federal habeas petition." Calderon v. United States

Dist. Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), cert. denied, 118 U.S. 897 (1998), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). "[D]elays of more than a decade did not necesId.

sarily bar a prisoner from seeking relief."

With enactment of the AEDPA, a state prisoner's time frame for seeking federal habeas relief was dramatically limited. The

AEDPA amended 28 U.S.C. § 2244 by, in part, adding subdivision (d), which provides for a one-year limitation period for state prisoners to file habeas corpus petitions in federal court. Section 2244(d) states, in pertinent part: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (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 by 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 4
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exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C.A. § 2244(d) The Ninth Circuit has noted that under 28 U.S.C.A. §2244(d)(1)(A), a conviction becomes final by the expiration of the time to seek review from the highest court, whether or not such a petition is actually filed. Wixom v. Washington, 264 F.3d

894, 897(9th Cir.2001); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Direct review of Petitioner's conviction was comPetitioner had until sixty days from

pleted on March 21, 2000.

the date of his conviction to appeal his conviction and sentence. Smith v. Duncan 297 F.3d 809, 812-13 (9th Cir. 2002), Cal. R. Ct. 30.1(a)[now Cal. R. Ct. 8.308(a)] Therefore, on May 22, 2000,

Petitioner's conviction became final and the statute of limitations began to run. Absent any statutory or equitable tolling, the statue of limitations for Petitioner expired on May 22, 2001. 1. Petitioner Is Not Entitled to Statutory Tolling The statute of limitations is tolled while a "properly filed" state habeas corpus petition is "pending" in the state court. Under the holding of Nino v. Galaza 183 F.3d 1003, 1006 (9th Cir. 1999), the "statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects petitioner's final collateral challenge," provided the petitions were properly filed and pending during that entire time.

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The statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case "pending" during that interval. Nino 183 F.3d at 1006

The meaning of the terms "properly filed" and "pending" in Nino have been clarified by the United States Supreme Court. In

Carey v. Saffold 536 U.S. 214 (2002), the Court held that the time between the denial of a petition in a lower California court and the filing of a subsequent petition in the next higher court does not toll the statute of limitations, if the petition is ultimately found to be untimely. Id. at 223-26. In Pace v. DiGuglielmo 544

U.S. 408 (2005), the Court held that statutory tolling is not available for the period a petition is under consideration, if it is dismissed by the state court as untimely. Id. at 413. In

Evans v. Chavis 546 U.S. 189 (2006), the Court held that in the absence of a clear indication by the California Supreme Court that a petition is untimely, "the federal court must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Id. at 197

The Evans Court gave some guidance in making that determination: federal courts must assume (until the California courts state otherwise) that California law regarding timeliness does not differ significantly from other states which use thirty or sixty day rules for untimeliness and, a six month unexplained delay is presumptively unreasonable. In this case, Petitioner's first petition for post conviction relief was filed in the San Diego Superior Court on November

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22, 20043. (Respondent's Lodgment No. 6).

From May 21, 2000 (the

date Petitioner's conviction became final) to November 22, 2004, 2004, four years, six months and one day elapsed. Therefore,

Petitioner filed his first petition for post-conviction relief well over four years after the statute of limitations expired.4 Thus, Petitioner is not entitled to statutory tolling. 2. Petitioner Is Entitled to Some Equitable Tolling of the Statute of Limitations

The one-year statute of limitations is subject to equitable tolling. Calderon 128 F.3d at 1288. Equitable tolling of the

statute of limitations is appropriate where a habeas petitioner shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo 544 U.S. 408, 418 (2005). When courts assess a habeas

petitioner's argument in favor of equitable tolling, they must conduct a "highly fact-dependent" inquiry. Whalem/Hunt v. Early 233 F.3d 1146, 1148 (9th Cir. 2000), Lott v. Mueller 304 F.3d 918, 923 (9th Cir. 2002) The extraordinary circumstances must be the "but-for and proximate cause" of the untimely filing. Allen v. Lewis 255 F.3d 798, 800 (9th Cir. 2001). Respondent argues that Petitioner is not entitled to equitable tolling because equitable tolling is only available to petitioners who pursue their rights diligently and that Petitioner did not pursue his rights diligently in this case.
3

Moreover,

The Court notes that the November 22, 2004 Petition filed in the San Diego Superior Court did not challenge the constitutionality of Petitioner's conviction or sentence. Nevertheless, the Court gives Petitioner the benefit of the doubt by using the November 22, 2004 Petition as Petitioner's first petition for postconviction relief.
4 From August 9, 2006 to October 22, 2007, Petitioner filed numerous pleadings in the San Diego Superior Court, Los Angeles Superior Court, California Court of Appeal and California Supreme Court.

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Respondent argues that the evidence presented to the Court shows that Petitioner had ample time to timely file a Petition in this Court and did not do so. Petitioner asserts that his mental illness was an extraordinary circumstance beyond his control that prevented his timely filing. Specifically, Petitioner argues that he suffers from paranoid schizophrenia. Respondent was ordered to lodge with the Court, inter alia, Petitioner's psychiatric records dated from May 22, 2000 to November 22, 2004. On May 27, 2009, Respondent lodged Petitioner's psychiatric records, as ordered. Petitioner's claim may qualify

as the "but-for and proximate cause" of his untimely filing. In light of Petitioner's contentions of entitlement to equitable tolling and Respondent's refutation of those contentions, this Court will conduct the required fact-dependent inquiry of the relevant time period5 to determine if Petitioner is entitled to equitable tolling. a. Whalem/Hunt 233 F.3d at 1148

Petitioner's Mental Capacity

Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an "extraordinary circumstance beyond (his) control," and the deadline should be equitably tolled. LaMarque 351 F.3d 919, 923 (9th Cir. 2003). Therefore, whether the limitations period should be tolled depends on whether his mental illness between May 22, 2000 and November 22, 2004 constituted the kind of extraordinary circumstance beyond his control that made timely filing impossible. No
May 21, 2000 to November 22, 2004 (the date Petitioner's conviction became final through Petitioner's first post-conviction petition for relief).
5

Laws v.

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other time period is relevant to the analysis.

b.

Petitioner's Psychiatric Records (Respondent's Lodgment No. 17)

2000 - 2001 Petitioner's psychiatric records indicate that from 2000 to 2001, Petitioner was prescribed the medications Prozac6, Zyprexa7 and Vistaril8. During his period, at times, Petitioner reported that he was depressed and appeared anxious and agitated. Prison

psychiatrists diagnosed Petitioner as possibly suffering from paranoid schizophrenia. However, prison psychiatrists assessed

Petitioner's fund of information, intellectual functioning, organization of thought, reality contact and thought quality to be within normal limits. Further, they found Petitioner's orienta-

tion, memory, attention and concentration to be within normal limits. 2002 In 2002, Petitioner's mental condition appeared to be the same or better than from 2000 to 2001. Petitioner continued on

the same prescribed medications and reported to prison psychiatrists, "I'm Okay," and that he was "doing okay on his medications." 2003 On August 22, 2003, Petitioner was prescribed the medica-

6

Prozac is a drug that is used for treating depression. www.medicinenet.com

7 Zyprexa is a drug that is used to treat schizophrenia. It is also used in combination with Prozac for treatment of resistant depression. www.medicinenet.com

Vistaril is an antihistamine with drying and sedative properties that is used to treat allergic reactions. www.medicinenet.com

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tion Risperdal and Geodon9 to be added to the medications that had already been prescribed. On September 21, 2003, Petitioner reported hearing voices. However, on October 23, 2003, prison

psychiatrists assessed Petitioner's intellectual functioning, organization and association of thought, reality contact and thought quality to be within normal limits. 2004 Petitioner appeared to be doing well until mid-2004. On

May 28, 2004, correctional officers reported that Petitioner was smearing feces in his cell and urinating on himself. Shortly

thereafter, Petitioner was seen on an emergency visit to a psychiatrist. Petitioner reported to the psychiatrist that he smeared

feces and urinated on himself so that he could be housed alone without a cell mate. On July 14, 2004, Petitioner reported to prison psychiatrists episodes of "blacking out." The psychiatrists described Petitioner as being disoriented, hostile, depressed, paranoid and with a tangential thought process. In September 2004, prison psychiatrists prescribed Buspar10 for Petitioner. From September 2004 to late October 2004, Petitioner reported he was "doing well, no complaints." However in

late October 2004, prison psychiatrists reported Petitioner to be irritable and menacing. On December 27, 2004, Petitioner reported that he was hearing voices. The Court's review of Petitioner's psychiatric records from

Risperdal and Geodon are drugs that are used to treat schizophrenia. www.medicinenet.com
10

9

Buspar is a drug that is used to treat anxiety. www.medicinenet.com

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July 14, 2004 to September 1, 2004, indicates that Petitioner may have suffered mental illness that caused him to fail to meet the AEDPA filing deadline. As noted above, on July 14, 2004, Petitioner reported to prison psychiatrists that he had episodes of "blacking out." Prison psychiatrists described Petitioner as

being disoriented, hostile, depressed, and paranoid with a tangential thought process. Giving Petitioner the benefit of the doubt,

the Court construes Petitioner's mental illness during that interval to be an extraordinary circumstance beyond his control that made him unable to file a timely Petition for Writ of Habeas Corpus in this Court. days elapsed. However, from May 22, 2000 to November 22, 2004 (other than noted above), Petitioner's psychiatric records do not indicate that Petitioner was mentally incompetent such that any mental condition in fact caused him to fail to meet the AEDPA filing deadline. In fact, the contrary appears to be true. During the From July 14, 2004 to September 1, 2004, 49

entire interval when the statute of limitations was not tolled, except for the short interval noted above, Petitioner appears to have had some psychiatric problems, but his intellectual functioning, organization and association of thought and thought quality was always within normal limits. Moreover, several times during

the period when the statute of limitations was not tolled, Petitioner reported that he was doing "Okay," and "Okay on his medications." The Court is cognizant of Petitioner's May 28, 2004 incident in which Petitioner was seen smearing feces in his cell and urinating on himself. This type of behavior may show mental However, here, that is not the case. 11
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Petitioner reported to prison psychiatrists that he behaved the way he did to secure a cell in which he did not have a cell mate. Therefore, it appears that Petitioner knew what he was doing at the time, and thought his behavior might secure himself a singlebedded cell. Petitioner's psychiatric records do not indicate that Petitioner's behavior was the result of a mental illness. As a result, Petitioner is entitled to 49 days of equitable tolling. Therefore, if the Court subtracts 49 days (from July 14,

2004 to September 1, 2004) from the four years, six months and one day that the statute of limitations was not tolled, Petitioner's Petition for Writ of Habeas Corpus was still filed over four years after the statute of limitations expired. The Court finds that Petitioner has failed to establish that he is entitled to sufficient tolling of the statute of limitations pursuant to the doctrine of equitable tolling. Thus, Petitioner failed to file his Petition For Writ of Habeas Corpus with this court within the one-year statute of limitations mandated in 28 U.S.C. §2244(d)(1)(A). IV CONCLUSION After a thorough review of the record in this matter, the Court has determined that Petitioner has failed to comply with the AEDPA's statute of limitations and that he is not entitled to equitable tolling of the statute of limitations. 2244(d). Accordingly, the Court RECOMMENDS that Respondent's Motion to Dismiss be GRANTED. This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge 12
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assigned to this case, pursuant to the provision of 28 U.S.C. § 636(b)(1). IT IS ORDERED that no later than June 29, 2009, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned

"Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than July 13, 2009. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Ylst, 951 F.2d 1153 (9th Cir. 1991). Martinez v.

DATED:

May 29, 2009

Hon. Leo S. Papas U.S. Magistrate Judge

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