Sexton v. Adams

Filing 18

ORDER (1) Adopting (Doc. 13 ) Report and Recommendation, (2) Granting (Doc. 10 ) Motion to Dismiss, and (3) Dismissing Petition With Prejudice. The Court Denies a certificate of appealability. The Court Grants (Doc. 17 ) Petitioner's Motion of a copy of his Objection. Signed by Judge Thomas J. Whelan on 7/19/2010. (All non-registered users served via U.S. Mail Service) (Copy of document 15 mailed to Petitioner) (cap)

-POR Sexton v. Cate

Doc. 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 vs. DERRAL G. ADAMS, Warden Respondent. Steven Anthony Sexton ("Petitioner"), a state prisoner proceeding pro se, filed STEVEN ANTHONY SEXTON, Petitioner, CASE NO. 09-CV-1069 W (CAB) ORDER (1) ADOPTING REPORT AND RECOMMENDATION [DOC. 13], (2) GRANTING MOTION TO DISMISS [DOC. 10], AND (3) DISMISSING PETITION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

19 a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"). On 20 September 21, 2009, Respondent Derral G. Adams filed a Motion to Dismiss. On April

21 9, 2010, United States Magistrate Judge Louisa S. Porter issued a Report and 22 Recommendation ("Report"), recommending that this Court grant the motion. On 23 June 15, 2010, Petitioner filed an Objection to the Report, and on July 14, 2010, 24 Petitioner filed a motion requesting a copy of his Objection. 25

The Court decides the matters on the papers submitted and without oral

26 argument. See Civ. L.R. 7.1(d.1). As an initial matter, the Court will GRANT 27 Petitioner's request for a copy of his Objection. (Doc. 17.) Additionally, for the reasons

28 outlined below, the Court ADOPTS the Report (Doc. 13), GRANTS the motion to
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1 dismiss (Doc. 10), DISMISSES the Petition WITH PREJUDICE, and DENIES a 2 certificate of appealability. 3 4 I. 5 6 BACKGROUND Petitioner did not object to the following factual summary taken from the Report. On May 23, 2002, a San Diego Superior Court jury found Petitioner guilty of two

7 counts of robbery and use of a handgun to commit a robbery. (Report at 2.) Petitioner 8 was later sentenced to seventy years to life. (Id.) Petitioner appealed his convictions. 9 (Id.) On February 4, 2004, the California Supreme Court denied the appeal. (Id.) 10 On August 13, 2004, Petitioner filed a petition for writ of habeas corpus in the 11 San Diego Superior Court. (Report at 2.) The court denied the petition on September 12 20, 2004. (Id.) Approximately one year later, on October 3, 2005, Petitioner filed a 13 second habeas petition with the same court. (Id.) 15 The court found Petitioner 14 substantially delayed in filing the petition and denied it on November 28, 2005.1 (Id.) On February 16, 2007, Petitioner filed a federal habeas petition. After filing 16 several amended petitions, on December 12, 2007, Petitioner filed a motion to withdraw 17 the petition, which was granted. (Report at 3.) Then on April 23, 2008, Petitioner filed 18 a habeas petition with the California Supreme Court, which was denied on September 19 17, 2008. (Id.) 20 On May 14, 2009, Petitioner commenced the instant Petition. (Report at 3.) On 21 September 21, 2009, Respondent filed a motion to dismiss the Petition on the ground 22 that it is time barred. (Id. at 4.) Petitioner did not file an opposition. (Id.) 23 On April 9, 2010, Judge Porter issued the Report recommending that the Court 24 grant the motion. The Report found that the Petition is time barred by the one-year 25 statute of limitation provided by the Antiterrorism and Effective Death Penalty Act, 28 26 27
Petitioner continued to file state habeas petitions in the San Diego Superior Court. Specifically, Petitioner filed petitions on January 25, 2006; February 13, 2007; and October 29, 28 2007. (Report at 2-3.) Each petition was denied. (Id.)
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1 U.S.C. 2254 ("AEDPA"), and does not qualify for sufficient statutory-tolling to render 2 it timely. (Id. at 7-8.) On June 15, 2010, Petitioner filed an Objection to the Report. 3 (Doc. 15.) 4 5 II. 6 LEGAL STANDARD The duties of the district court in connection with a magistrate judge's report and

7 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 8 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those 9 portions of the report ... to which objection is made," and "may accept, reject, or modify, 10 in whole or in part, the findings or recommendations made by the magistrate." 28 11 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 12 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). 13 14 III. 15 D ISCUSSION In the motion to dismiss, Respondent argued that the Petition should be

16 dismissed because it is untimely. Respondent acknowledged that Petitioner qualifies for 17 some statutory tolling, but not enough to render the Petition timely. The Report agreed 18 with Respondent. 19 Petitioner filed an Objection, but failed to identify any deficiencies with the 20 Report's analysis. Having read and considered the Petition, Report, and Objection, the 21 Court finds the Report presents a well-reasoned analysis of the issues. The Court, 22 therefore, concludes that the Petition is time barred. 23 24 25 A. Petitioner's Claim is Time Barred. The Petition is governed by the provisions of AEDPA. See Lindh v. Murphy, 521

26 U.S. 320, 336 (1997). AEDPA imposes a one-year statute of limitations for a state 27 prisoner filing a federal-habeas petition. 28 U.S.C. § 2244(d)(1). The one-year 28 limitations period begins to run on "the date on which judgment became final by the
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1 conclusion of direct review or the expiration of the time for seeking such review." Id. § 2 2244(d)(1)(A). The period of "direct review" under § 2244(d)(1)(A), includes the 903 day period within which the petitioner could have filed a petition for a writ of certiorari 4 to the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 5 1999). Therefore, where the petitioner seeks direct review, but does not file a petition 6 for writ of certiorari, the one-year period begins to run 90 days after the California 7 Supreme Court's decision. Id. 8 In the instant case, the California Supreme Court denied Petitioner's direct 9 appeal on February 4, 2004. (Report at 2.) Because Petitioner did not file a petition for 10 writ of certiorari with the United States Supreme Court, the judgement became final 90 11 days later, on May 5, 2004. (Id., at 5.) Therefore, Petitioner's deadline for filing the 12 instant Petition was May 5, 2005. (Id.) 13 Petitioner did not file the Petition until May 14, 2010, more than four years after 14 AEDPA's one-year statute of limitations expired. (Report at 5.) As such, the Report 15 correctly found the Petition is time barred, unless statutory tolling applies. (Id.) 16 17 18 19 20 21 22 B. Although Petitioner is Entitled to Some Statutory Tolling, the Petition Remains Time Barred. The AEDPA statutory-tolling provision provides: The time during which a properly filed application for State postconviction 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.

23 22 U.S.C. § 2244(d)(2). Thus, AEDPA's one-year limitations period is tolled while a 24 petitioner seeks post conviction relief in state court. Nino v. Galaza, 183 F.3d 1003, 25 1006 (9th Cir. 1999). 26 The statute of limitations is not tolled between the final decision on direct appeal 27 and the first habeas challenge, because no case is pending during that interval. Nino, 28
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1 183 F.3d at 1006. Instead, tolling begins after the first state habeas petition is filed with 2 the trial court and­as long as the subsequent petitions with the appellate court are 3 properly filed­continues until the California Supreme Court denies the petition. Evans 4 v.Chavis, 546 U.S. 189, 191 (2006). 5 An untimely petition is not "properly filed" and thus does not toll the statute of 6 limitations. Townsend v. Knowles, 562 F.3d 1200, 1205 (9th Cir. 2009). In California, 7 because there is no definitive time frame for filing a habeas petition, a filing is timely if 8 done within a "reasonable" time. Evans, 546 U.S. at 192. However, the United States 9 Supreme Court found a six-month, "unjustified" and "unexplained" delay to be 10 unreasonable. Id. at 201. 11 As explained above, Petitioner's direct appeal became final on May 5, 2004, 12 ninety days after the California Supreme Court dismissed the appeal. At that point, the 13 limitations period began to run, and did not stop until August 13, 2004, when Petitioner 14 filed his first state habeas petition. Accordingly, the Report correctly found that after 15 the completion of his state collateral review, Petitioner had 266 days remaining to file 16 the instant Petition. (Report at 6.) 17 On September 20, 2004, the San Diego Superior Court denied Petitioner's first 18 habeas petition. (Report at 6.) Petitioner, however, then waited for more than a 19 year­until October 3, 2005­to file a second habeas petition in the same court. (Id.) 20 Under Evans, because Petitioner failed to justify the substantial delay in filing the 21 second petition, the statute of limitations was not tolled during this period, rendering 22 the instant Petition time barred. Accordingly, the Report correctly found that, despite 23 statutory-tolling, the instant Petition remains untimely. 24 25 IV. 26 28
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CONCLUSION AND ORDER In light of the foregoing, the Court ADOPTS the Report (Doc. 13), GRANTS

27 Respondent's motion (Doc. 10), and DISMISSES the Petition WITH PREJUDICE.

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Moreover, because reasonable jurists would not find the Court's assessment of the

2 claims debatable or wrong, the Court DENIES a certificate of appealability. See Slack 3 v. McDaniel, 529 U.S. 473, 484 (2000). 4 Finally, the Court will GRANT Petitioner's motion (Doc. 17) for a copy of his 5 Objection. Accordingly, the clerk of the court is instructed to mail Petitioner a copy of 6 his Objection (Doc. 15). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IT IS SO ORDERED.

DATED: July 19, 2010 Hon. Thomas J. Whelan United States District Judge