Sundberg v. Oreol

Filing 28

REPORT AND RECOMMENDATION (AGS): It is this Court's report and recommendation that respondent's motion to dismiss (ECF No. 13 ) be granted. Signed by Magistrate Judge Andrew G. Schopler on 01/10/2018.(All non-registered users served via U.S. Mail Service)(mxa)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No. 16-cv-3127-WQH-AGS

Kelly Frithiof SUNDBERG,

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Petitioner,

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v.

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REPORT AND RECOMMENDATION
TO GRANT RESPONDENT’S
MOTION TO DISMISS (ECF No. 13)

Harold OREOL,

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Respondent.

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Kelly Sundberg’s deadline for filing a federal habeas petition was May 6, 2000. He

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ultimately filed that petition—16 years late. Because no statutory or equitable tolling

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excuses his untimeliness, his petition must be dismissed.

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BACKGROUND

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Sundberg’s torturous procedural journey to federal court began with his acquittal.

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On February 11, 1999, a California state trial court found him not guilty by reason of

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insanity of four felony crimes of violence, including attempted murder. (ECF No. 14-2,

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at 1.) A few weeks later, after finding that Sundberg had not recovered his sanity, the trial

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court committed him to Patton State Hospital for a maximum term of life plus six years.

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(Id. at 2; ECF No. 14-4, at 1.)

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The relevant procedural benchmarks following Sundberg’s commitment are
sketched out below.
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Judgment Becomes Final (May 6, 1999)

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Judgment was entered on March 7, 1999, and Sundberg never filed a direct appeal.

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(ECF No. 1, at 2; ECF No. 13-1, at 2 n.1; but see ECF No. 14-2, at 2 (judgment date listed

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as “March 5, 1999”).) Thus, on May 6, 1999, his judgment became final for federal habeas

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purposes, when the 60-day time limit expired for seeking direct review. See 28 U.S.C.

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§ 2244(d)(1)(A); Cal. R. Ct. 31 (1999), recodified at Cal. R. Ct. 8.308 (A “notice of appeal

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. . . must be filed within 60 days” of judgment.).

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Sundberg alleges that his retained appellate attorney never filed his direct appeal.

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(ECF No. 1, at 2, 10, 21-25.) As a result, Sundberg’s $3,250 retainer fee was reimbursed

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(see id. at 26), and he asserts that the attorney was later disbarred. (Id. at 10.) In fact, a

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California attorney by the same name was disbarred in 2007 based on similar allegations.

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See In re Elizabeth Ann Guittard, Case Nos. 05-O-03826-RAP, 06-O-11537 (Cons.) (Cal.

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Dec. 26, 2006), http://members.calbar.ca.gov/courtDocs/05-O-03826.pdf).

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One-Year Federal Habeas Deadline Expires (May 6, 2000)

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Absent a basis for tolling, Sundberg’s one-year deadline for filing a federal habeas

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petition expired on May 6, 2000, one year after his judgment became final. See 28 U.S.C.

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§ 2244(d)(1).

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First Two State Habeas Petitions (2004-2006)

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On April 2, 2004, Sundberg filed his first state habeas petition, which was denied by

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the trial court. (ECF No. 14-2, at 2.) On May 10, 2006, he filed a second state habeas

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petition in the trial court, which was denied on July 5, 2006, for multiple reasons, including

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that it was an improper successive petition. (Id. at 2-3.)

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Third State Habeas Petition (May-June 2012)

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Sundberg waited almost six years to file his next state trial-court petition for a writ

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of habeas corpus. On May 22, 2012, he filed that third petition, which was denied two

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weeks later on June 6, 2012. (ECF No. 14-2, at 3.)

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Fourth State Habeas Petition and Further Litigation (May-December 2016)

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After four more years with no action, on July 28, 2016, Sundberg filed his fourth
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state habeas petition, which the trial court summarily denied on September 6, 2016, for

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“abusing the writ process.” (See id. 3-4.) Sundberg then began a determined climb up the

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state appellate ladder, filing a similar habeas petition in the California Court of Appeal

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(denied less than a week later on September 19, 2016), followed by another one in the

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California Supreme Court (denied within two months, on December 14, 2016). (ECF No.

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14-4, at 2-3; ECF No. 14-6, at 1.)

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Federal Habeas Petition Filed (December 2016)

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On December 19, 2016, shortly after the California Supreme Court rejected his latest

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state petition, Sundberg submitted his habeas petition under 28 U.S.C. § 2254 to this Court.

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(ECF No. 1, at 9.) Respondent now moves to dismiss Sundberg’s petition as untimely and

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procedurally defaulted by the “independent and adequate state ground” doctrine. (ECF

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No. 13, at 2.)

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DISCUSSION

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Under the Antiterrorism and Effective Death Penalty Act, with limited exceptions,

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a person confined in state custody must file any federal habeas corpus petition within one

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year from the “date on which the judgment became final by the conclusion of direct review

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or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d). The AEDPA’s

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one-year time limitation governs judgments of not guilty by reason of insanity that result

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in confinement. See Duncan v. Walker, 533 U.S. 167, 176 (2001) (holding that, under

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§ 2244(d), federal habeas review extends to “a state court’s commitment of a person to a

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mental institution upon a verdict of not guilty by reason of insanity” (citation omitted)).

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Since Sundberg’s one-year deadline for seeking federal habeas relief ended on May 6,

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2000, his only recourse would be equitable or statutory tolling.

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A.

Statutory Tolling

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The AEDPA’s one-year statute of limitations is tolled during the period of any

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properly-filed state collateral or post-conviction proceedings. See 28 U.S.C. § 2244(d)(2).

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But Sundberg never filed a state petition for collateral review during the one-year period;

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his first state habeas petition was filed five years after trial and nearly four years after his
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federal habeas deadline. Filing a late petition does not restart the AEDPA’s statute of

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limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[W]e hold that

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section 2244(d) does not permit the reinitiation of the limitations period that has ended

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before the state petition was filed.”). Thus, statutory tolling is unavailable.

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B.

Equitable Tolling

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The AEDPA’s statute of limitations is also “subject to equitable tolling in

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appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). But

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Sundberg qualifies for such 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

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prevented timely filing.” Id. at 649 (citation omitted). The Ninth Circuit has cautioned that

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“equitable tolling is unavailable in most cases and is appropriate only if extraordinary

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circumstances beyond a prisoner’s control make it impossible to file a petition on time.”

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Mirando v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citations and quotation marks

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omitted). “[T]he threshold necessary to trigger equitable tolling under AEDPA is very high,

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lest the exceptions swallow the rule.” Id.

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While Sundberg’s difficulties with his now-disbarred appellate attorney may qualify

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as extraordinary circumstances, he cannot meet the other prong of the analysis: diligent

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pursuit of his rights. When Sundberg’s second state habeas petition was denied in 2006, he

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certainly had the means to file a federal petition and he understood that no one else would

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do it for him. Yet he waited nearly six years before filing his third state petition, and then

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another four years before filing his fourth state petition. Even ignoring all the other delays,

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this ten-year gap of inactivity—after Sundberg demonstrated an ability to file his own

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collateral attacks—cannot qualify as diligent pursuit of his rights. See Taylor v. Filson, 692

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F. App’x 821, 822 (9th Cir. 2017) (denying equitable tolling, based in part on the fact that

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the prisoner, who had “mental health issues,” had “filed two state post-conviction actions,

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indicating that he had the means to file a federal action.”).

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CONCLUSION
Because Sundberg filed his federal habeas petition more than 16 years after the
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statute of limitations expired, and no tolling is available, this Court recommends that

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respondent’s motion to dismiss be GRANTED and that the petition be DISMISSED with

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prejudice.

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Upon being served with a copy of this report, the parties have 14 days to file any

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objections. See Fed. R. Civ. P. 72(b)(2). Upon being served with any objections, the party

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receiving such objections has 14 days to file any response. See id.

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Dated: January 10, 2019

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