Ibrahim v. Kernan

Filing 13

REPORT AND RECOMMENDATION re 6 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus filed by Scott Kernan Objections to R&R due by 2/8/2018 Replies due by 2/15/2018. Signed by Magistrate Judge Andrew G. Schopler on 1/25/2018.(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Hussein Aden IBRAHIM,

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No. 17-cv-0696-BEN-AGS
Petitioner,

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v.

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REPORT AND RECOMMENDATION
TO GRANT RESPONDENT’S
MOTION TO DISMISS (ECF No. 6)

Robert FOX, Warden,

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Respondent.

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Hussein Ibrahim’s federal habeas application may be late. The issue turns on

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whether his prior state habeas petition was “properly filed,” thereby tolling his deadline.

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See 28 U.S.C. § 2244(d)(2). The California Court of Appeal ruled that petition untimely

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(and thus not properly filed). And the California Supreme Court summarily affirmed,

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writing simply: “The petition for writ of habeas corpus is denied.” (ECF No. 7-8, at 1.)

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In the tea leaves of those nine discouraging words, however, Ibrahim divines victory.

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By not discussing the lateness issue, he proclaims, the state Supreme Court tacitly found

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his state petition timely. But the Ninth Circuit reads these tea leaves differently: when a

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higher state court affirms without explanation, “the federal court analyzes the last

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‘reasoned’ state court decision.” Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016)

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(en banc) (citation omitted). This dooms Ibrahim’s tolling argument, along with his federal

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habeas petition.
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BACKGROUND
A.

State-Court Trial and Sentencing Hearings (2012-2014)

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On January 18, 2012, a jury convicted Ibrahim of two violent crimes: assault by

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means likely to produce great bodily injury and battery with serious bodily injury. (ECF

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No. 7-4, at 1.) A couple years later, after he successfully appealed his lengthy sentence,

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Ibrahim was ultimately re-sentenced to 16 years in prison. (ECF No. 7-2, at 2.)

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B.

Judgment Becomes Final (August 30, 2015)

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The California Court of Appeal affirmed that 16-year sentence on July 21, 2015.

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(ECF No. 7-2, at 3.) When the 40-day time limit expired for seeking review in the

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California Supreme Court—on August 30, 2015—Ibrahim’s judgment became “final” for

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federal habeas purposes. See 28 U.S.C. § 2244(d)(1)(A); Cal. R. Ct. 8.366(b)(1) (California

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Court of Appeal decision “is final in that court 30 days after filing”); Cal. R. Ct. 8.500(e)(1)

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(“A petition for review [in the California Supreme Court] must be served and filed within

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10 days after the Court of Appeal decision is final in that court.”).

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C.

State Habeas Litigation (August 22, 2016—March 29, 2017)

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On August 22, 2016, Ibrahim began state post-conviction proceedings by filing a

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habeas petition in San Diego County Superior Court, which was denied on October 7, 2016.

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(ECF No. 7-4, at 2, 7.) Next, on December 6, 2016, he filed a habeas petition in the

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California Court of Appeal, which eight days later denied his petition as time-barred. (ECF

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No. 7-5, at 28; ECF No. 7-6, at 1.) Finally, on February 7, 2017, Ibrahim concluded his

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state habeas journey in the California Supreme Court, which summarily denied his petition

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on March 29, 2017, stating only: “The petition for writ of habeas corpus is denied.” (ECF

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No. 7-7, at 33, 35; ECF No. 7-8, at 1.)

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D.

Federal Habeas Petition (April 5, 2017)

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On April 5, 2017, Ibrahim filed his federal habeas petition with this Court. (ECF

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No. 1.) Respondent moves to dismiss the amended version of that petition as time-barred,

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as it was filed long after the one-year deadline for federal habeas review. Ibrahim responds

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that his federal petition is timely because his state post-conviction proceedings tolled the
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deadline.

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DISCUSSION

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Unless tolling applies, Ibrahim had exactly one year after his judgment became

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“final” to seek federal habeas review—that is, until August 30, 2016. See 28 U.S.C.

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§ 2244(d)(1). Seven months after that deadline, on April 5, 2017, he filed his federal habeas

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petition. The only issue is whether his state habeas proceedings, which lasted seven

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months, should be excluded from the calculations, which would make his federal petition

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timely.

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A.

Statutory Tolling

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The one-year statute of limitations is tolled during any “properly filed” state

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post-conviction proceedings. 28 U.S.C. § 2244(d)(2). But “a state postconviction petition

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is . . . not ‘properly filed’ if it was rejected by the state court as untimely.” Allen v. Siebert,

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552 U.S. 3, 6 (2007) (citation omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 414

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(2005) (“When a postconviction petition is untimely under state law, ‘that is the end of the

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matter’ for purposes of § 2244(d)(2).” (brackets omitted)); Lakey v. Hickman, 633 F.3d

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782, 785-86 (9th Cir. 2011) (“Because Lakey’s untimely [state] petition must be treated as

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improperly filed, or as though it never existed, for purposes of section 2244(d), the

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pendency of that petition did not toll the limitations period.” (citations omitted)).

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Ibrahim concedes that the Court of Appeal found his state petition to be untimely,

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but argues that the California Supreme Court implicitly disagreed by not commenting on

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the timeliness issue. Ibrahim reads too much into this silence. When the California Supreme

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Court agrees with a lower appellate court’s timeliness determination, it may “simply issue[]

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a postcard denial without explanation or citation,” as it did here. See Curiel, 830 F.3d at

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871 (citation omitted); cf. Evans v. Chavis, 546 U.S. 189, 195, 197 (2006) (holding that a

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California Supreme Court summary denial “stating simply, ‘Petition for writ of habeas

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corpus . . . is DENIED,’” did not imply “that the [state habeas] filing was timely”) (citation

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omitted)).

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Instead, the en banc Ninth Circuit gives clear guidance on how to deal with such a
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summary order: “When more than one state court has adjudicated a claim, the federal court

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analyzes the last ‘reasoned’ state court decision.” Curiel, 830 F.3d at 869 (citation omitted).

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The last such decision here was the California Court of Appeal’s opinion. That court

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expressly deemed Ibrahim’s state petition untimely, which means that it was not “properly

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filed” for federal habeas purposes.

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Because the state courts have “clearly ruled” on the lateness of Ibrahim’s state

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habeas petition, that is “the end of the matter.” See Carey v. Saffold, 536 U.S. 214, 226

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(2002). Statutory tolling will not save Ibrahim’s federal habeas petition.

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B.

Equitable Tolling

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The statute of limitations is also “subject to equitable tolling in appropriate cases.”

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Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). Equitable tolling applies

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“only if [the petitioner] shows ‘(1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”

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Id. at 649 (citation omitted). The Ninth Circuit cautions that “equitable tolling is

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unavailable in most cases and is appropriate only if extraordinary circumstances beyond a

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prisoner’s control make it impossible to file a petition on time.” Mirando v. Castro, 292

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F.3d 1063, 1066 (9th Cir. 2002) (citations and quotation marks omitted). “[T]he threshold

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necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.”

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Id.

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Ibrahim argues that he is entitled to equitable tolling for three separate periods. Two

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of these cannot toll the statute of limitations because they ended before August 30, 2015,

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when that limitations period began to run. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir.

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2008) (“The first state habeas petition . . . . was denied before that [federal limitations]

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period had started to run, [so] it had no effect on the timeliness of the ultimate federal

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filing.”). And Ibrahim’s final purported span of equitable tolling—from August 22 to

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October 7, 2016, when his state habeas petition was pending in Superior Court—is too

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brief to aid his cause. His federal petition was filed 218 days after the one-year deadline,

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so the exclusion of this 47-day period would not make his petition timely.
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CONCLUSION

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California’s courts ruled that Ibrahim’s state habeas petitions were untimely. So,

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those petitions did not toll the federal filing deadline, and his federal habeas application is

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late. Thus, this Court recommends that the warden’s motion to dismiss be granted and that

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the first amended petition be dismissed with prejudice.

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The parties have 14 days from service of this report to file any objections to it. See

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28 U.S.C. § 636(b)(1). The party receiving an objection has 14 days to file any response.

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See Fed. R. Civ. P. 72(b)(2). The parties are advised that failing to file objections within

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the specified time may waive the right to raise those objections on appeal. See Martinez v.

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Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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Dated: January 25, 2018

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