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WHITE v. PLILER

United States District Court, Northern District of California


May 7, 2003

GRANT ROSE WHITE, PETITIONER,
v.
CHERYL K. PLILER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

The petition is dismissed because it was not timely filed.

IT IS SO ORDERED AND ADJUDGED.

ORDER OF DISMISSAL

INTRODUCTION

Grant Rose White, a California prisoner at the California State Prison — Sacramento, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1996 conviction. This matter is now before the court for consideration of respondent's motion to dismiss the petition as untimely. The court finds that the petition was not filed by the deadline in 28 U.S.C. § 2244(d) and therefore will dismiss the petition as untimely.

BACKGROUND

Grant Rose White was convicted at a jury trial in Santa Clara County Superior Court of felony possession of cocaine base for sale and misdemeanor possession of 25.8 grams or less of marijuana. See Cal. Health & Safety Code §§ 11351.5, 11357(b). He also was found to have suffered four prior convictions. See Cal. Penal Code § 667. On June 20, 1996, White was sentenced to a term of 25 years to life in prison.

White appealed. His conviction was affirmed by the California Court of Appeal on October 24, 1997 and his petition for review was denied by the California Supreme Court on February 18, 1998.

White filed a federal petition for writ of habeas corpus on December 28, 1998. See White v. Plifer, C 98-4914 SI. The petition was dismissed on May 16, 2000 because White had not exhausted his state court remedies before filing his federal petition.

White returned to state court and filed a petition for writ of habeas corpus on July 21, 2000. The state habeas petition was denied on November 29, 2000.

The current federal habeas petition was mailed to the court in an envelope postmarked December 1, 2002 and was stamped "filed" in this court on December 12, 2002.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The ordinary starting date of the limitations period is the date on which the judgment becomes final after the conclusion of direct review or the time passed for seeking direct review. See 28 U.S.C. § 2244(d)(1).

White's petition for review was denied by the California Supreme Court on February 18, 1998, and his conviction became final ninety days thereafter, on May 18, 1998, when the time for seeking a petition for writ of certiorari expired. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review). Absent any tolling, the federal petition had to be filed by May 19, 1999, to be timely. The federal petition was not deemed filed until December 1, 2002, about 3-1/2 years after the deadline. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001) (pro se prisoner's federal habeas petition is deemed filed when prisoner delivers petition to prison authorities for mailing), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002).

The one-year statute of limitations will be tolled under § 2244(d)(2) for 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." 28 U.S.C. § 2244(d)(2). White receives no statutory tolling for his state habeas petition because it was not filed until many months after 12 the one-year period had expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if the state petition was timely filed).

White also does not receive any statutory tolling for, or relation back to, the first federal petition he filed because that petition was properly dismissed for failure to exhaust. See Dils v. Small, 260 F.3d 984, 986-87 (9th Cir. 2001) (federal petition does not relate back to earlier petition whose "life . . . has come to an end;" earlier petition had been properly dismissed for failure to exhaust, appeal from the dismissal had been dismissed, and mandate had been spread). The first federal petition was a completely unexhausted petition that could not have been stayed or otherwise allowed to go forward in federal court. Cf. Ford v. Hubbard, 305 F.3d 875, 887 (9th Cir. 2002) (relating back second petition where earlier mixed petition was erroneously dismissed). White receives no statutory tolling.

The final step is to determine whether equitable tolling applies. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control which prevented him from timely filing the petition. See, e.g., Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time), cert. denied, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999).

Here the question is whether equitable tolling should be allowed for the pendency of White's first federal petition because there was a delay in resolving it. The Ninth Circuit has not decided whether equitable tolling is warranted during the pendency of a completely unexhausted federal habeas petition subject to routine processing delays in the district court, a question left open in Duncan v. Walker, 121 S.Ct. 2120 (2001) (holding that statutory tolling is not available in such circumstances). Fail v. Hubbard, 315 F.3d 1059, 1061-62 (9th Cir. 2002). When there is a delay in the district court caused by extraordinary circumstances beyond the petitioner's control, equitable tolling may be warranted for the period of the delay. See Corjasso v. Ayers, 278 F.3d 874, 878-79 (9th Cir. 2002) (finding equitable tolling warranted where delay occurred because district court erroneously refused to accept petition for filing because of technical deficiency in cover sheet and lost body of petition by the time petitioner sent in corrected cover sheet). Conversely, when delay in the district court was caused by circumstances within the petitioner's control, equitable tolling is not warranted. See Fail, 315 F.3d at 1061-62; Corjasso, 278 F.3d at 879.

Even granting White some equitable tolling for the delay in his first federal petition would not make his current federal petition timely. White is not entitled to equitable tolling for the entire time his first federal petition was pending because the filing of it was his choice and was not an extraordinary circumstance beyond his control. At most, he should be entitled to tolling during the 8-1/2 months between the filing of his traverse and the court's dismissal of the action as unexhausted. But his entitlement to even that amount of tolling is dubious because White could have avoided the delay by voluntarily dismissing the federal petition and returning to state court as soon as he was put on notice that there was an exhaustion problem with his first federal petition. He was put on notice on July 30, 1999, when respondent filed his opposition brief raising the failure-to-exhaust defense. See White v. Plifer, C 98-4914 SI, docket #8 (Respondent's memorandum of points and authorities in opposition to petition for writ of habeas corpus, pp. 5-6.) Although White asserted in response that he had exhausted, he very likely knew that he had not done so; his state appellate briefs had not mentioned the federal constitutional rights he was asserting. Instead of dismissing and returning to state court, he chose to wait for the court's decision, which was not issued until 8-1/2 months later. Even if the 8-1/2 month delay warranted equitable tolling, it would not save White. When White filed his traverse, and the alleged delay began, White's one-year limitation period had already ended a couple of months earlier, on May 18, 1999. Had the court dismissed the petition as untimely the day it was ready for decision (i.e., on August 31, 1999, when White filed his traverse), there would have been no delay and White would not have been entitled to any equitable tolling. Equitable tolling will be used to prevent a petitioner from being disadvantaged by an event beyond his control, but will not be used to give him an advantage he would not have had if the event beyond his control had not occurred. The equitable tolling doctrine could not be used to restart White's already expired limitations period.

Finally, even assuming arguendo that White was entitled to equitable tolling for the entire time his first federal petition was pending (i.e., from December 29, 1998 through May 16, 2000) and for the entire time his state habeas petition was pending (i.e., from July 21, 2000 through November 29, 2000), his current petition would not be timely. The current federal petition was filed more than 24 months too late. (This period is arrived at by starting with the 56-month gap between the conclusion of direct review and the filing of the current petition, then deducting the months during which a federal or state habeas petition was pending and deducting the 12-22 month limitation period). The petition must be dismissed because it was not timely filed under 28 U.S.C. § 2244(d)(I).

CONCLUSION

For the foregoing reasons, respondent's motion to dismiss is GRANTED. (Docket #7.) The petition is dismissed because it was not timely filed. The clerk shall close the file.

IT IS SO ORDERED.

20030507

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