The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION; AND ORDER RE: DISCOVERY
Petitioner, a prisoner proceeding pro se, filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). This matter was referred to Magistrate Judge William McCurine for report and recommendation pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d). Respondent moved to dismiss, and supported their motion with lodgments. On November 28, 2007, Magistrate Judge McCurine issued his report and recommendation (the "R&R") finding Petitioner had waited over one year after his state conviction became final to file his first state habeas petition. The R&R therefore concluded the Petition was barred under the Antiterrorism and Effective Death Penalty Act's one-year limitations period. See 28 U.S.C. § 2244(d)(1). The R&R therefore recommended denying the Petition with prejudice. The R&R notified Petitioner of his right to object, and cautioned him that failure to object within the time permitted might waive his appellate rights. (R&R at 20:1--5.)
Petitioner filed objections to the R&R ("Objections"), which the Court has reviewed. Petitioner does not dispute the R&R's conclusion that his conviction became final on September 14, 2004 and the one-year limitations period therefore began to run on September 15, 2004. (R&R at 4:13--18.) The R&R also found Petitioner filed his first habeas petition in California state court on October 14, 2005, well over a year later. (Id. at 18--19.) The R&R also found he filed a second petition (the "Disputed Petition") in state court on December 12, 2005. (Id. at 21--22.) Although Petitioner's objections are lengthy, his principal argument is that the Disputed Petition was actually his first petition, and that he delivered it to a correctional officer for mailing on August 30, 2005. Secondarily, he argues he is entitled to equitable tolling, because of general delays caused by the prison mailing system. Except for certain pages in Lodgment 7, Petitioner does not dispute the authenticity of any of the lodgments, nor did he object to Judge McCurine's reliance on them.*fn1
If the R&R is correct, the Petition is time-barred under the limitations period set forth in § 2244(d)(1). If, however, Petitioner delivered the Disputed Petition to a prison official for mailing to the state court on August 30, 2005, as he argues, he is entitled to tolling from that date. See § 2244(d)(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."); Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (holding that a prisoner's federal or state habeas petition is deemed filed at the time he delivers it to the prison authorities for forwarding to the court clerk) (citation omitted). If Petitioner is entitled to tolling, the Petition would be timely under § 2244(d)(1).
The parties do agree the Disputed petition was dated August 30, 2005. Initially, the burden falls on Respondent to show this was not the true mailing date. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (per curiam) ("Under the mailbox rule, the burden is on prison authorities to prove the date a prisoner delivered his documents to be mailed. Absent evidence to the contrary in the form of prison logs or other records, [the court] will assume that [petitioner's] motion was delivered to prison authorities the day he signed it . . . .") (citation omitted). In this case, Respondent has submitted evidence in the form of mail logs, declarations, and other documents, which the R&R discusses.
Unfortunately for Petitioner, the state courts made a finding in this regard. In ruling on the Disputed Petition, the Superior Court found it to be a second petition, and relied on this finding in denying the Disputed Petition. The Court of Appeal relied on the Superior Court's finding to reach the same conclusion.
Under § 2254(e)(1), findings of fact by state courts are presumed correct and can only be set aside on clear and convincing evidence.*fn2 Petitioner points to two pages of the mail log (Obj. to R&R, Ex. A; Resp.'s Lodgment 19 at 1, 15), indicating two pieces of mail were sent by him to someone in the District Attorney's office and to the Superior Court on September 2, 2005. In addition, his Objections, which he submitted under penalty of perjury, offer his own representations regarding when he mailed the Disputed Petition. This evidence favors Petitioner because it shows he did mail two items around the time he said he did to the Superior Court and the District Attorney's office, respectively.
Petitioner's state habeas petition filed October 14, 2005 mentions a habeas petition filed August 30, 2005, and purports to amend it. (Lodgment 5 (Notice and Notice of Motion amending habeas petition, dated Oct. 5, 2005) at 1:20--22 ("Petitioner is aware that a prior petition for writ of habeas corpus was filed into court August 30, 2005 . . . .")) In two documents filed with the Superior Court, both dated October 30, 2005 and file-stamped November 8, Petitioner again says he mailed his petition on August 30. (Lodgment 7 at 154--55, 158--59.) While not conclusive, these three documents favor his position. The Superior Court, however, said it had received no such petition (Lodgment 6 at 2:4--5), and Petitioner never mentioned it in subsequent petitions filed with the Court of Appeals or Supreme Court. (See Lodgments 9 (state Court of Appeal petition), 11 (state Supreme Court petition).) Bearing in mind the Superior Court's decision, and the Court of Appeal's decision denying the Disputed Petition as a successive petition, Petitioner had an incentive to explain to the Supreme Court why the Disputed Petition was actually his first petition.
The same mail log also shows Petitioner mailed two items, to the same attorney in the District Attorney's office and to the same division of the Superior Court again on December 8, 2005. (Lodgment 13 at 17, 20). These entries are annotated to show the material is dated August 30, 2005. (Id.) Among the lodgments is a photocopy of the envelope Petitioner mailed the Disputed Petition in; a copy of this is also included as Attachment 1 to Respondent's motion to dismiss and as Exhibits 1 and 2 to Respondent's reply to the opposition to the motion to dismiss. Petitioner accepts this as genuine and relies on it in his Objections.
The face of this envelope bears two postage labels bearing the date December 8, 2005. The return address gives Petitioner's location as 1-4-124-Low, which Petitioner says was his location on August 30 but not on December 8. (Obj. at 16:11--20.) He argues this would have been corrected if it were inaccurate. The envelope is addressed to "District Attorney Ms. Shess, South Bay Superior Court(s)." This envelope contained the Disputed Petition, which the Superior Court denied on February 23, 2006. (Lodgment 8.) On the reverse appear the date "8/30/05" and what purports to be the signature of Officer David Villalva, who was responsible for accepting prisoners' mail. (Reply to Opp'n to Mot. to Dismiss, Ex. 2.) Respondent submits the declaration of Officer Villalva, who states the signature is not his nor does he sign prisoner mail in this fashion. (Id., Ex. 3.) Officer Villalva's signature on his declaration and the signature on the envelope are noticeably different, as are the handwritten numbers. (Id., Ex. 2.)
Petitioner flatly denies giving the Disputed Petition, or a copy of it, to Officer Villalva for mailing in December, 2005. (Obj. at 6:26--28 (". . . Petitioner did not mail these documents on December 8, 2005; he mailed these documents on August 30, 2005.") Rather, his position is that he submitted only one copy of the Disputed Petition on August 30, but for reasons beyond his control or knowledge the mailing was delayed until December. This is a substantial assertion, because the Disputed Petition includes documents dated after August 30, which Petitioner explains by stating these documents were from an entirely different filing but were deliberately misnumbered so as to mislead the Court. (Obj. at 3:7--14.) These newer documents, if they were included with the Disputed Petition, would show it the Disputed Petition was not delivered to Officer Villalva for mailing on August 30.
If Petitioner mailed the first copy of his Disputed Petition on August 30 and a replacement copy in December after learning it had not been received, it might explain a great deal. Under this scenario, Petitioner's filing would have been complete on August 30, 2005 when he handed his petition to Officer Villalva for mailing to the court. For unknown reasons, neither the Superior Court's copy nor the District Attorney's copy ever arrived, but whatever the reason, the limitations period would have been tolled as of August 30. This scenario is not possible under either party's version of the facts, however.
Given the evidence as it now exists, one possible conclusion is that Petitioner actually gave the Disputed Petition to Officer Villalva for mailing on August 30, 2005, but it was held and not mailed until December 8, 2005. Two entries for each piece of mail might have been generated for each piece of mail - one on September 2, and another on December 8. The December 8 notations "T/W 8/30/05," rather than standing for "typewritten" and "backdated to August 30, 2005" as Respondent argues, would actually stand for "trust withdrawal dated August 30, 2005." Under this scenario, the post-August 30 documents attached to the Disputed Motion might be explained as a recordkeeping accident by the state court.
A second possible conclusion is that the mail log entries for September 2, 2005 reflect something else besides the Disputed Petition being mailed, perhaps something the District Attorney and Superior Court would have taken no notice of and discarded. Petitioner might have done this by accident, only realizing his mistake in December, when he discovered his unmailed petition. Petitioner also might have done this by design, as a way of buying himself more time to submit his petition. Either he or an accomplice then forged Officer Villalva's signature on the ...