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Delander v. Hubbard

July 1, 2008

STEVEN WILLIAM DELANDER, PETITIONER,
v.
SUZAN L. HUBBARD, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) DECLINING TO ADOPT THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (2) DENYING RESPONDENT'S MOTION TO DISMISS [DOC. NO. 6];

On August 28, 2007, Steven William Delander ("Petitioner"), a state prisoner proceeding with counsel, filed a Petition for Writ of Habeus Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in San Diego Superior Court, Case No. SDC-170832. [Doc. No. 1.] Petitioner alleged ineffective assistance of counsel, improper sentencing enhancements and cumulative error. (Id.) On November 27, 2007, Respondent filed a Motion to Dismiss the Petition as procedurally time-barred pursuant to 28 U.S.C. § 2244(d). [Doc. No. 6.] On December 28, 2007, Petitioner filed an Opposition to Respondent's Motion to Dismiss. [Doc. No. 7.] Before the Court is Magistrate Judge Anthony J. Battaglia's Report and Recommendation ("R&R") recommending that the Court grant the Respondent's Motion to Dismiss the Petition as procedurally time barred. [Doc. No. 8.] On February 29, 2008, Petitioner filed an Opposition to the R&R. Petitioner contends that he is entitled to equitable tolling and as a result the Petition is timely. For the reasons set forth below, this Court DECLINES TO ADOPT the R&R and DENIES Respondent's Motion to Dismiss.

Procedural Background

Conviction and Sentence On March 3, 2003, Petitioner was convicted by a jury of carjacking, assault with a semi-automatic weapon, and possession of a firearm by a felon (Cal. Penal Code §§ 215, 245(b), 12021). (Pet. at 3.) On March 24, 2003, the trial court, following a bench trial on prior convictions, found that Petitioner had three prior convictions with a prison sentence, two prior serious felonies and two prior strikes. (Id. at 4.) On April 30, 2003, Petitioner was sentenced to serve a term of 47 years to life in state prison (26 years to life for carjacking with two prior strikes, 10 years for two prior serious felonies, 10 years for personally using a firearm, and one year for a prior prison term). (Id. at 3; Memo. of Points & Authorities in Support of Pet. at 4.)

Direct Appeal

Petitioner, through appointed counsel, timely filed a direct appeal with the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment 3.) However, although Petitioner's appointed counsel filed a brief laying out the relevant evidence in the Superior Court, he did not raise any appealable issues. (Id.) Therefore, Petitioner filed his own supplemental brief and requested the appointment of new counsel. (Lodgment 4; Pet. at 4.) On December 11, 2003, the Court of Appeal affirmed the conviction, finding that the Petitioner's petition raised no arguable appellate issue. (Id.)

Petitioner alleges that he did not receive notice of the Court of Appeal decision until July 21, 2004. As evidence of this, the Petitioner submitted an inquiry letter sent to the Court of Appeal on April 7, 2004. (Obj. to R&R, Exhibit A.) The California courts acknowledged that the Petitioner was trying to determine why his appeal had not yet been resolved. (Obj. to R&R at 3.) Since he was unaware of the December 11, 2003 decision, the Petitioner filed a pro se habeas petition on June 7, 2004, requesting the appointment of new counsel for his direct appeal.

(Pet. at 5; Lodgment 5.) On June 22, 2004, the Court of Appeal denied the petition stating that the request had already been denied in the December 11, 2003, direct appeal decision. (Lodgment 6.)

On June 30, 2004, Petitioner file the same petition for new counsel in the California Supreme Court. (Lodgment 11.) On July 20, 2005, the California Supreme Court denied the petition without comment. (Lodgment 13.)

The filing of the state court petition for new counsel is irrelevant to the present inquiry regarding the timeliness and tolling, because the petition did not collaterally attack the merits and the statute of limitations was already tolling due to the May 25, 2004 habeas petition discussed below.

State Court Habeas Petitions

Following his unsuccessful direct appeal, the Petitioner filed numerous state court habeas petitions. On May 25, 2004, the Petitioner, proceeding pro se, filed a petition for a writ of habeas corpus in the California Superior Court, challenging his sentence and conviction on the following grounds: (1) ineffective assistance of counsel; (2) jury instruction error; (3) improper use of plea agreement; (4) prosecutorial misconduct; (5) use of improperly obtained plea bargain as a strike; (6) his bench trial on prior convictions violated his right of due process; (7) sentencing enhancement error; (8) improper probation revocation in prior case; (9) due process violation concerning jury instructions; and (10) civil rights violations. (Lodgment 7 at 3.a-4.a.) On July 21, 2004, the California Superior Court denied the petition. (Lodgment 8.)

On July 14, 2004, the Petitioner filed a writ of habeas corpus arguing the same grounds in the California Court of Appeal, Fourth District, Division One. (Lodgment 19.) On August 16, 2004, the Court of Appeal denied the petition. (Lodgment 10.) On September 4, 2004, Petitioner filed the same petition for writ of habeas corpus in the California Supreme Court as an amended petition to the June 30, 2004, Supreme Court petition requesting new appointed counsel (See section B, above). (Lodgment 12.) On July 20, 2005, the Supreme Court denied the petition without comment. (Lodgment 13.)

Prior to the California Supreme Court denial, on September 29, 2004, Petitioner filed another petition attempting to provide further documentation for his Supreme Court petition. However, the California Supreme Court treated it as a new petition and denied the petition on August 24, 2005, with a reference to In re Clark, 5 Cal.4th 750 (1993) (holding that absent justification, successive or untimely petitions will be summarily denied); and In re Miller, 17 Cal.2d 734 (1941) (holding that successive petitions will be denied absent a change in facts or law). (Lodgment 15.) On February 10, 2005, Petitioner made another attempt to amend his pending California Supreme Court petition. He argued that his trail counsel was ineffective for failing to present a mental health defense and that there was insufficient evidence to support a finding that a prior conviction qualified as a serious felony or as a strike. (Lodgment 20.) The California Supreme Court again treated the Petitioner's attempted amendment as a new petition and denied the petition on July 20, 2005, with reference to In re Clark, 5 Cal.4th 750 (1993) (holding that absent justification, successive or untimely petitions will be summarily denied); In re Lindley, 29 Cal.2d 709 (1947) (holding that habeas corpus cannot review the merits of an insanity defense); In re Dixon, 41 Cal.2d 756 (1953) (holding that habeas corpus is not a substitute for an appeal); In re Swain, 34 Cal.2d 300, 304 (1949) (holding that petitioner must allege particular facts); and People v. Duvall, 9 Cal.4th 464, 474 (1995) (holding petitioner must state facts with particularity and provide documentary evidence). (Lodgment 21.) Since these two petitions were denied on the basis of timeliness they are not relevant to the timeliness inquiry of this Petition because they cannot be used to toll the limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005) (holding that if a petition is considered untimely the time under consideration and the time between periods of review cannot toll the statute of limitations).

On September 18, 2004, while the May 25, 2004 state court habeas petition was pending, Petitioner filed another petition challenging the use of a sentence enhancement. (Lodgment 16.) On November 23, 2004, the Superior Court denied the petition, finding it to be an improper successive petition. On December 4, 2004, the Petitioner filed the same petition in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment 18.) On January 26, 2005, the Court of Appeal denied the petition as an improper successive petition and on the merits. (Lodgment 19.) Since these petitions were pending during the period of Petitioner's first collateral attack, these petitions are also irrelevant to the present inquiry because the time during this period was already tolling.

On August 10, 2005,*fn1 Petitioner filed another petition for a writ of habeas corpus in the California Superior Court, arguing that: (1) due process right to fair trial was violated because he was precluded from raising psychotic disorder defense and his counsel failed to investigate and present evidence on mental disorder issue; (2) improper sentencing enhancement; and (3) cumulative errors, including ineffective assistance of counsel, violated due process. (Lodgment 22.) On October 6, 2005, the Superior Court denied the petition on the merits and as an improper successive petition. (Lodgment 23.)

On October 28, 2005, Petitioner filed a petition for a writ of habeas corpus arguing the same grounds in the California Court of Appeal, Fourth District, Division One. (Lodgment 24.) On May 26, 2006, the Court of Appeal denied the petition. (Lodgment 26.)

On June 9, 2006, Petitioner filed the same petition for a writ of habeas corpus in the California Supreme Court. (Lodgment 27.) On January 24, 2007, the Supreme Court denied the petition with citations to In re Clark, 5 Cal. 4th 750 (1993) (holding that absent justification, successive or untimely petitions will be summarily denied); In re Miller, 17 Cal.2d 734 (1941) (holding that successive petitions will be denied absent a change in facts or law; In re Lindley, 29 Cal.2d 709 (1947) (holding that habeas ...


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