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Diaz v. Knowles

January 7, 2009

RANDOLPH M. DIAZ, PETITIONER,
v.
MICHAEL KNOWLES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his amended petition, petitioner focuses on his claim to have pled "nolo contendere" to a charge of assault with a deadly weapon, under Cal. Penal Code § 245(a)(1), arguing that this offense was improperly designated a prior conviction to enhance his current sentence under the "three strikes law." Amended Petition (AP), p. 2.*fn1 The record shows that petitioner was convicted by a jury in 2001, in El Dorado County Superior Court, of multiple sexual offenses, including one count of forcible rape (Cal. Pen. Code § 261(a)(2)), one count of sexual battery (Cal. Pen. Code § 243.4(a)), one count of forcible oral copulation (Cal. Pen. Code § 288a(c)(2)), one count of unlawful sexual penetration with a minor under 18 years old (Cal. Pen. Code § 289(h)), one count of oral copulation with a minor under 18 (Cal. Pen. Code § 288a(b)(1)), and unlawful sexual intercourse with a minor more than three years younger than the perpetrator (Cal. Pen. Code § 261.5(c)). Motion to Dismiss (MTD), p. 2; respondent's Lodged Document (Lod. Doc.) 1, p. 1. In addition, petitioner, under the three strikes law (Cal. Pen. Code §§ 667(b) - (I), 1170.12), was found by the trial court to have suffered a prior serious or violent felony conviction. Lod. Doc. 1, pp. 1-2. Petitioner was sentenced, on 5/18/01, to a state prison term of fifty-six years to life. Lod. Doc. 1, pp. 1-2 & Lod. Doc. 2, pp. 2-3.

Motion to Dismiss

Pending before the court is respondent's motion to dismiss the petition on the ground that petitioner failed to file the petition timely. The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Following the imposition of his sentence on 5/18/01, petitioner filed an appeal to the Third District Court of Appeal on 1/16/02, which affirmed the judgment on 10/17/02 (with a modification of the restitution fine). MTD, p. 2; Lod. Docs. 1 & 2. Petitioner then filed a petition for review in the California Supreme Court on 11/21/02 (or 11/22/02), which was denied on 1/15/03. MTD, p. 2; Lod. Docs. 3 & 4. The record demonstrates that petitioner's conviction became final on 4/15/03, ninety days after the state supreme court denied petitioner's petition for review on direct appeal. See Cal. Rules of Court, Rule 8.308(a) (former Rule 31); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("holding] that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition.") The statute of limitations began to run the next day, on 4/16/03. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until 4/15/04, to file a timely federal petition, absent applicable tolling.

28 U.S.C. § 2244(d)(2) provides that 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 section. However, as respondent notes (MTD, p. 4), the filing of a state collateral action following expiration AEDPA limitations period cannot revive the limitations period or toll it under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001).

This court applies the mailbox rule*fn2 in dating the filing of the two pro se state post-conviction habeas challenges. The first state court petition was filed in El Dorado County Superior Court on 10/20/05, and denied on 1/11/06. Lod. Docs. 5 & 6. Petitioner filed a petition for review of a habeas petition in the California Supreme Court on 8/23/06, which was denied on 2/28/07. AP, p. 17; Lod. Docs. 7 & 8. Plainly, petitioner did not commence his habeas filings in state court (on 10/20/05) until long after the AEDPA limitations period had expired (on 4/15/04), thus petitioner is not entitled to any tolling under § 2244(d)(2). Although this matter proceeds upon an amended petition, filed on 3/14/08, the court dates the filing of this matter from the filing date of the original petition, pursuant to the mailbox rule, rendering it filed as of 2/20/08 (notwithstanding the court docket filing date of 2/22/08).

Petitioner argues that because the state habeas petitions that he brought were not deemed untimely, respondent should not be permitted to challenge the timeliness of the instant petition. Opposition (Opp.), p. 2. He concedes that he was mistaken in starting over at the state court level by way of habeas applications and not proceeding to federal court after the denial by the state supreme court of his petition for review on his direct appeal. Id., at 1. He argues that he made "an honest effort" to follow court rules but is not an attorney. Id. Petitioner also contends that his claims are not subject to AEDPA's timeliness requirements because a sentencing error can be raised at any time, and without objections having been raised in trial court, because such a question goes to the jurisdiction of the court. Id., citing People v. Serrato, 9 Cal.3d 753, 763, 109 Cal. Rptr. 65 (1973) (trial court may not modify verdict and convict defendant on an uncharged crime), disapproved on other grounds in People v. Fosselman, 33 Cal. 3d 572, 581 n. 1; and People v. Neal, 19 Cal.App.4th 1114, 1118, 1120 (1993) (although sentencing judge must state reasons for sentencing choice in imposing consecutive sentences in state court, failure by defense counsel to interpose objections at sentencing for failure to do so precludes issue being ...


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