Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Edsall v. Marshall

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 28, 2009

JOHN A. H. EDSALL, SR., PETITIONER,
v.
J. MARSHALL, WARDEN, ET AL., RESPONDENTS.

ORDER*fn1

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondents' motion to dismiss this action as barred by the statute of limitations.*fn2

Section 2244(d)(1) of Title 28 of the United States Code provides: 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.

28 U.S.C. § 2244(d)(1). Section 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" the limitations period. 28 U.S.C. § 2244(d)(2). "The time that an application for state post-conviction review is 'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Evans v. Chavis, 546 U.S. 189, 191 (2006)(emphasis in original).

In California, "a state prisoner may seek review of an adverse lower court decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a 'reasonable time.' " . . . . Thus, in California, "[a]s long as the prisoner filed a petition for appellate review within a 'reasonable time,' he could count as 'pending' (and add to the one-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court."

Waldrip v. Hall, 548 F.3d 729, 734 (quoting Evans, at 192-93 and 193). "An unexplained delay of six months between the denial by one California state court and a new filing in a higher California court" is "too long to permit tolling of the federal limitations period on the ground that state court proceedings were 'pending.'" Id. at 735.

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. On August 29, 2000, petitioner was sentenced to seventeen years in prison following his conviction on charges of first degree burglary and receiving stolen property.

2. On November 28, 2001, petitioner's conviction was affirmed on direct appeal by the California Court of Appeal for the Third Appellate District.

3. On February 13, 2002, the California Supreme Court denied petitioner's petition for review.

4. On May 6, 2002, a petition signed by petitioner on April 9, 2002 was filed a petition for writ of habeas corpus in the Sacramento County Superior Court. See Lodged Document 7, lodged November 18, 2008.*fn3 That petition contained the claims identified as Claims I, II, III, V-A, VII-A, VII-B, VIII and IX in petitioner's federal habeas corpus petition.*fn4

Id. On May 28, 2002, the Sacramento County Superior Court denied the petition.

5. On August 12, 2002, petitioner filed a petition for writ of habeas corpus in the California Court of Appeals for the Third Appellate District. That petition contained the claims identified as Claims I, II, III, V-A, VII-A, VII-B, VIII, IX and X of petitioner's federal habeas corpus petition. See Lodged Document 11.

6. On May 15, 2003, the California Court of Appeal for the Third Appellate District issued an order to show cause returnable in the Sacramento County Superior Court. See Lodged Document 12.

7. On June 18, 2003, the Sacramento County Superior Court ordered the matter filed as a new case in that court. See Lodged Document 13.

8. On October 4 and 5, 2004, the Sacramento County Superior Court held an evidentiary hearing on the petition filed in August 2002 in the state court of appeal. At the conclusion of the hearing, the court made an oral ruling denying the petition. See Lodged Document 14 at 252-254.

9. On March 16, 2005, petitioner delivered to prison officials for mailing a petition for writ of habeas corpus directed to the Sacramento County Superior Court raising the claim raised as Claim XIV in the federal petition. See Lodged Document 16. The petition was filed in that court on March 24, 2005. Id. On April 28, 2005, the superior court denied the petition. See Lodged Document 17.

10. On October 19, 2005, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. See Lodged Document 18. That petition contained all of the claims raised in petitioner's August 2002 habeas corpus petition and the claims raised as Claims IV, V-B, VI, XI, XII, XIII, XIV, and XV of the federal petition. Id. By order filed November 23, 2005, the state court of appeal denied the petition due to petitioner's failure "either to provide this court with documents related to the October 4 and 5, 2004 hearing on his habeas petition in the superior court . . . or to explain why some or all of those documents are not reasonably available to him." Lodged Document 19.

11. On October 7, 2006, petitioner delivered to prison officials for mailing a supplemental petition for writ of habeas corpus with exhibits attached. See Lodged Document 20. The petition was filed in the state court of appeal on October 11, 2006 and denied on November 16, 2006. See Lodged Documents 20 and 21.

12. On January 24, 2007, petitioner delivered to prison officials for mailing a petition for writ of habeas corpus directed to the California Supreme Court. See Lodged Document 22. The petition was filed in the state supreme court on January 29, 2007. Although it appears from the docket in the California Supreme Court that petitioner submitted exhibits with that petition, see Lodged Document 23, the exhibits are not part of the record before this court. On August 8, 2007, the California Supreme Court denied that petition.

13. In February 2007, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court raising the issues presented by Claim XVII of the federal petition. See Lodged Document 24. On April 19, 2007, the superior court denied the petition. See Lodged Document 25.

14. In March 2007, petitioner filed another petition for writ of habeas corpus in the Sacramento Superior Court raising the issues presented by Claim XIV of the federal petition. See Lodged Document 26. Petitioner sought collateral review of that claim at each subsequent level of the state court system. See Lodged Documents 28-30. His final petition was denied by the California Supreme Court on April 16, 2008. See Lodged Document 31.

15. On or about May 26, 2008, petitioner filed the instant action.*fn5 Petitioner's conviction became final on or about May 14, 2002, ninety days after the California Supreme Court denied petitioner's petition for review. See Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999). The federal limitation period started to run the next day, on May 15, 2002. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

At the time the limitation period commenced, petitioner had a petition for writ of habeas corpus pending in the state superior court. That petition was denied on June 28, 2002, and petitioner filed a new petition in the state court of appeal approximately six weeks later. The latter petition was referred back to the superior court and denied on October 5, 2004, after an evidentiary hearing. The limitation period was during the pendency of these two petitions, as well as the interval between them. See Carey v. Saffold, 536 U.S. 214 (2002). Petitioner did not proceed to the California Supreme Court with these or any other claims until January 24, 2007*fn6 , more than twenty-seven months after the decision of the state superior court. The reason for that delay is unexplained. Accordingly, under the rule announced in Evans v. Chavis, supra, except as discussed below the limitation period was not tolled during the interval between October 5, 2004 and January 24, 2007.

The statute of limitations therefore commenced to run on October 6, 2004. It ran for one hundred sixty days, until March 16, 2005, when petitioner filed a new state habeas corpus petition. Within six months of the denial of that petition, petitioner filed another petition in the state court of appeal, which was denied on November 23, 2005. The limitation period was tolled from March 16, 2005 until November 23, 2005. Following the November 23, 2005 decision, petitioner did not file another state petition for more than ten months. Under the rule announced in Evans v. Chavis, supra, petitioner is not entitled to statutory tolling for any part of that ten month period.

On November 23, 2005, petitioner had two hundred five days remaining in the limitation period. The limitation period expired on or about June 16, 2006, before petitioner filed any further state habeas corpus petitions.*fn7 This action is therefore barred by the statute of limitations and respondents' motion to dismiss should be granted.

For all of the foregoing reasons, IT IS HEREBY ORDERED that:

1. Respondents' November 10, 2008 motion to dismiss is granted; and

2. This action is dismissed as barred by the statute of limitations.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.