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Cavins v. Hunter

February 11, 2009

JERRY RAY CAVINS, PETITIONER,
v.
MELVIN HUNTER, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a civil detainee proceeding in forma pauperis with an application for writ of habeas corpus under 28 U.S.C. § 2254. He raises three claims based on the Sixth Amendment, which are identified as claims 2, 5 and 6 in his second amended application filed December 29, 2005. Respondent has filed a motion to dismiss on statute of limitations grounds.

In claim 2, petitioner asserts his right to effective assistance of counsel was violated at proceedings resulting in his being re-committed to Atascadero State Hospital as a "Mentally Disordered Sex Offender" (MDSO) under California Welfare and Institutions Code § 6300, et seq., on July 18, 1997. In claim 5, petitioner asserts he was denied effective assistance of counsel because his counsel failed to inform him he could appeal the July 18, 1997 decision. In claim 6, petitioner asserts his Sixth Amendment rights were violated because the Superior Court of Glenn County failed to appoint petitioner counsel for periodic reviews of his re- commitment, which took place between November 15, 2000 and the time petitioner was released in August 2004. Respondents have filed a motion to dismiss in which they argue that this action is time-barred. A hearing was held concerning the motion on August 27, 2008.

Title 28 U.S.C. § 2244(d)(1) 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).

With respect to petitioner's second claim, in which he challenges his lack of representation at the re-commitment proceeding, the parties agree that the limitations period began to run under 28 U.S.C. § 2244(d)(1)(A) on September 17, 1997, the day after time ran for petitioner to appeal.*fn1 See Cal. Rule of Court 8.308. This action was not filed until April 28, 2003, and there does not appear to be any statutory basis for tolling the limitations period between September 17, 1997 and September 16, 1998.

Petitioner asserts he is entitled to equitable tolling of the limitations period between September 17, 1997 and December 4, 2004, the date this court appointed counsel for petitioner. "Equitable tolling" of the limitations period is appropriate when extraordinary circumstances beyond a habeas petitioner's control make it impossible for him to file on time. See, e.g., Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Petitioner seems to suggest he should benefit from equitable tolling because, during the time frame identified above, he did not have counsel to challenge the July 18, 1997 re-commitment. Petitioner does not point to anything suggesting petitioner had a right to counsel during that period of time or that he could not obtain counsel on his own. The fact that he did not have counsel is thus unextraordinary. Petitioner also appears to argue that his ignorance of the law should provide a basis for tolling. However, that argument had been explicitly rejected by the Ninth Circuit Court of Appeals. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

For the forgoing reasons, the court will recommend that petitioner's Sixth Amendment challenge to his July 18, 1997 re-commitment hearing, articulated in claim 2, be dismissed as time-barred.

With respect to petitioner's fifth claim, the limitations period also began to run under § 2244(d)(1)(A) on September 17, 1997 when petitioner's July 18, 1997 re-commitment became final.*fn2 Petitioner seeks equitable tolling based on his not having counsel or his ignorance of the law. Again, petitioner has not shown either of these facts entitle him to equitable tolling. Therefore, the court will recommended this claim also be dismissed as time-barred.

Petitioner's sixth claim, however, is not time-barred. It is not disputed for purposes of respondents' motion that petitioner was never told by the Superior Court of Glenn County that his re-commitment status was reviewed between November 15, 2000 and the time petitioner was released in August of 2004. It also is not disputed that petitioner did not learn those reviews occurred until May 10, 2005. Based on these facts, and the fact there is no reason to believe petitioner should have known the reviews were occurring, the limitations period under 28 U.S.C. ยง 2244(d)(1)(D) began to run on May ...


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