The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND GRANTING MOTION TO STAY AS MOOT Doc. Nos. 10 and 15
Petitioner Larry John Little, Jr. ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1, "Pet.") On June 27, 2008, the court issued an "Options Order," informing Petitioner certain claims in his petition were unexhausted and suggesting four suitable courses of action. (Doc. No. 5.) Petitioner chose to move to stay the federal proceeding while he returned to state court to exhaust his unexhausted claims. (Doc. No. 10.) Respondent submitted an Opposition to the motion (Doc. No. 12) and Petitioner filed a Reply (Doc. No. 14). On January 29, 2009, Magistrate Judge Peter C. Lewis issued a Report and Recommendations advising the court to deny Petitioner's motion. (Doc. No. 15, "R&R.") Petitioner filed objections to the R&R on March 19, 2009. (Doc. No. 18.) Upon review of all the relevant documents and applicable authorities, the court ADOPTS the Report and Recommendation AS MODIFIED HEREIN and GRANTS the motion to stay.
Petitioner was convicted by jury on May 3, 2000 for second degree murder and was sentenced to a custodial term of 18 years to life. (Pet. at 1.) The California Court of Appeal affirmed the judgment on October 10, 2001. (Pet., Exh. D.) Petitioner submitted a Petition for Review to the California Supreme Court, which was denied on December 19, 2001. (Doc. No. 19.)
Petitioner, acting in propia persona, initiated state court habeas proceedings in the superior court through a petition signed on December 10, 2001 and received by the court on December 27, 2002. (Lodg. 1; In re Little, No. D047468, 2008 WL 142832 at *3 (Cal. Ct. App. Jan. 16, 2008.) While Petitioner presented various constitutional claims, the court issued an order to show cause on only one: Petitioner's claim he was denied his constitutional right to effective assistance of counsel when trial counsel failed to investigate or raise a defense of imperfect self-defense based on post-traumatic stress syndrome ("PTSD"). (In re Little, 2008 WL 142832 at *3.) Petitioner was appointed counsel only for this issue and, following an evidentiary hearing, the court denied the petition. (Id.)
Petitioner subsequently filed a petition for writ of habeas corpus in the Court of Appeal, asserting denial of constitutional right to effective assistance of trial counsel for failure to investigate the PTSD defense (as described above), to investigate the facts of the case, to interview or subpoena various witnesses, to present certain state-of-mind evidence, to impeach key adverse witnesses, to request an involuntary manslaughter instruction, and to object to certain witness testimony. (Id. at *4 n. 4.) In addition, the petition included ineffective assistance of appellate counsel claims for counsel's failure to file a complete prior petition, to move to correct by the Court of Appeal regarding instructions to the jury, and to argue the trial court errors violated the Constitution. Finally, Petitioner argued he was denied due process when the trial court did not instruct the jury sua sponte to take his physical impairment into account when assessing reasonableness, in accordance with CALJIC No. 3.37. (Id. at *4, n. 3.) Once again, Petitioner was appointed counsel only with respect to the PTSD issue. On January 16, 2008, after receiving supplemental briefs and supporting evidence, the Court of Appeal issued a reasoned opinion concluding Petitioner's right to effective assistance of counsel had not been violated. (Id. at *20.) The court expressly declined to engage in any substantive discussion of Petitioner's other constitutional contentions and summarily denied those claims. (Id.)
On January 24, 2008, without informing Petitioner of the Court of Appeal's denial, Petitioner's counsel filed a petition for review in the California Supreme Court addressing only the PTSD issue for which she had been appointed. (Pet., Exh. H; Doc. No. 14, Exh. C.) Petitioner first learned his Court of Appeal writ had been denied and the remaining constitutional claims had not been submitted to the state supreme court when he received a letter from his appointed counsel sometime after January 23, 2008. (Doc. No. 14 at 5-6, Exh. B.) He attempted to supplement the pending petition as quickly as possible, but the intended supplement was rejected by the California Supreme Court on February 21, 2008. (Pet., Exh. H.) The pending petition itself was denied on March 12, 2008. (Lodg. 2.) Petitioner then prepared his federal habeas petition, which was sent June 7, 2008 and received by this court on June 12, 2008. (Pet. at 12.) Petitioner received notice of unexhausted claims through the court's "Options Order," filed his motion to stay, and then filed a second habeas petition in the state supreme court to effect exhaustion of the remaining claims. (Lodg. 3.) Petitioner's latest state petition, filed August 10, 2008, was denied by the California Supreme Court on February 11, 2009. (Doc. No. 18, Exh. B.)
II. Exhaustion of State Remedies
Petitioner presents eight claims in his federal petition. In claims 1-3, Petitioner alleges ineffective assistance of trial counsel based generally on a failure to investigate or present a mental illness defense. In claim 4, Petitioner raises an ineffective assistance of appellate counsel argument. Claims 5-8 allege violations of Petitioner's rights to due process and a fair trial based on purported instructional errors at trial. The Options Order concluded Petitioner had not raised the federal aspect of the instructional error claims nor his ineffective assistance of appellate counsel claim before the California Supreme Court. Petitioner concedes this assertion. Respondent contends Claim 3 is also unexhausted, but tables this argument for a potential future motion to dismiss. (Doc. No. 12 at 3 n.2.) Because the parties have not lodged a copy of Petitioner's first habeas petition to the California Supreme Court, the court is unable to address the issue at this time.*fn1
III. AEDPA Statute of Limitations
The R&R appears to have concluded, without argument by Respondent, that Petitioner's entire federal filing is time-barred by the applicable statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (R&R at 4.) Upon a review of the record, the court disagrees with this determination.
Pursuant to 28 U.S.C. § 2244(d)(1), a state prisoner seeking habeas relief must comply with a one-year statute of limitations. In Petitioner's case, the limitations period began to run from "the date on which the judgment became final by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on December 19, 2001 and that decision became final 90 days thereafter, on March 19, 2002.*fn2 See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding the AEDPA limitations period begins to run when the ninety-day period for filing a petition for writ of certiorari from the U.S. Supreme Court expires). Without tolling, the statute of limitations would have expired on March 19, 2003.
Petitioner is entitled to statutory tolling for the period during which a properly filed applicable for collateral review was pending. See 28 U.S.C. § 2244(d)(2). Petitioner filed his initial habeas petition in Superior Court on December 27, 2002 and his collateral review was completed in the state supreme court on March 12, 2008. Between the end of his direct review and the initiation of his collateral attack, at most 278 days of the limitations period elapsed.*fn3 Petitioner's federal petition was received June 12, 2008, but it appears he may be entitled to an earlier filing date based on the "prison mailbox rule." Houston v. Lack, 487 U.S. 266, 276 (1988); Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000), cert. granted, 534 U.S. 971 (2001)(holding the prison mailbox rule applies to prisoners filing habeas petitions in both federal and state courts). In his petition, signed under penalty of perjury, Petitioner asserts he mailed the petition to this court (or handed it to a corrections officer for that purpose) on June 7, 2008. Absent evidence to the contrary, the court adopts June 7, 2008 as the operative date for filing of the federal petition. Houston, 487 U.S. at 276 (holding a prisoner's notice of appeal is deemed "filed at the time [he] deliver[s] it to the prison authorities for forwarding to the court clerk"). The additional time elapsed between the end of Petitioner's collateral attack and his federal filing is 87 days. The sum total is exactly 365 days, or one year. Thus, even without equitable tolling, Petitioner's exhausted claims were timely filed.
In contrast, Petitioner exceeded the statute of limitations on his unexhausted claims by virtue of the additional 64-day delay between his June 7, 2008 federal filing and his second submission to the California Supreme Court on August 10, 2008.*fn4 For the previously unexhausted claims to survive, Petitioner must show he is entitled to equitable ...