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Dunckhurst v. Adams

April 28, 2009

STEPHEN C. DUNCKHURST, PETITIONER,
v.
DARREL G. ADAMS, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 18, 2008, the undersigned ordered respondent to file and serve a response to the petition. On September 11, 2008, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed a timely opposition to the motion and respondent has filed a reply. Petitioner has also filed an unauthorized response, styled as a "traverse" to respondent's reply, which the court has nonetheless considered in the interests of justice. See Local Rule 78-230(m).

BACKGROUND

In August 2005, a Shasta County Superior Court jury convicted petitioner of vehicle theft. Petitioner also pleaded guilty to the charge of possession of a deadly weapon by a prisoner. A number of sentencing enhancement allegations were also found to be true. On October 17, 2005, the Superior Court sentenced petitioner to an indeterminate term of thirty-three years to life in state prison. Petitioner did not appeal from the judgment of conviction. (Sec. Am. Pet. at 2; Resp't's Lodged Doc. 1.)

Petitioner did, however, file six state habeas petitions challenging the judgment. On October 10, 2006, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court which that court denied on November 29, 2006. On March 17, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which that court denied on May 3, 2007. On or about March 13, 2007, petitioner filed a second petition for writ of habeas corpus in the Shasta County Superior Court.*fn1

On May 2, 2007, the Superior Court denied the petition. On May 8, 2007, petitioner filed a second petition for writ of habeas corpus in the Court of Appeal for the Third Appellate District which that court denied on June 7, 2007. On May 28, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on October 10, 2007. Finally, on or about May 25, 2007, petitioner filed a third petition for writ of habeas corpus in the Shasta County Superior Court.*fn2 On October 25, 2007, the Superior Court denied the petition. (Resp't's Lodged Docs. 2-13.) On March 20, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus.*fn3 On July 3, 2008, petitioner filed his second amended petition.

RESPONDENT'S ARGUMENTS

Respondent has filed a motion to dismiss arguing that the pending federal habeas petition is time-barred. Specifically, respondent argues that petitioner did not appeal from his judgment of conviction entered on October 17, 2005, causing his conviction to become "final" on December 16, 2005, sixty days after the time for filing an appeal expired. Respondent argues that under AEDPA, the one-year statute of limitations period for filing a federal habeas petition began to run the following day, on December 17, 2005, and expired one year later on December 16, 2006. (Resp't's Mot. to Dismiss at 3.)

Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations. However, respondent argues that petitioner did not file his first state habeas petition in the Shasta County Superior Court until October 10, 2006, after 297 days of the statute of limitations had already elapsed. Respondent does not dispute that petitioner properly filed his first state habeas petition and is entitled to tolling for the period of time that petition was pending. However, respondent contends that petitioner is not entitled to tolling for the 108 days between the Shasta County Superior Court's denial of his first petition filed with that court and the filing of his habeas petition in the California Court of Appeal, because petitioner unreasonably delayed in filing his second petition. Respondent argues that without statutory tolling for these 108 days, a total of 405 days had elapsed, rendering his federal habeas petition untimely. (Resp't's Mot. to Dismiss at 4-6; Resp't's Reply at 2-9.)

In the alternative, respondent argues that even if the court awards petitioner tolling for the 108 days in between the Shasta County Superior Court's denial of his first petition filed with that court and his filing of his petition in the California Court of Appeal, petitioner's federal habeas petition is still untimely. In this regard, respondent argues that even if petitioner were entitled to statutory tolling for the entire time all of his state habeas petitions were pending, nearly 10 months of the statute of limitations had elapsed before petitioner filed his first state habeas petition in the Shasta County Superior Court and an additional six months elapsed after that same court denied his final state habeas petition but before this court received petitioner's federal habeas petition for filing on May 6, 2008. Respondent argues that, even under this "best case scenario," petitioner's federal habeas petition is time-barred. (Resp't's Reply at 9-10.)

PETITIONER'S ARGUMENTS

In opposition to respondent's motion to dismiss, petitioner argues that prison officials caused the 108-day delay in between the Shasta County Superior Court's denial of his first petition and his filing of his habeas petition in the California Court of Appeal. Specifically, petitioner argues that he was moved from High Desert State Prison to California State Prison, Corcoran on November 14, 2006. According to petitioner, prison policy allegedly allows prison officials to hold an inmate's property for up to six weeks. Petitioner argues that he did not receive his legal property until January 15, 2007. Moreover, petitioner contends that once he received his legal property, he had to submit numerous requests before he could access the law library. Petitioner notes that he could not make copies of transcripts and other documents without access to the library. Petitioner also argues that he has been housed in a security housing unit since November 9, 2006, where there is limited movement and rolling lockdowns. For these reasons, petitioner contends that he simply could not respond any earlier to the Shasta County Superior Court's denial of his first state habeas petition. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-2; Pet'r's Traverse at 1-7.)

In response to respondent's alternative argument that his federal habeas petition is untimely even if this court grants statutory tolling for the entire time his habeas petitions were pending before the state courts, petitioner argues that he had no idea what to do, how to do it, or where to file his petitions. He contends that his trial attorney failed to explain to him his right to file a direct appeal as well as his right to file a habeas corpus petition. Petitioner reiterates that he had limited access to the law library while incarcerated. (Pet'r's Traverse at 3-4 & 8.)

ANALYSIS

I. The AEDPA Statute of ...


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