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Khatkar v. Beard

United States District Court, E.D. California

August 6, 2009

JEFFREY BEARD, Respondent.


         Petitioner is a former state prisoner proceeding through counsel with this application for a writ of habeas corpus under 28 U.S.C. § 2254. By order filed March 31, 2016, this court granted respondent's motion to dismiss, dismissed this action as barred by the statute of limitations, and denied petitioner's request for a certificate of appealability (COA). ECF No. 31. Judgment was entered the same day. ECF No. 32. On April 28, 2016, petitioner filed a motion for reconsideration of the decision to grant the motion to dismiss and to deny a COA. ECF No. 33. On May 6, 2016, respondent filed a response to the motion. ECF No. 34.

         Petitioner's motion is properly construed as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). See American Ironworks & Erectors, Inc. v. North American Const. Corp., 248 F.3d 892, 899 (9th Cir. 2001).

The moving party under Rule 60(b) is entitled to relief from judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment. See Fed.R.Civ.P. 60(b).

Id. In relevant part, Local Rule 230(j) requires a party seeking reconsideration to show “what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon [the] prior motion, or what other grounds exist for the motion; and [ ] why the facts or circumstances were not shown at the time of the prior motion.” Local Rule 230(j) (E.D.Cal.).

         The court's decision to grant respondent's motion to dismiss was based in large part on the determination that petitioner had “not demonstrated he is entitled to tolling of the limitations period between May 10, 2012, when the Sutter County Superior Court denied his second state habeas petition, and March 25, 2013, when petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, a gap of 318 days.” ECF No. 31 at 9. Petitioner objects to this finding on the ground that respondent did not raise this argument in the motion to dismiss, instead only arguing it in the reply brief, and it was not the basis for the magistrate judge's recommendation that respondent's motion to dismiss be granted. ECF No. 33 at 5. Petitioner contends he did not have an opportunity to brief this issue. Id. He therefore seeks leave to present additional evidence and argument to show that he is entitled to gap tolling for this period, and asks the court to reconsider its decision in light of that argument and evidence. Id. In particular, petitioner seeks to present evidence that suggests the state court of appeal denied his petition on the merits, rather than as untimely, and that the state court of appeal had evidence that petitioner's impairments prevented him from filing a petition without assistance of counsel. Id. at 6-8; ECF Nos. 33-1, 33-2. Respondent does not oppose this request, instead resting its response to the motion on the briefing already filed, on the magistrate judge's findings and recommendations, and on this court's March 31, 2016 order. ECF No. 34 at 1-2.

         The court finds petitioner has made a sufficient showing as to why he did not previously present the court with the evidence now submitted with the motion for reconsideration to warrant consideration of that evidence. In particular, as set forth below, the issue of the timeliness of petitioner's state court of appeal petition was not raised in the motion to dismiss and therefore was not briefed in a way that required petitioner to present all evidence relevant to that question in his opposition, the sole brief he was authorized to file in connection with that motion. In particular, he did not have an opportunity to respond to arguments about the issue made by respondent in the reply brief. It is therefore proper for this court to consider that evidence and his arguments on this motion.

         In the motion to dismiss, respondent argued that the statute of limitations began to run on June 2, 2010 and expired on June 1, 2011, well before petitioner filed his first collateral attack in state court, and that petitioner was not entitled to a later start of the limitations period. ECF No. 12. In making the latter argument, respondent contended, inter alia, that even if petitioner's claims were “newly discovered” within the meaning of 28 U.S.C. § 2244(d)(1)(D), petitioner had not been diligent in presenting his claims and the assertion that petitioner's family had not been able to raise enough money to pay for counsel was not a sufficient justification for the delay. Id. at 13-14. Respondent's position was that the statute of limitations expired before petitioner made any collateral attack in state court, and respondent did not raise the alternative argument that even if petitioner's state court petitions had been timely petitioner was not entitled to gap tolling for the period from May 10, 2012 to March 25, 2013.

         In opposition to the motion, petitioner argued that the limitations period began to run on February 15, 2012, and that he was entitled to statutory and gap tolling from March 21, 2012 through October 23, 2013 because “none of his state petitions were denied on untimeliness grounds.” ECF No. 18 at 7. In the reply, respondent disputed this assertion, contending that petitioner had delayed “much longer than the outer limit of 30 to 60 days that most States provide for filing an appeal, ” between May 10, 2012 and March 25, 2013, that the state superior court petition and the state court of appeal petition were “virtually identical” and that there was “no justification” for exceeding the “presumptively reasonable 60-day limit” between the denial of the superior court petition and the filing of the court of appeal petition. ECF No. 24 at 12-13. Respondent also argued that the state courts would not have excused petitioner's delay for the reason asserted by petitioner, and that this court was required to apply California law to determine whether the state court of appeal opinion was timely. Id. at 13-14 & n.6.

         Though he mentioned it in a footnote, ECF No. 26 at 15 n.3, the magistrate judge did not reach this issue. He found that the latest date on which the limitations period began to run was April 30, 2011, that petitioner did not file any petition for collateral relief for 326 days, and that his federal petition was not filed until 82 days after the last state petition was denied, thus making the petition untimely. Id. at 15.

         In the March 31, 2016 order, this court found, inter alia, that the state court of appeals “summary denial” of the petition filed in that court “‘shed[s] little light on whether [the state] court[] found' the petition timely.” ECF No. 31 at 11 (quoting Velasquez v. Kirkland, 639 F.3d 964, 967 n.5 (9th Cir. 2011)). “A federal habeas court must determine timeliness when there is no clear indication by the state court.” Maxwell v. Roe, 628 F.3d 486, 496 (9th Cir. 2010). In doing so, the court looks at (1) whether the state court considered the petition on the merits, and (2) whether petitioner provided the state court with an explanation for the delay. Id. Petitioner has now presented evidence that the state court of appeal required respondent to answer the state petition on the merits, and that respondent filed an opposition to the petition that nowhere asserted the petition was untimely. See ECF Nos. 33-1, 33-2. The state court of appeal's order denying the petition reads as follows:

         The Petition for Writ of Habeas Corpus filed May 2, 2012 has been read and considered.

The Writ of Habeas Corpus is denied for the following reason:
Petition has failed to establish a prima facie case for relief on habeas corpus (In re Lawler 23 Cal.3d 190, 194).
The Court notes that the declaration of defendant, referenced on page 24 of the petition, was Dated: August 6, 2009, well before the date ...

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