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Moore v. Horel

August 17, 2009



Petitioner is a state prisoner proceeding before the court pro se on his sixth amended petition (Doc. No. 83) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss several claims contained in petitioner's sixth amended petition as time-barred in that they have been presented to this court for the first time after the applicable one-year statute of limitations expired. Petitioner opposes the motion to dismiss and, in subsequent filings, seeks further leave to amend to include eleven new claims in addition to the eighty-seven claims set forth in his sixth amended petition. (See Doc. Nos. 116, 117 and 122.) Upon due consideration of the parties' pleadings and consideration of the record, the court will recommend that respondent's motion to dismiss be granted in its entirety, that plaintiff be denied further leave to amend and that respondent be directed to file an answer to the remaining claims alleged in the sixth amended petition pending before this court.


Petitioner challenges a judgment of conviction entered against him in the Sacramento County Superior Court on February 1, 2000, for robbery upon which he was sentenced under California's Three Strikes Law to twenty-five years to life in state prison with an additional fifteen years in enhancements. On December 27, 2002 the California Court of Appeal for the Third Appellate District affirmed the judgment on appeal. On March 5, 2003, the California Supreme Court denied review.

Even before completion of proceedings on his direct appeal, petitioner began his pursuit of collateral relief by filing a steady stream of state habeas petitions which, to date, have totaled seventeen and all of which have been denied. The first eight of those habeas petitions were denied prior to the California Supreme Court's denial of review on petitioner's direct appeal. On March 27, 2003, petitioner signed his ninth state habeas petition for filing with the California Supreme Court. That petition was filed on April 2, 2003 and denied on July 16, 2003.*fn3

As was the case with his pursuit of state habeas relief, petitioner began filing habeas petitions in this court even before his direct appeal was completed. (See Doc. Nos. 1, 3, 10 and 17.) All of those petitions were ultimately dismissed after the court struggled to determine both the nature of the conviction petitioner was attempting to attack and the status of state court proceedings with respect to that conviction. Finally, on November 20, 2003, petitioner filed his fourth amended petition with this court which was the first federal petition filed after the completion of his direct appeal in the state courts.*fn4 Petitioner also sought a stay so that he could exhaust additional claims in state court that were not alleged in the fourth amended petition. On February 12, 2004, the undersigned recommended that a stay and abeyance be granted (Doc. No. 30) and on March 30, 2004, this action was stayed and the case was administratively closed while petitioner exhausted his state court remedies. (Doc. No. 31.)

While the stay was in place petitioner filed numerous state habeas petitions (see Resp't's Mot. to Dismiss at 3-4) but made little progress on exhausting any additional claims in state court, apparently due in large part to his own piecemeal method of proceeding. (See Doc. Nos. 48, 57 and 61.) Accordingly, on March 12, 2007, the undersigned recommended that the stay in this action be lifted. (Doc. No. 61.) However, the then-assigned district judge did not adopt that recommendation and order the stay lifted and the case re-opened until over a year later, on March 17, 2008. (Doc. No. 76.) On December 6, 2007, between the time the undersigned recommended the lifting of the stay and the order re-opening the case was filed, petitioner filed his fifth amended federal petition with this court. (Doc. No. 70.) Accordingly, on May 9, 2008, the court issued an order deeming petitioner's fifth amended petition to be the operative pleading in this action and directing respondent to respond thereto. (Doc. No. 80.)

Nonetheless on May 19, 2008, petitioner filed yet another amended petition, which he referred to as his post-exhaustion amended petition, and on May 22, 2008, requested that the court deem that petition the operative petition. (See Doc. Nos. 83 and 89.) On July 3, 2008, the undersigned granted that request, deemed petitioner's sixth amended petition filed May 19, 2008, to be the operative pleading in this action and directed respondent to file a response thereto. (Doc. No. 96.) On October 30, 2008, respondent moved to dismiss all or part of thirty-four of the eighty-seven claims set forth in the sixth amended petition on the grounds that they are time-barred, having not been submitted to this court within the applicable one-year statute of limitations and not relating back to any claims timely presented to this court. In opposing the motion to dismiss (Doc. No. 113) petitioner also proposes further amendments to his habeas petition, seeking leave to add still more claims to his petition. (See Doc. Nos. 116-17 and 122.)

Below the court will address each of these pending matters.


I. Respondent's Arguments

Respondent moves to dismiss claims 1-7, 18-20, 26(c) & (d) (relating to Rick Dobbs and Robert Hensley only), 30, 38-39, 43-44, 47-48, 50, 59-60, 66-67, 69-71, 73-77, 83, and 86-87 of the sixth amended petition on the grounds that those claims were filed beyond the one-year statute of limitations applicable to this action under 28 U.S.C. § 2244(d). In this regard, respondent contends that petitioner's underlying judgment of conviction became final and the AEDPA statute of limitations began to run on June 4, 2003. Respondent argues that none of the petitions filed in state court before the statute of limitations began to run can serve as the basis for statutory tolling. Respondent notes that only petitioner's ninth state habeas petition, filed with the California Supreme Court on April 2, 2003 but not denied until July 16, 2003, was pending at any time during the one year following June 3, 2003 when the federal limitations period was running.*fn5 Respondent contends that all of petitioner's remaining state petitions were filed between October 2005 and March of 2008, long after the one-year statute of limitations for seeking habeas relief in this court had run, whether that be on June 3, 2004 or forty-two days later on July 15, 2004. Respondent notes that the only federal habeas petition pending before this court as of July 15, 2004 was the fourth amended petition filed November 20, 2003. Respondent reasons that in order to be deemed timely, any claims set forth in the sixth amended federal petition must relate back to that fourth amended federal petition.

Without analysis, respondent contends that a comparison of the two federal petitions reveals that the challenged claims are all new claims that do not relate back to those presented in the fourth amended petition and are therefore time-barred. (Resp't's Mot. to Dismiss at 7-8.) Respondent argues that the fact that this court granted petitioner's request for stay and abeyance is irrelevant to the issue of whether petitioner's current claims are time-barred and that there are no exceptions to the AEDPA statute of limitations that would render the challenged claims timely.

II. Petitioner's Opposition

In scattered fashion petitioner opposes the motion to dismiss arguing as follows.

Petitioner asserts that his ninth state petition entitled him to statutory tolling. He also suggests that because this court held his fourth federal petition in abeyance after granting a stay, that order rendered timely any claims he thereafter exhausted in state court and brought before this court in subsequent federal petitions. Petitioner also argues that because his new claims are meritorious and all involve assertions that he was subject to a "miscarriage of justice" in state court, these new claims should not be dismissed. Next, petitioner asserts that his new claims alleging state court sentencing errors, ineffective assistance of counsel and those challenging the constitutionality of California's Three Strikes Law are not subject to the statute of limitations. Petitioner also suggests that ...

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