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Hebert v. Marshall

September 14, 2009

ROBERT A. HEBERT, PETITIONER,
v.
JOHN MARSHALL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed this action on October 6, 2008, but is proceeding on the amended petition filed January 15, 2009. Petitioner challenges his 2003 conviction for assault with force likely to produce great bodily injury and battery with serious injury. He is serving a sentence of seven years.

Both parties have consented to the jurisdiction of the undersigned. See court file docs. 4, 10.

Pending before the court is respondent's April 10, 2009, motion to dismiss on grounds that this action is barred by the statute of limitations. For the following reasons, respondent's motion is granted.

On June 26, 2009, respondent filed a motion for an extension of time to file a reply to petitioner's opposition. Good cause appearing, respondent's motion is granted and the reply is deemed timely filed.

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

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.

The California Supreme Court denied petitioner's petition for review on November 16, 2005. Respondent's Lodged Document 4. Petitioner's conviction became final 90 days later on February 14, 2006, when the time to file a petition for writ of certiorari in the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Petitioner had one year from that date to file a timely federal petition. The instant action is not timely unless petitioner is entitled to statutory or equitable tolling. Petitioner indicates at times that he believes that subsection D applies to his case, i.e., the AEDPA limitations period does not commence until the factual predicate of the claim could or should have been known. However, it is clear from the opposition that petitioner was well aware of the factual predicates of all his claims; he complains only that he was not aware of the legal significance of such, e.g., that he was prejudiced. See Opposition at 8. This latter "legal unawareness" does not trigger subsection D. See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir.2001) ("This is not to say that [petitioner] needed to understand the legal significance of those facts-rather than simply the facts themselves-before the due diligence (and hence the limitations) clock started ticking."). Thus, Subsection A applies to this case.

28 U.S.C. § 2254(d)(2) provides that the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section. In Nino v. Galaza, the Ninth Circuit held that the "statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999). The Ninth Circuit reasoned that tolling the limitations period during the time a petitioner is preparing his petition to file at the next appellate level reinforces the need to present all claims to the state courts first and will prevent the premature filing of federal petitions out of concern that the limitation period will end before all claims can be presented to the state supreme court. Id. at 1005.

Giving petitioner the benefit of the mailbox rule, the court finds that he filed his first state habeas petition in the California Court of Appeal on August 9, 2006. Respondent's Lodged Document 14. See Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000). On September 7, 2006, the California Court of Appeal denied this petition by order citing In re Hillery, 202 Cal.App.2d 293 (1962). Respondent's Lodged Document 6. Giving petitioner the benefit of the mailbox rule, the court finds that he filed a habeas petition in the Sierra County Superior Court on September 24, 2006. Respondent's Lodged Document 7. On October 16, 2006, petitioner filed an amended petition. Respondent's Lodged Document 8. On January 19, 2007, the Superior Court denied the petition in a reasoned decision. Respondent's Lodged Document 9.

Petitioner next filed a petition in the California Court of Appeal which is file stamped July 11, 2007. Respondent's Lodged Document 10. This petition contains two proofs of service, one dated June 13, 2007, and another dated June 4, 2007. Id. However, petitioner signed the petition on June 14, 2007. Giving petitioner the benefit of the doubt and the benefit of the mailbox rule, the court finds that this petition was filed on June 4, 2007. On August 30, 2007, the California Court of Appeal denied the petition without comment or citation. Respondent's Lodged Document 11.

Petitioner next filed habeas corpus petition in the California Supreme Court which is file stamped March 17, 2008. Respondent's Lodged Document 12. The proof of service attached to this petition is dated March 11, 2008. Id. On September 17, 2008, the California Supreme Court denied the petition without comment or citation. Respondent's Lodged Document 13.

Respondent argues that the first petition filed in the California Court of Appeal was not properly filed for purposes of 28 U.S.C. § 2254(d)(2). This petition, although somewhat difficult to understand, appears to have raised claims of ineffective assistance of appellate and trial counsel and prosecutorial misconduct. The California Court of Appeal denied the petition by citing In Re Hillery, which held that a California Court of Appeal has discretion to refuse to issue a writ of habeas corpus as an exercise of original jurisdiction on the ground that application has not been made in a lower court in the first instance, where there is no showing in the petition that any extraordinary reason exists for action by the Court of Appeal rather than by the Superior Court.

The undersigned has previously found that a citation to Hillery demonstrates that a state habeas action was not properly filed pursuant to 28 U.S.C. ยง 2254(d)(2). See Ramirez v. Campbell, CIV S-06-1257 FCD GGH P. The court has since reconsidered this position and finds ...


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