IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 25, 2009
DANIEL G. SCHAFER, PETITIONER,
KEN CLARK, WARDEN, ET AL., RESPONDENTS.
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to the parties' consent. Dckt. Nos. 3, 11. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). Respondent moves to dismiss on the ground that this action is untimely.
Respondent seeks dismissal of the petition because it was filed beyond the one-year limitations period applicable to habeas actions. That one-year limitations period commences upon one of four events. The parties dispute which event commenced the limitations period here. Petitioner contends that with respect to his fourth claim,*fn1 the period began the date the United States Supreme Court announced a new rule and made it retroactively applicable to cases on collateral review. With respect to his third claim,*fn2 he asserts that it began the date he discovered facts that he could not previously have discovered though the use of due diligence.
Respondent does not differentiate the claims and argues generally that the one-year period began to run as to all claims on the date petitioner's conviction became final on direct review.
As explained below, the court finds that the one-year time period commenced as to all claims on the date petitioner's conviction became final. Moreover, petitioner does not claim that he is entitled to statutory tolling. He does, however, argue for equitable tolling. The court has considered both statutory and equitable tolling and finds that neither apply here. Accordingly, the petition is untimely and this action must be dismissed.
II. Procedural History
On February 25, 1998, when he was 16 years old, petitioner pleaded guilty to and was convicted of one count of kidnaping and multiple counts of robbery. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1; Pet'r Opp'n, at 1. He did not appeal.
In December of 1999, petitioner requested the trial court to provide transcripts of his plea and sentencing hearings free of cost. Pet'r Opp'n, Decl. Attach. Thereto ("Pet'r Decl."), at 1, 3. The trial court denied the request on September 7, 2000. Pet'r Decl., Ex. A. When the Supreme Court decided Blakely v. Washington, 542 U.S. at 303-04, 296, he realized the significance of these transcripts and began writing to friends and family in an attempt to procure a copies. Id., at 1. A copy of the plea agreement and minute order accepting the plea were sent to him in 2005, whereupon he filed a habeas petition in the trial court. Id. It is not clear when, but petitioner attempted to contact his father, who sent him a partial copy of his probation report in 2006. Id. at 2. He based all the claims in his federal habeas petitions on this report. Id.
The next judicial activity with respect to petitioner's conviction and sentence occurred on July 1, 2005, when petitioner filed a petition for a writ of habeas corpus in the trial court. Lodg. Doc. 2. The trial court denied that petition and he then filed a petition in the appellate court on September 29, 2006. Lodg. Docs. 3, 4. After the appellate court denied relief, petitioner filed petition in the California Supreme Court on October 27, 2006. Lodg. Docs. 5, 6. While that petition was pending, petitioner returned to the trial court with a second habeas petition filed March 21, 2007. Lodg. Doc. 8. Less than one month later, on April 17, 2007, the trial court again denied relief. Lodg. Doc. 9. On May 16, 2007, the California Supreme Court denied the petition pending before it. Lodg. Doc. 7.
Petitioner filed his application for a writ of habeas corpus in this court on May 22, 2008. He raises four claims. Claims three and four are relevant to the parties' dispute about when the limitations period commenced. In claim four, he contends that his sentence of 19 years in prison violates the Eighth Amendment's ban of cruel and unusual punishment because he was 16 years of age at the time he committed the crimes of conviction. Petition at 5. He relies on Roper v. Simmons, 543 U.S. at 574, in which the United States Supreme Court held that imposition of the death penalty on juveniles under the age of 18 at the time of the offense violates the cruel and unusual clause of the Eighth Amendment. In claim three, he argues that the trial court determined the statutory maximum based upon which an enhanced sentence could be imposed in violation of the Sixth and Fourteenth Amendments. See Blakely v. Washington, 542 U.S. at 303-04.
III. Standards Governing the Statute of Limitations
Section 2244(d)(1) of Title 28, United States Code provides that:
(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.
28 U.S.C. § 2244(d)(1). The running of the one-year period is tolled once a petitioner properly files a state post conviction application, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). The period "is not tolled from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). A federal habeas application does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The Supreme Court has held that a habeas petitioner "seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Ninth Circuit, applying Pace has explained that "the threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
A. Commencement of the Limitations Period
The parties' dispute here centers on which of the events enumerated above triggered the commencement of the limitations period for petitioner's claims.
1. 28 U.S.C. § 2244(d)((1)(C) - New Supreme Court Decision
In his fourth claim petitioner contends that under Roper v. Simmons, 543 U.S. at 574, his sentence violates the Eighth Amendment. Petition at 6. He argues that the one-year limitations period for this claim began to run on March 1, 2005, when the Supreme Court decided Roper.*fn3
Pet'r Opp'n, at 4. He asserts that "[a] fundamental aspect of [his] petition is based on the rationale of the Supreme Court case of Roper v. Simmons (2005) which addresses... harsh juvenile sentences...." Id. Respondent does not address this argument, but rather, argues generally that all claims are untimely because the petition was filed beyond the one-year period. However, whether Roper has any application here is material to the motion. If Roper resulted in a change in the law that is material to one or more of petitioner's claims, the limitations period commences as to that claim(s) on "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." 28 U.S.C. § 2244(d)(1)(C).
Generally, a new rule of constitutional criminal procedure is not retroactively applicable to cases that have become final on direct review. Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288, 305-06 (1989). Such a rule may, however, be retroactively applicable to cases decided after a conviction has become final. Teague, 489 U.S. at 209-300. A rule of constitutional criminal procedure is "new" when "it breaks new ground or imposes a new obligation on the States or the Federal Government." Id., at 300 (modifying Linkletter for question of whether new rules apply retroactively to criminal cases that have become final on direct review). A new rule is "made" retroactively applicable when the United States Supreme Court holds that it is. Tyler v. Cain, 533 U.S. 656, 661 (2001). New rules "prohibiting a certain category of punishment for a class of defendants because of their status or offense" are exempt from the general rule against retroactivity. Penry v. Lynough, 492 U.S. 302, 330 (1989).
Unquestionably, the rule announced in Roper is new. Indeed, the Court explicitly overruled existing precedent. Roper, 543 U.S. at 563, 564, 574.*fn4 Furthermore, the rule announced in Roper is categorical for purposes of Penry because it prohibits capital punishment for a class of defendants because of their status, i.e., age of 18 years and under. Here, the course of events favors retroactive application: petitioner's conviction became final April 26, 1998; Roper was decided March 1, 2005; and petitioner filed his first post-conviction motion on June 21, 2005, within one year of the change in the law due to Roper. Thus, Roper is a new rule which, if applicable to petitioner's claim, would apply retroactively and commence the limitations period as to that claim. However, petitioner has not shown how the new rule in Roper applies to him.
The Supreme Court held that "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." 543 U.S. at 578. Although he was 16 years of age at the time he committed his crimes, this is not a death penalty case. Rather, petitioner was sentenced to a little over 19 years in prison. He argues that he was tried as an adult and remanded not to the California Youth Authority, but instead to Deuel Vocational Institution*fn5 and suggests that this fact invokes Roper. Lodg. Doc. 1. The argument is without merit. Petitioner's sentence and the execution of it are not on a par with the death penalty. Rather, as the Supreme Court has emphasized, there is a "qualitative difference of death from all other punishments," because of its "severity and irrevocability." See California v. Ramos, 463 U.S. 992, 996-97, 1013-1014 (1983) (unconstitutional in capital case to refuse to instruct jury that governor has power to grant a reprieve, pardon, or commutation of a sentence). When petitioner's sentence is fully executed, the prison doors will be opened for him. The same cannot be said of a juvenile whose sentence is executed by lethal means. Therefore, even though the rule announced in Roper is a new rule that the Supreme Court has made retroactively applicable to cases on collateral review, the rule does not apply in this case. Accordingly, the ruling in Roper did not commence the one-year limitations period for any of the claims in this case.
2. 28 U.S.C. § 2244(d)(1)(D) - Newly Discovered Facts
In claim three, petitioner contends that his sentence violates the Sixth and Fourteenth Amendments as explained in Blakely v. Washington, 524 U.S. at 303-04. Petition at 5. He contends that as to this claim, the limitations period commenced the date he discovered the facts underlying his Blakely claim. Pet'r Opp'n, at 3. The limitations period can commence on "the date... the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 224(d)(1)(D). Under this provision, "[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)); see also Shannon v. Newland, 410 F.3d 1083, 1087-88 (9th Cir. 2005) (a state court's clarification of its own law is not a "factual predicate" for purposes of triggering the running of the limitations period under § 2244(d)(1)(D)).
Petitioner argues that all of his claims are based on the partial copy of the probation report he received in 2006, which he began seeking in earnest in 2004 after learning of the decision in Blakely, 542 U.S. at 303-04. In essence, he asserts that he began searching for the facts underlying his claim when he realized the significance that certain facts would have if he discovered them. Thus, as a matter of law, his contention fails.
Further undermining petitioner's argument is the fact that he was represented by counsel at the sentencing hearing. Pet'r Opp'n, at 2. While he alleges that counsel failed to give him a copy of this report, he does not allege that counsel failed to discuss the report with him. Id. It appears from the record that petitioner knew the contents of this report at the time of sentencing. Furthermore, he does not allege he was absent from the sentencing hearing. Therefore, he knew or should have known at the time of that hearing what factors the sentencing judge relied upon in imposing the sentence. On these facts, the court cannot find that petitioner did not know the information necessary to bring his claims until 2006, when he received a copy of the report. Accordingly, the limitations period was not commenced when he obtained this report.
The court has found that the limitations period did not commence based on the events petitioner claims. Having reviewed respondent's argument and section 2244(d)(1)(B), the court finds that the limitation period began the date petitioner's conviction was final. Accordingly, the court turns to the question of when petitioner's conviction became final.
3. 28 U.S.C. § 2244(d)(1)(A) - Finality of the Conviction
California law governs the question of finality. Respondent asserts that he did not file an appeal and nothing in the record suggests otherwise. Indeed, petitioner does not allege that he appealed his conviction. Therefore, under state law his conviction was final 60 days after the trial court entered its judgment. California Rules of Court, Rule 8.308. The trial court entered judgment on February 25, 1998. Therefore, his conviction was final on April 27, 1998, and he had until April 28, 1999, to file his federal habeas petition. Absent tolling, the May 22, 2008, petition is untimely.
B. Statutory Tolling
Although petitioner does not contend that he is entitled to statutory tolling, he does seek equitable tolling and the Ninth Circuit has instructed that district courts must determine whether a petitioner benefits from statutory tolling before considering whether he is entitled to equitable toling. Jorss v. Gomez 311 F.3d 1189, 1192 (9th Cir. 2002) (equitable tolling framework requires a court first determine whether the petition was timely filed under 28 U.S.C. § 2244(d)(1) and whether the petitioner is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2)).
While petitioner filed a number of habeas petitions in California's courts, none of them provides a basis for statutory tolling. A motion for post-conviction relief in the state court does not toll the limitation period if it is filed after the limitations period expires. See Fergusun v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (section 2244(d) does not permit re-initiation of the limitation period when it expires before a timely state petition for post-conviction relief was filed). Petitioner filed his first habeas petition in the state courts on July 1, 2005, nearly six years*fn6 after the limitation period expired. Petitioner has not established a basis for statutory tolling. Therefore, unless he can demonstrate he is entitled to equitable tolling, the federal application must be dismissed as untimely.
C. Equitable Tolling
Petitioner has the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. at 418. As the Ninth Circuit has instructed, petitioner faces a very high threshold and must shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing his petition. Waldron-Ramsey, 556 F.3d at 1011.
Petitioner alleges that a number of factors warrant a finding that he is entitled to equitable tolling. Pet'r Opp'n, at 1-3. Only one of those circumstances occurred before the limitations period expired and could possibly meet the applicable standard. He asserts that lockdowns occurring "for years" and as early has when he was first committed to custody made it impossible for him to gain access to the law library. Id. at 1, 3. While a lack of access to the law library and legal materials can be a basis for granting equitable toling, Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002), petitioner must allege facts showing that this circumstance was extraordinary and prevented him from timely filing. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)(petitioner alleged detailed facts about prison officials' mishandling of his petition and request for funds to pay the filing fee). Petitioner asserts that during the lockdowns, only prisoners with filing deadlines were permitted access to the law library during the lockdowns. He does not allege that he requested time in the law library due to deadlines, but was denied access. Neither does he allege when the lockdowns began and ended. It is unlikely that prison officials held all prisoners on lockdown continually for all of the years he references, and he does not allege that he had no access to the law library between periods of lockdown. Other than this general allegation about lockdowns, he does not allege that he took any measures to challenge his conviction until December of 1999. His federal petition was due no later than April 26, 1999, about 7 months before he requested that the trial court send him copies of the transcripts of the plea and sentencing hearings. By definition, tolling of a limitations period cannot begin after the limitations period has expired. See Fergusun, 321 F.3d at 823. Therefore, no action that petitioner took after April 26, 1999, entitles him to equitable tolling, no matter how extraordinary the circumstances and regardless of how diligence he was thereafter. Accordingly, equitable tolling does not apply and the petition is untimely.
The date that petitioner's conviction became final triggered the commencement of the one-year limitations period for all the claims in his the petition. Petitioner filed the instant petition for a writ of habeas corpus after the limitations expired, and he has not demonstrated that he is entitled to any sort of tolling. Therefore, the petition is untimely and respondent's motion must be granted.
Accordingly, it is hereby ORDERED that:
1. Respondent's December 19, 2008, motion to dismiss this action as untimely is granted;
2. This action is dismissed; and,
3. The Clerk is directed to close the case.