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Whitney v. Hedgpeth


September 28, 2009


The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge


I. Procedural History

Petitioner filed his first federal petition for writ of habeas corpus on August 10, 2007, in case number 07cv1592. This was dismissed on September 6, 2007 because Petitioner did not use the proper form, but he was advised he could have the case reopened by filing a First Amended Petition no later than November 5, 2007. He was sent a copy of the form to use.

His First Amended Petition was accepted for filing on September 21, 2007 but dismissed again without prejudice on September 28, 2007 for failure to name a proper respondent and for failure to allege exhaustion of state judicial remedies. The form he was sent included an area to describe how he exhausted his claims in state court, but he left this blank. Petitioner was advised about exhaustion of state remedies both in this order and in a separate notice issued November 11, 2007. The order informed Petitioner he could have the case reopened by filing an amended petition no later than November 16, 2007.

Petitioner then submitted four other documents: an application for appointment of counsel, a cover page to his dismissed petition specifying his demand for an evidentiary hearing, a second application for appointment of counsel, and a renewed request to be allowed to amend the cover page to his dismissed petition. These were rejected by discrepancy orders showing the case was closed, and the submitted documents were returned to Petitioner. (Docket numbers 7--10.) The last of these documents was rejected on January 7, 2008.

By a letter dated October 23, 2008, Petitioner submitted an inquiry asking about the status of his case. This too was rejected by discrepancy order, which explained that Petitioner needed to file a new petition. All these documents were filed in case number 07cv1592. Petitioner then filed a new petition (the "Petition") in this case,*fn1 and it is this new Petition which is currently under consideration.

The pending Petition was accepted for filing on November 24, 2008. Respondent then moved to dismiss it as untimely. The motion was fully briefed and referred to Magistrate Judge Ruben Brooks for report and recommendation pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d). On July 29, 2009, Judge Brooks issued his report and recommendation (the "R&R") finding the current Petition was untimely and recommending it be denied on that basis. Petitioner then filed a notice of change of address, a motion for extension of time to file objections to the R&R, and another motion for appointment of counsel. On September 11, 2009, the Court denied his request for appointment of counsel but granted Petitioner's request for an extension of time. Petitioner then filed his objections to the R&R ("Objections"), which were accepted for filing on September 25, 2009.

II. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection.

III. Discussion

Petitioner has filed detailed page-by-page objections to the R&R supported by over a hundred pages of exhibits. Most of the objections focus on matters Petitioner believes the R&R should have included but did not, and in many of them he agrees with the R&R's findings. In any event most are not cognizable on federal habeas review, or would not affect the Court's ruling even if they were sustained.

The R&R determined the second federal Petition, filed in this case on November 24, 2008, was untimely under AEDPA, 28 U.S.C. § 2244(d). If this is correct, the only relevant portions of Petitioner's Objections to the R&R are found at 1--2:18 and 3:11-17, and the remaining objections, even if they were cognizable, would pertain to time-barred claims.

The R&R made factual findings regarding the dates Petitioner's conviction became final, the date he filed his first state habeas petition, and the date his final state habeas petition was denied, and the time during which he was not pursuing any state appellate or habeas relief. (R&R at 3:18--4:3, 6:22--7:18.) Petitioner has not objected to these factual findings, which the Court therefore ADOPTS. The R&R's findings show Petitioner's conviction became final on October 24, 2005. AEDPA's one-year limitations period then ran for nearly ten months until August 18, 2006, when he submitted his first state habeas petition. After the state supreme court denied his habeas petition on July 11, 2007, he filed his initial federal petition on August 10, 2007. At this point, nearly eleven months of the one-year limitations period had run.

As discussed above, the first federal petition was dismissed and Petitioner failed to file an amended petition within the time permitted. The period during which a federal habeas petition is pending does not toll AEDPA's one-year limitations period, Duncan v. Walker, 533 U.S. 167, 181 (2001), so the time continued to run throughout this whole period. Over a year after his first federal petition was dismissed, he filed the pending Petition. This was sixteen months after the state supreme court denied his habeas petition. Because the state petition was filed nearly ten months after his petition became final, over two years and two months passed before Petitioner filed the currently pending Petition. (R&R at 10:18--11:14.) Even with statutory tolling, see § 2254(d)(2), the currently pending Petition is thus time-barred under § 2254(d) unless Petitioner is also entitled to equitable tolling.

A petitioner seeking equitable tolling bears the heavy burden of showing "(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).

As one basis for equitable tolling, Petitioner points to the state trial court's refusal to provide him with a free copy of a particular hearing transcript for purposes of pursuing state habeas relief. (See Pet., Ex. Q (state court's reply letter dated October 21, 2005).) The trial court's reply informed Petitioner that because the transcript related to a pending appeal, it would be the appellate court that would grant him a transcript if he needed it, and suggested he contact his counsel for assistance augmenting the record. (Id.) After loss at the state court of appeal level, Petitioner's attorney had informed him he found no basis for a further appeal, and gave Petitioner information on how to file his own appeal if he wished to. (Pet., Ex. N (letter from counsel dated September 16, 2005).) When Petitioner sought an extension of time in which to file a petition for review, the state court informed him how he could seek relief from default if he was unable to file on time. (Id., Exs. O, P (petition to and response from California supreme court).) The R&R found Petitioner never filed a petition for review, and Petitioner does not object to this finding. (R&R, 3:20--25.) The Objections never state what steps Petitioner took to obtain the transcript he needed, or whether he eventually received it. Petitioner's allegation that his appellate counsel did not have the transcript in question (Objections at 6:11--17) does not show why Petitioner himself could not have obtained the transcript. Contrary to Petitioner's assertions, the state court's letter does not tell him to obtain the transcript from his attorney; rather, it tells him that the appellate court would make the determination whether he should be provided a transcript. (Pet., Ex. Q.)

Petitioner does not, as he believes, have a due process right to assistance of appointed counsel for later stages of appeal. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Petitioner's counsel's failure to help him as requested after the first round of appeal therefore does not serve as a basis for tolling. Smith v. Idaho, 392 F.3d 350, 356--57 (9th Cir. 2004). This is particularly true here, where Petitioner's counsel informed him he could file the petition for review himself and provided him information on how to do so. The remainder of his objections pertaining to his attorneys' performance or the state court's sentencing have no bearing on the tolling of the limitations period.

The Objections also argue for tolling based on Petitioner's claim he never received a copy of this Court's order of September 28, 2007 in the mail. He attaches copies of the prison mail logs in support of this argument, and requests an evidentiary hearing on this issue. The logs are not authenticated but the Court will consider them for purposes of determining whether Petitioner's allegations, if true, would entitle him to relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (holding a hearing is not required "if the record refutes the applicant's factual allegations or otherwise precludes habeas relief"). The logs do not show what Petitioner received, but they do show the dates mail was received and whom it was received from.

The incoming mail log shows Petitioner received two pieces of mail from this Court on September 11, 2007 and another piece on September 17. (Objections at 11.) After that, the logs record nothing from this Court until December, 2007. Petitioner then received one piece of mail from this Court on December 3, 2007, another on December 20, 2007, another on January 8, 2008, and another on January 15, 2008. The logs show nothing further received from the Court until October 20, 2008.*fn2

Petitioner has not alleged he had any other matters pending in this Court, and the Court's records show the only two cases in this Court to which he was a party are his two petitions. Reviewing the docket, the first two pieces of mail were likely the Court's amended order of September 6, 2007 dismissing his petition without prejudice*fn3 and the notice of September 11, 2007 regarding possible failure to exhaust and the one-year statute of limitations. (Docket nos. 3, 4.) Accepting Petitioner's allegation that none of the four pieces of mail is the September 28 order, the four pieces of mail received from December 3, 2007 appear to be the four discrepancy orders issued from November 26, 2007 to January 7, 2008 rejecting Petitioner's attempted filings.

These discrepancy orders show that no tolling is appropriate, because three of them put Petitioner on notice that his Petition had been dismissed. Each of them explains the reason the attempted filing is being rejected. The order issued November 26, 2007 says in boldface type, "Case closed as of 9/28/07." One of the two orders issued December 17, 2007, which Petitioner later refers to, says in boldface type, "Case closed as of 9/28/2007 (Docket #6)."*fn4 The order issued January 7, 2008 simply says in boldface type, "Case closed." Petitioner certainly received the warning "Case closed as of 9/28/07 (Docket #6)." because he later sent a letter to the Court about it. (See Docket no. 10 (rejected letter from Petitioner asking "Can I get your permission to file this application cover head to correct the one that was rejected . . . . The document number is 8 and 9.")) The fact that docket number 6 was cited as the basis for the case's being closed, and was not otherwise accounted for, should have led him to ask for this document or at least look at the docket. And the mere fact that the case was closed should also have prompted him to inquire further as well. See Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc ., 587 F.2d 27, 29 (9th Cir. 1978) (holding that a claimant is under a duty to prosecute his case with reasonable diligence).

Petitioner never sought leave to file his Petition as a second amended petition in case 07cv1592, but if he had done so, it would have been denied. He has shown no good cause for his dilatory filing, because even after he was told his first petition had been dismissed, he failed to make further inquiries for about ten months. This was an unreasonable delay. Even though he is a prisoner proceeding pro se, he must "follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Furthermore, excusing habeas petitioners' defaults without a showing of good cause would circumvent the principal purpose of AEDPA's limits. See King v. Ryan, 564 F.3d 1134, 1139 (9th Cir. 2009) (explaining that district courts must be mindful of AEDPA's purpose of reducing delays in the execution of criminal sentences when considering whether to stay habeas petitions) (citing Rhines v. Weber, 544 U.S. 269, 276 (2005)).

In short, even assuming the truth of Petitioner's allegation that he never received the Court's order dismissing his first petition,*fn5 he had ample notice his petition had been dismissed. After being given notice, he did nothing for about ten months. He then obtained a copy of the docket, something he could and should have done immediately upon being told his case had been dismissed by an order he now says he had never seen. This falls far short of a showing "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. No hearing is required because regardless of what was determined, Petitioner would not be entitled to relief. These objections are therefore OVERRULED.

No other basis for tolling is presented, and it is therefore apparent the Petition is over fourteen months late. Because this finding moots the remainder of Petitioner's objections (to the extent they were cognizable), they are OVERRULED as moot.

While it will be of little comfort to Petitioner, the Petition would have been denied even if it had been timely. The Petition makes no arguments of its own, but merely refers the Court to a copy of the petition he filed with the California supreme court. (Pet. at 6--14 (referring to state petition), 17--63 (excerpt of state petition).) Of the six stated grounds for relief, three arise entirely under state law, and to the extent they might be construed to arise under federal law he never adequately apprised the state court of any federal grounds for relief. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law.") (internal quotation marks and citation omitted)); Fields v. Waddington, 401 F.3d 1018, 1020--21 (9th Cir. 2005) (holding that habeas petitioner must clearly identify federal claims in petition to state court) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)) (further citations omitted).

Of the three federal claims, the first merely argues that admission of Petitioner's co-defendant's uncharged prior was contrary to state law and therefore fundamentally undermined his federal due process rights. The federal portion of this claim is without merit. The second is a claim under Blakely v. Washington, 542 U.S. 296 (2004), which was already raised and corrected by the state court. This claim is therefore moot, and Petitioner does not attempt to show otherwise.

The third is a claim that admission of Petitioner's co-defendant's confession to a different uncharged robbery was a violation of the principle announced in Bruton v. United States, 391 U.S. 123 (1968). The confession did not facially implicate Petitioner, and only served to incriminate him to the extent other evidence showed he participated in the other robbery. This does not support a grant of federal habeas relief. See Mason v. Yarborough, 447 F.3d 693, 695 (9th Cir. 2006) (holding Richardson v. Marsh, 481 U.S. 200 (1987) "specifically exempts" from the Bruton rule "a statement, not incriminating on its face, that implicates the defendant only in connection to other admitted evidence").

III. Conclusion and Order

The Objections therefore do not show the Petition is timely, and are therefore OVERRULED. The Court ADOPTS the R&R and, because the Petition is time-barred, GRANTS the motion to dismiss. Petitioner's renewed request for appointment of counsel is DENIED as moot. The Petition is DENIED.


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