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Manago v. Walker

November 2, 2009

STEWART MANAGO, PETITIONER,
v.
JAMES WALKER, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 31, 2008, the undersigned ordered respondent to file and serve a response to the petition. On March 2, 2009, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion and respondent has filed a reply.

BACKGROUND

On October 5, 1993, a Solano County Superior Court jury convicted petitioner of aggravated assault by a prisoner with a weapon. Pursuant to the jury's verdict, the trial court sentenced petitioner to eleven years in state prison. On December 16, 1994, the California Court of Appeal for the First Appellate District affirmed petitioner's judgment of conviction. Petitioner did not seek review with the California Supreme Court. (Pet. at 2 & Resp't's Exs. 1-2.)

On November 19, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. On December 10, 2007, that court construed the petition as a petition for writ of mandate and denied the petition. On March 10, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On August 13, 2008, the court denied the petition. (Pet. at 2, Attach. & Resp't's Exs. 1, 4, 5, 6-8.)

On November 13, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus. Therein, petitioner acknowledged the untimeliness of his federal habeas petition but claimed that he suffers from mental illnesses and should not be barred from proceeding in this action. (Pet. at 5 & Ex. A.)

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent has filed a motion to dismiss arguing that petitioner's federal habeas petition is time-barred. Specifically, respondent argues that on December 16, 1994, the California Court of Appeal affirmed petitioner's conviction, causing petitioner's judgment of conviction to become "final" forty days thereafter, on January 25, 1995, after the time for seeking direct review in the California Supreme Court expired. Respondent argues that, because petitioner's conviction predated AEDPA, he had until April 24, 1997, to file his federal habeas petition. (Resp't's Mot. to Dismiss at 3.)

Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. Here, however, petitioner did not file his first petition for writ of habeas corpus in the state courts until November 2007, many years after the statute of limitations for the filing of a federal habeas petition had expired. Respondent argues that petitioner's filings in state court after the AEDPA statute of limitations expired do not restart the clock at zero or otherwise save petitioner's claims from being time-barred. (Resp't's Mot. to Dismiss at 3.)

Respondent also rejects petitioner's claim of entitlement to equitable tolling due to his mental illnesses. Specifically, respondent argues that petitioner can show neither diligence nor that an extraordinary circumstance stood in his way of timely filing his federal habeas petition. Respondent contends that although petitioner's mental health records show that he has received treatment for mental illnesses in the past, they do not demonstrate that he was so incapacitated that he could not file a federal habeas petition before the AEDPA limitations period expired. In fact, respondent contends that petitioner's pro se filings and active participation in other cases during the relevant time period belie his claim that he was unable to timely file a federal habeas petition because of his mental condition. Respondent cites the following examples of petitioner's litigation activities during the relevant time period:

* Manago v. Gomez, Case No. CIV S-93-0794 EJG JFM (E.D. Cal.) (May 28, 1996 [settlement conference]; June 3, 1996 [letter from petitioner regarding settlement docketed]; June 25, 1996 [notice from petitioner that case settled]; July 31, 1996 [stipulation of dismissal by both parties]) (Resp't's Ex. 16.)

* Manago v. White, Case No. CIV S-94-0304 DFL JFM (E.D. Cal.) (July 18, 1996 [opposition to motion for summary judgment]; February 10, 1997 [objections to findings and recommendations]; March 27, 1997 [pretrial statement]; March 31, 1997 [motion for legal documents]) (Resp't's Ex. 17.)

* Manago v. Gomez, Case No. CIV 96-1190 MHP (N.D. Cal.) (December 2, 1996 [opposition to motion for summary judgment]) (Resp't's Ex. 18.)

* Manago v. Gomez, Case No. CIV 96-1615 MHP (N.D. Cal.) (May 1, 1996 [complaint]) (Resp't's Ex. 19.)

Respondent also argues that petitioner demonstrated his ability to file pro se pleadings in the years immediately after the statute of limitations for the filing of a federal habeas petition expired in this case all the way through 2008, thereby undermining any claim from petitioner that he acted with diligence in pursuing habeas relief. In this regard, respondent cites the following examples:

* In re Stewart Manago, Case No. SWHSS 5084 (San Bernardino County Super. Ct.) (November 25, 2001 [petition for writ of habeas corpus]) (Resp't's Ex. 9.)

* Manago v. Superior Court, Case No. E032629 (Cal. Ct. App.) (October 29, 2002 [petition for writ of mandate]) (Resp't's Ex. 12.)

* In re Stewart Manago, Case No. E031722 (Cal. Ct. App.) (May 28, 2002 [petition for writ of habeas corpus]) (Resp't's Ex. 13.)

* In re Stewart Manago, Case No. S111609 (Cal.) (November 17, 2002 [petition for writ of habeas corpus]) (Resp't's Ex. 14.)

* Manago v. Pliler, Case No. CIV 03-1205 SJO SS (C.D. Cal.) (October 16, 2003 [petition for writ of habeas corpus]; January 20, 2004 [opposition to motion to dismiss]; October 19, 2004 [traverse]; July 10, 2006 [objections to findings and recommendations]) (Resp't's Ex. 20.)

* Manago v. Gomez, Case No. CIV S-98-0903 WBS JFM (E.D. Cal.) (May 18, 1998 [complaint]; September 25, 1998 [opposition to motion to dismiss]; February 1, 1999 [amended complaint]; May 20, 1999 ...


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