UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 4, 2010
TIMOTHY L. GENTRY, PETITIONER,
JOHN W. HAVILAND, RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE AS UNTIMELY, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
On April 8, 2004, Petitioner was convicted of voluntary manslaughter in the California Superior Court, County of Kern. (Lodged Doc. No. 1.)
Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. The Court of Appeal affirmed the judgment on March 23, 2006. (Lodged Doc. No. 2.) On July 12, 2006, the California Supreme Court denied review. (Lodged Doc. Nos. 3 & 4.)
Petitioner subsequently filed three pro se state post-conviction collateral petitions.*fn2 The first petition was filed on September 5, 2007 in the Kern County Superior Court. (Lodged Doc. No. 5.) The petition was denied on November 13, 2007. (Lodged Doc. No. 6.)
The second petition for writ of habeas corpus was filed in the California Court of Appeal, Fifth Appellate District on December 22, 2007. (Lodged Doc. No. 7.) The petition was denied on May 15, 2008. (Lodged Doc. No. 8.)
The third and final petition was filed in the California Supreme Court on August 3, 2008, and denied on February 11, 2009. (Lodged Doc. Nos. 9 & 10.)
Petitioner filed the instant federal petition for writ of habeas corpus on February 28, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss on July 27, 2009. (Court Doc. 17.) Petitioner filed an opposition on November 25, 2009, and Respondent filed a reply on December 14, 2009. (Court Docs. 30, 31.)
A. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one-year limitations period. Therefore, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
B. Limitation Period for Filing a Petition for Writ of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on February 28, 2009, and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, Section 2244, subdivision (d) reads:
(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.
(2) 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 subsection.
In most cases, the limitation period begins running on the date that the petitioner's direct review became final. Here, on March 23, 2006, the California Court of Appeal, affirmed the judgment. (Lodged Doc. No. 2.) The California Supreme Court denied review on July 12, 2006. (Lodged Doc. No. 4.) Thus, direct review became final on October 10, 2006, when the ninety time frame expired to file a petition for writ of certiorari in the United States Supreme Court. Therefore, the one year limitations period began on the following day, October 11, 2006, and absent tolling, was set to expire on October 10, 2007. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (holding that Rule 6(a) of the Federal Rules of Civil Procedure governs the calculation of statutory tolling applicable to the one year limitations period.)
C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)
Title 28 U.S.C. § 2244(d)(2) states 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" the one year limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is properly pursuing post-conviction relief, and the period is tolled during the intervals between one state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000). Nevertheless, state petitions will only toll the one-year statute of limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or determined by the federal courts to have been untimely in state court will not satisfy the requirements for statutory tolling. Id.
1. Time that Elapsed Prior to Filing First Petition
As noted, the statute of limitations commenced running on October 11, 2006. At the time Petitioner filed his first state petition on September 5, 2007, 329 days of the limitations had expired. (Lodged Doc. No. 5.)
2. Tolling During Period the First and Second Petitions
Were Pending in State Court Respondent submits that Petitioner is entitled to tolling for the period of time that the first and second state petitions were pending. Consequently, Petitioner is entitled to tolling from September 5, 2007 (date first petition signed) through May 15, 2008 (date second petition denied). (Lodged Doc. Nos. 5-8.) See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (stating that the limitations period is tolled while "a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending").
3. No Tolling for Period Between Denial of Second Petition and Filing of Third Petition
Petitioner delayed 81 days after the denial of his second petition on May 15, 2008, before filing his third petition on August 3, 2008. (Lodged Doc. Nos. 8-9.) Respondent argues this delay was unreasonable under Carey v. Saffold, because it is untimely under state law. 536 U.S. at 215. In Evans v. Chavis, the Court found that after the California Court of Appeal denied habeas relief, there was an unjustifiable delay of at least six months before Chavis filed a habeas petition in the California Supreme Court.*fn3 "Six months," said the Court, "is far longer than the 'short period[s] of time,' 30 to 60 days, that most States provide for filing an appeal to the state supreme court. Carey v. Saffold, supra, at 219." Chavis, 546 U.S. at 200.
Pursuant to the Supreme Court's rulings in Saffold and Chavis, Petitioner is only entitled to tolling for this interval if Petitioner did not unreasonably delay. Saffold, 536 U.S. at 225; Chavis, 546 U.S. at 197. Here, he delayed 81 days before filing his habeas petition in the California Supreme Court. The delay is greater than the short period of time of 30 to 60 days provided by most States for filing an appeal and is therefore unreasonable. Chavis, 546 U.S. at 201. Accordingly, Petitioner is not entitled to statutory tolling for the interval between the second and third petition. See e.g. Culver v. Director of Corrections, 450 F.Supp.2d 1135, 1140-1141 (C.D. Cal. 2006) (delays of 97 and 71 days found unreasonable); Hunt V. Felker, No. 1:07-cv-01281, 2008 WL 364995 at *3-4 (E.D. Cal. Feb. 8, 2008) (unpublished) (finding interval of seventy days constituted unreasonable delay in light of Chavis); Bridges v. Runnels, No. 03-2338, 2007 WL 2695177 at *2 (E.D. Cal. Sep. 11, 2007) (unpublished) (finding interval of seventy-six days constituted unreasonable delay in light of Chavis); Martinez v. Guirbino, No. CIV-S-05-1887, 2007 WL 97037 at *2 (E.D. Cal. Jan. 9, 2007) (finding intervals of eighty-one and ninety-one days constituted unreasonable delay in light of Chavis). Moreover, the third petition was identical to the second petition and therefore, it should not have taken Petitioner longer than sixty days to file in the higher court and Petitioner provides no justification otherwise. See Glaude v. Kane, No. 2:06-cv-0968, 2007 WL 781796 at *2 (E.D. Cal. Mar. 8, 2007) (unpublished) (thirty to sixty days is generally permitted for filing a petition for collateral review in a higher state court). As a consequence, Petitioner is not entitled to interval tolling for the 81 days that elapsed between the delay of the second petition on May 15, 2008, and the filing of the third petition on August 3, 2008.
D. State-Created Impediment
In his opposition, Petitioner contends that the State "continues to: a) refuse to acknowledge the time constraints imposed by the AEDPA, and other mandatory procedural deadlines; b) make capricious and other invidious policies that are designed to hinder rather than promote First Amendment rights; c) make no effort to provide for additional seating, despite a constant overflow of prisoners desiring access to the law library; d) cause prisoners to wait outside in inclement weather; e) fail to keep the law library legal books up to the court imposed standard in the Gilmore/Lynch Consent Decree; e) refused to provide Petitioner and other indigent prisoners with enough legal supplies; and f) have consistently utilized the power of the State to impede allowing the maximum amount of law library access." (Opposition, at 2.)
In some instances, the one-year limitations period may begin from "the date on which the impediment of 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." 28 U.S.C. § 2244(d)(1)(B). Section 2254(b)(1)(B) applies only to impediments created by state action that violate the Constitution or laws of the United States. Shannon v. Newland, 410 F.3d 1083, 1088 n.4 (9th Cir. 2005). The petitioner must also demonstrate that the unconstitutional state action actually created the impediment to filing the federal habeas petition in a timely manner. 28 U.S.C. § 2244(d)(1)(B); Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1060 (9th Cir. 2007). In addition, the Ninth Circuit has implied that the petitioner must also demonstrate due diligence. Roy v. Lampert, 465 F.3d 964, 972 (9th Cir. 2006); see also Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).
In Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009), the Ninth Circuit found no merit to the petitioner's claim that he was entitled to commencement of a new limitations period under § 2244(d)(1)(B) due to his placement in administrative segregation and limited access to his legal files and prison law library constituted an unlawful impediment to his constitutional right to access of the courts. The court initially stated that, although similar in style, his "§ 2244(d)(1)(B) claim must satisfy a far higher bar than for equitable tolling." In addition, the court pointed out that there is no constitutional right to file a timely § 2254 petition in federal court, and petitioner is no entitled to commencement of a new limitations period under § 2244(d)(1)(B) "only if his placement in administrative segregation altogether prevented him from presenting his claim in any form, to any court." The court held that because Ramirez was able to file several state habeas petitions, a discovery motion in the state trial court, and a motion to toll the limitations in the federal court, he failed to demonstrate tolling. Therefore, Ramirez's administrative segregation did not deny him of his constitutional right to access the courts. Id. at 997-1001.
In this case, Petitioner has not demonstrated that he was prevented from presenting his claims in any form, to any court. In fact, Petitioner filed the instant federal petition prior to the alleged impediment being removed. See e.g. Felder v. Johnson, 204 F.3d 168, 171, n.9 (5th Cir. 2000) (held the filing of a petition for habeas relief before the alleged impediment was removed lends credence to finding that state action did not prevent the inmate from filing a timely petition). In addition, Petitioner also prepared and filed two habeas petitions within the one-year limitations period. See e.g. Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005), withdrawn, 417 F.3d 1050, amended, 447 F.3d 1165 (9th Cir. 2006) (rejecting claim that alleged insufficient accessibility to law library constituted state-created impediment given prisoner was able to file state habeas petitions before and after the limitations period expired); see also Neuendorf v. Graves, 110 F.Supp.2d 1144, 1153 (N.D. Iowa 2000) (presentation of constitutional claims to state court prior to expiration of AEDPA deadline demonstrated that alleged state-created impediment was not cause of untimeliness). Based on the foregoing, there is no showing that the alleged state-created impediment was the cause of Petitioner's untimeliness and his claim is rejected.
In a related claim, Petitioner argues that the California State Prison, Solano, has implemented a new policy that all inmates are only allowed two consecutive hours in the law library when it is full. (Opposition, at 7.) Petitioner's claim is without merit and was previously rejected by this Court. As previously stated, Petitioner "has failed to demonstrate that he suffers actual injury as a result of the library policies of which he complains." (Court Doc. 21, September 9, 2009, order.) In addition, Petitioner has not been completely deprived of access to the library as he is provided two hours per week. (Id.) Moreover, and fatal to Petitioner's claim, he has failed to demonstrate how the library policy hindered his ability to file a timely petition. Furthermore, Petitioner concedes the policy was implemented after he filed the instant action and therefore it could not have hindered his ability to file a timely petition. Thus, the policy is irrelevant to his claims because the statute of limitations had already expired at the time he filed the instant petition.
E. Equitable Tolling
The limitations period is subject to equitable tolling if the petitioner demonstrates: "(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); see also Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert denied, 522 U.S. 814 (1997). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 U.S. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.1993).
Petitioner makes vague reference to a claim for equitable tolling based on his reliance on a jailhouse lawyer and alleged mental disability. (Opposition, at 1, 9.) Petitioner's reliance on a fellow inmate and the prison's failure to provide Petitioner with legal assistance are not sufficient, because prisoners in California are not entitled to legal assistance in collateral proceedings as a matter of right. Cf. Smith v. Idaho, 392 F.3d 350, 357 (9th Cir. 2004), as amend; see also Henderson v. Johnson, 1 F.Supp.2d 650, 655 (N.D. Tex. 1998) (despite having been decided by his jailhouse lawyer that a writ had been filed, court held petitioner was always in "charge of his habeas petition" and that his reliance on another inmate was voluntary); United States v. Cicero, 214 F.3d 199, 204 (D.C. Cir. 2000) (no equitable tolling where petitioner gave his legal papers to a jailhouse lawyer whose placement in segregation separated petitioner and his papers for some time before the expiration of the one-year grace period until after the filing deadline had passed); Paige v. United States, 171 F.3d 559, 560-61 (8th Cir. 1999) (equitable tolling did not apply to interprison mail delay of motion to petitioner by his brother, who was housed in a different prison and wrote petitioner's motion for him); Mendez v. Artuz, 2000 WL 991336, *2 (S.D.N.Y. July 9, 2000) (fellow inmate's inaccurate legal advice did not excuse petitioner from complying with § 2244(d)(1) deadline; accord Reid v. Lambert, 2004 WL 1305249 (D. Ore. March 29, 2004); cf. Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (reliance on allegedly incompetent jailhouse lawyer not cause for default); Hughes v. Idaho Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (release of inmate's legal assistant not cause for default). Petitioner's reliance on an inmate assistant was strictly voluntary and he could have filed his petition at any time. Thus, Petitioner is not entitled to equitable tolling based on his alleged ignorance of the law or assistance by a jailhouse lawyer.
In addition, Petitioner has not made a sufficient showing of equitable tolling based on an alleged mental disability. Petitioner argument is based solely on a one-sentence conclusory allegation and does not provide any specifics or explanation as to how his alleged mental condition prevented him from timely challenging his conviction. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). The Supreme Court has noted that equitable tolling should be allowed only where the inmate can establish that it was impossible for him to pursue his federal habeas rights during the statute of limitations period due to some profound mental incapacity. Lawrence v. Florida, 549 U.S. 327, 337 (2007); United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004) ("As a general matter, the federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity."); Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998) (acknowledging that courts have allowed equitable tolling based on an inmate's mental condition, but limited to exceptional circumstances, such as institutionalization or adjudged mental incompetence). Therefore, Petitioner has not established entitlement to equitable tolling due his mental state, particularly when he filed state habeas petitions before and after the limitations period expired. Gaston, 417 F.3d at 1034.
F. End of Limitations Period
Since the limitations period commenced on October 11, 2006, and Petitioner is entitled to 254 days of tolling for the first and second petitions, the statute of limitations expired on June 20, 2008. Because Petitioner did not file the instant federal petition until February 28, 2009, it is time-barred under § 2244(d).
G. Subsequent Post-Conviction Actions
Petitioner filed his third state habeas petition on August 3, 2008, after the statute of limitations expired. (Lodged Doc. No. 9.) Because the limitations period had already expired, the collateral challenge had no tolling consequence. In other words, once the limitations period expired, the third state petition did not revive it. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Consequently, the third state petition does not extend the limitations period.
H. Evidentiary Hearing
Petitioner requests an evidentiary to address (1) whether he diligently pursued his rights; (2) his claims of ineffective assistance of counsel; and (3) why he was not allowed access to the law library and determination of responsible individual. Because Respondent's motion to dismiss can be resolved by reviewing the parties filings, an evidentiary hearing is not necessary.
Section 2254(e)(2) states:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-A) the claim relies on
I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Rule 8(a) provides that where a petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and transcripts and record of the state court proceedings are filed, shall, upon review of those proceedings, determine whether an evidentiary hearing is required. The purpose of an evidentiary hearing is to resolve the merits of a factual dispute. An evidentiary hearing on a claim is required where it is clear from the petition that: (1) the allegations, if established, would entitle the petitioner to relief; and (2) the state court trier of fact has not reliably found the relevant facts. See Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.1992).
In this instance, the state court did not find merit to Petitioner's claims sufficient to warrant an evidentiary hearing, and such deficiencies apply in this Court as well. In addition, for the reasons explained above, Petitioner has failed to satisfy either of the requirements for an evidentiary hearing. As discussed herein, the instant motion to dismiss can be resolved on the existing record and an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (evidentiary hearing unwarranted where "the record refutes the applicant's factual allegation's or otherwise precludes habeas relief"). Petitioner will not be provided the opportunity to conduct a fishing expedition to further explore his claims. Accordingly, because Petitioner has failed to demonstrate extraordinary circumstances and due diligence to warrant entitlement to equitable tolling, he is not entitled to an evidentiary hearing. See Roy v. Lampert, 465 F.3d 964, 969-970 (9th Cir. 2006); Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003). Nor has Petitioner demonstrated how an evidentiary hearing will further his claims. Therefore, Petitioner's request for an evidentiary hearing is denied.
Based on the foregoing, it is HEREBY ORDERED that:
1. Respondent's motion to dismiss the instant petition as time-barred under § 2244(d) is GRANTED;
2. The instant petition for writ of habeas corpus is DISMISSED with prejudice; and,
3. The Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a COA, petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the Court does not find that jurists of reason would not find it debatable whether the petition was properly dismissed, with prejudice, as time-barred under 28 U.S.C. § 2244(d)(1). Petitioner has not made the required substantial showing of the denial of a constitutional right.
IT IS SO ORDERED.