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Moore v. Martel

April 8, 2010

KHALID JIBRIB MOORE, PETITIONER,
v.
MICHAEL MARTEL, 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 November 18, 2009, the undersigned ordered respondent to file and serve a response to the petition. On February 11, 2010, 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 November 17, 1999, petitioner entered a negotiated plea of no contest to one count of robbery. Thereafter, a Sacramento County Superior Court jury found a number of sentencing enhancement allegations to be true. On August 14, 2000, the Superior Court sentenced petitioner to an indeterminate term of twenty-five years to life in state prison. On August 13, 2001, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. Petitioner did not seek review with the California Supreme Court. (Pet. at 2; Resp't's Lodged Docs. 1-2.)

Petitioner subsequently filed seven petitions seeking habeas corpus relief in state court. On October 31, 2004*fn1 , he filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on November 18, 2005. On November 15, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on November 30, 2006. On June 3, 2007, petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on June 21, 2007. On July 29, 2007, petitioner filed a third petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on September 13, 2007. On January 6, 2008, petitioner filed a second petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on March 13, 2008. On June 26, 2008, petitioner filed a fourth petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on July 3, 2008. Finally, on December 28, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on July 29, 2009. (Resp't's Lodged Docs. 3-20.)

On October 5, 2009, petitioner commenced this action by filing his federal petition for writ of habeas corpus with this court. Therein, petitioner appears to assert the following eight claims for relief: (1) he was denied his right to state habeas corpus relief because of pervasive bias in the California judiciary; (2) the trial court exceeded its jurisdiction when it sentenced him to twenty-five years to life in state prison; (3) he was denied his right to appeal his conviction; (4) he was denied his right to due process when the prosecutor used peremptory challenges to exclude African American females from the jury; (5) the trial court exceeded its jurisdiction when it imposed fines other than the minimum fine allowed under state law; (6) the trial court lacked subject matter jurisdiction to accept petitioner's no contest plea; and (7) petitioner's no contest plea was invalid because it was coerced. (Pet. at ii-iv & 3.)*fn2

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 August 13, 2001, the California Court of Appeal affirmed petitioner's conviction, causing his judgment of conviction to become "final" forty days thereafter, on September 22, 2001, after the time for seeking review in the California Supreme Court expired. Respondent argues that the one-year statute of limitations for the filing of a federal habeas petition began to run the following day, on September 23, 2001, and expired one year later on September 22, 2002. (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. Respondent argues, however, that petitioner did not file his first state habeas petition until after the statute of limitations for the filing of a federal petition had expired. Respondent argues that petitioner's filings in state court after the AEDPA statute of limitations expired cannot serve to extend that limitations period. In addition, respondent argues that the California Supreme Court denied petitioner's seventh habeas petition with a citation to In re Robbins, 18 Cal.4th 770 (1998), meaning that petitioner's seventh habeas petition was not properly filed and therefore cannot serve to toll the limitations period. (Resp't's Mot. to Dismiss at 4-5.)

II. Petitioner's Opposition

In opposition to respondent's motion to dismiss, petitioner argues that 28 U.S.C. § 2244(d)(1)(D) and not 28 U.S.C. § 2244(d)(1)(A) applies to his pending petition. Petitioner argues that under § 2244(d)(1)(D), the statute of limitations for the filing of his federal petition did not begin to run until he learned of the factual predicate of his claims. Here, petitioner argues with respect to his first claim for relief that although he suspected that there may be pervasive bias in the California judiciary, but he had no firm belief or evidence to support his suspicion. Petitioner asserts that his mother, however, gathered such evidence over a three-month period, and that after she provided him the evidence he exhausted his claims in state court. Petitioner appears to argue that because § 2244(d)(1)(D) applies to his first claim for relief, it also applies to his other claims for relief. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-3.)

Petitioner also briefly argues that § 2244(d)(1)(B) may apply to his petition. Specifically, petitioner in this regard appears to argue that he is entitled to a delayed commencement of the statute of limitations because the pervasive bias in the California judiciary constitutes a government-imposed impediment for purposes of § 2244(d)(1)(B). (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 3.)

III. Respondent's Reply

In reply, respondent argues that petitioner's claim regarding bias in the California judiciary is not cognizable in these federal habeas corpus proceedings because it is an attack on his state post-conviction proceedings and not an attack the proceedings that resulted in his confinement. Moreover, respondent argues that insofar as petitioner is attempting to secure a later commencement date of the statute of limitations to challenge the proceedings that resulted in his confinement, he is not entitled to a delayed commencement of the statute of limitations because he was not diligent in discovering the factual predicate for his claims. Specifically, respondent notes that while petitioner claims that judicial bias took place at his ...


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