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Vu v. Kirkland

June 25, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


On December 15, 2008, this court dismissed as untimely petitioner's amended habeas petition filed April 11, 2008, pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). On January 7, 2010, the Court of Appeals vacated this court's dismissal order, and remanded the action for exercise of this court's informed discretion whether to accept the amended petition nunc pro tunc to a timely date. The mandate issued on January 28, 2010. For the following reasons, in the express, informed discretion of the undersigned, the amended petition should not be filed nunc pro tunc to a date which would make it AEDPA timely.


Plaintiff was convicted on March 15, 2004 of first degree murder, and sentenced on April 14, 2004 to life without the possibility of parole.*fn1 The conviction was affirmed on appeal on December 13, 2005, and the California Supreme Court denied review on March 15, 2006. Docket No. 22, at 1-2 (Amended Petition), and attached documents. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, id., rendering his conviction final upon expiration of the 90-day period for seeking such review, Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999); Supreme Court Rule 13.

Plaintiff's conviction became final on June 14, 2006, and the one-year limitations period of § 2244(d)(1)(A) for filing a habeas petition in this court commenced running the following day, June 15, 2006. See 28 U.S.C. § 2244(d)(1)(A) (petition must be filed within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"); Fed. R. Civ. P. 6(a) ("When the period is stated in days . . . .exclude the day of the event that triggers the period); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Rule 6(a) to limitations period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")).

The last day to file a federal habeas petition was June 14, 2007, absent any tolling of this period due to the pendency of properly filed applications for post-conviction or other collateral review in state court. See 28 U.S.C. § 2244(d)(2); Patterson v. Stewart, supra, 251 F.3d at 1247; cf., Duncan v. Walker, 533 U.S. 167, 173-174, 121 S.Ct. 2120 (2001) (properly filed federal habeas petition does not toll statute of limitations).

Petitioner pursued one state court collateral action, filed February 7, 2007 in Sacramento County Superior Court. See, Respondent's Lodged Item No. 3 (Docket No. 28); Houston v. Lack, 487 U.S. 266 (1988) (delivery by pro se prisoner to prison authorities of papers for mailing to court deemed filed upon delivery). The state petition was denied on May 10, 2007 (Lodged Item No. 4), thus tolling the one-year statute of limitations under AEDPA for a period of 94 days.

Thus, petitioner's deadline for filing his federal habeas petition, as all parties would now agree, was September 14, 2007.*fn2

Petitioner filed his initial federal habeas petition in pro se on March 14, 2007 -- nearly six months prior to the expiration of the statute of limitations. The petition listed five grounds for relief, Docket No. 1, at 2, reflecting the issues petitioner exhausted before the California Court of Appeal and California Supreme Court, and referred to "attachments setting forth all factual and legal grounds on which relief is sought," id. at 5. However, no documents were attached. Soon after filing, on April 9, 2007, the magistrate judge appointed the Federal Defender to represent petitioner, "[i]n light of the length of petitioner's sentence" and "the interests of justice." Docket No. 3, at 1. Defense counsel was required to inform the court whether an amendment to the petition would be forthcoming. 2. On April 24, 2007, at the request of the Federal Defender, attorney Krista Hart was substituted as petitioner's appointed counsel.

On May 9, 2007, the parties timely filed a Joint Scheduling Statement wherein petitioner's counsel sought until July 8, 2007 "to file either (1) a statement stating that petitioner will stand on the existing petition and memorandum of points and authorities; (2) an amended petition that will proceed on exhausted claims; or (3) an amended petition that identifies both exhausted and unexhausted claims, demonstrates good cause for having failed to exhaust state court remedies as to any claims, and expresses any intention to pursue unexhausted claims." Docket No. 6, at 1-2.

The magistrate judge granted the request, requiring that by July 8, 2007, petitioner was to file, inter alia, an amended petition. Docket No. 10, at 1.

On July 8, 2007, petitioner's counsel sought an extension of the deadline to September 10, 2007, stating that she was still obtaining court records. Docket No. 12, at 1-2. The magistrate judge granted the request, again clarifying that, "On or before September 10, 2007, petitioner shall file either a statement that he shall stand on the existing petition, an amended petition containing exhausted claims, or an amended petition containing exhausted and unexhausted claims and a request to hold this action in abeyance pending further exhaustion." Docket No. 13, at 1.

On September 14, 2007, petitioner made a request to extend the deadline to November 19, 2007. Docket No. 14, at 1-2. The request was granted by order of the magistrate judge filed October 24, 2007. Docket No. 15, at 1.

On January 10, 2008, the magistrate judge issued an order directing petitioner to show cause why no filing had been made. Docket No. 16. Petitioner's counsel responded, describing her heavy case load and oversight in filing a request that reflected the parties' agreement to a 60-day extension of time. Docket No. 17, at 2-3. On January 29, 2008, the magistrate judge discharged the order to show cause and granted petitioner an extension of thirty days. Docket No. 18.

Petitioner's counsel sought yet another extension of time on March 3, 2008, on the ground that she needed "additional time to complete the legal research necessary prepare the amended petition." Docket No. 19, at 1-2. The magistrate judge granted the request on March 11, 2008, but stated that "[n]o further requests for extension of time will be granted but for substantial cause." Docket No. 20.

One day after the deadline, on April 11, 2008, petitioner's counsel filed the amended petition and requested a one-day extension of the deadline, again citing her heavy caseload. Docket No. 21, 22. The magistrate judge granted the request, and deemed the amended petition timely filed. Docket No. 23.

Thereafter, respondent moved to dismiss the amended petition on the ground that it was filed beyond the one-year statute of limitations period contained in 28 U.S.C. § 2244(d)(1)(A), and could not relate back to the filing date of the original petition because the latter failed to meet the essential briefing requirements set forth in Rule 2(c), Federal Rules Governing Habeas Cases Under Section 2254.*fn3 See Docket No. 26 (Motion to Dismiss). Petitioner opposed the motion, and respondent filed a reply. Docket Nos. 30, 31.

The magistrate judge held a hearing on the motion on September 4, 2008, and, in findings and recommendations filed September 15, 2008, recommended that the motion be denied. Docket No. 33. The magistrate judge found that petitioner adequately identified his claims in the original petition, and that the amended petition should relate back to the filing date of the original petition. See Fed. R. Civ. P. 15(c). The magistrate judge reasoned:

Although not a model of clarity, it is clear that the original petition intended to raise all claims raised on direct appeal in state court, which were identified in the original petition. It also appears that petitioner meant to attach his state appellate briefing to the original petition which described the claims in more detail but inadvertently failed to do so. "Pro se petitioners may not be held to the same technical standards as litigants represented by counsel." Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002), citing Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015 (1941) (pro se petition for habeas corpus "ought not to be scrutinized with technical nicety"); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990) ("This court recognizes that it is has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.").

Because the timely filed original petition adequately identified the claims on which petitioner intended to proceed, now raised in the amended petition, albeit indirectly, this action is not barred by the statute of limitations. ...

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