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Brown v. Hill

October 8, 2010

MARLOWE BROWN, PETITIONER,
v.
RICK HILL, ACTING WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a third amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 2, 2010, the undersigned ordered respondent to file and serve a response to the petition. On May 27, 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 June 10, 2004, a Sacramento County Superior Court jury found petitioner guilty of attempted murder, infliction of corporal injury upon a cohabitant, and assault with a deadly weapon. The trial court found that petitioner had suffered two prior serious felony convictions and sentenced him to a term of twenty-five years to life plus sixteen years in state prison. On July 6, 2005, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. On September 21, 2005, the California Supreme Court denied review. (Resp't's Lodged Docs. 1-4.)

Petitioner subsequently filed seven petitions seeking habeas corpus relief in state court. Under the mailbox rule*fn1 , on December 28, 2005, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on February 28, 2006. On April 22, 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 May 11, 2006. On July 2, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on February 7, 2007. On February 20, 2008, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court which was denied on July 30, 2008. On December 1, 2008, petitioner filed a second petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on January 6, 2009. On February 17, 2009, petitioner filed a third petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on April 8, 2009. Finally, on April 27, 2009, petitioner filed a third petition for writ of habeas corpus in the California Supreme Court which was denied on September 9, 2009. (Resp't's Lodged Docs. 5-18.)

On November 18, 2009, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court. The court dismissed the petition with leave to amend due to his failure to name a proper respondent. Although petitioner filed an amended petition, the court subsequently dismissed it for failure to name the proper respondent and also dismissed petitioner's second amended petition due to his failure to clearly state the nature of his claims, again with leave to file a third amended petition. On March 18, 2010, petitioner filed his third amended petition now pending before the court.

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent moves to dismiss the pending petition, arguing that it is time-barred.

Specifically, respondent argues that on September 21, 2005, the California Supreme Court denied petitioner's petition for review, causing his judgment of conviction to become "final" on December 20, 2005, after the time for filing a petition for writ of certiorari expired. Respondent argues that the one-year statute of limitations for the filing a federal habeas petition began to run the following day, on December 21, 2005, and expired one year later on December 20, 2006. (Resp't's Mot. to Dismiss at 4.)

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 concedes that petitioner is entitled to tolling for the pendency of this first through third state habeas petitions. However, respondent argues that even granting petitioner 406 days of tolling, the statute of limitations for the filing of his federal habeas petition expired on January 30, 2008. Petitioner did not file his federal habeas petition until November 19, 2009. Accordingly, respondent maintains that the petition is untimely and must be dismissed with prejudice. (Resp't's Mot. to Dismiss at 4-5.)

Respondent acknowledges that petitioner filed four subsequent habeas petitions in state court. However, respondent argues that petitioner is not entitled to tolling for the period of time his fourth, fifth, sixth, and seventh petitions were pending in the state courts because, inter alia, the Sacramento County Superior Court and the California Supreme Court denied those petitions as untimely. Respondent contends that untimely petitions submitted in state court are not "properly filed," and therefore cannot serve to toll the AEDPA statute of limitations period. (Resp't's Mot. to Dismiss at 5.)

II. Petitioner's Opposition

In opposition to respondent's motion to dismiss, petitioner argues that he has been denied his constitutional rights and is entitled to habeas relief on the claims in his petition. Petitioner reiterates his substantive claims that he was denied effective assistance of counsel in state court and that he was not ...


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