The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION FOR THE APPOINTMENT OF COUNSEL (DOC. 28)
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION AS UNTIMELY (DOC. 15)
ORDER DIRECTING THE CLERK TO ENTER JUDGMENT IN FAVOR OF RESPONDENT
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on September 21, 2009, and on behalf of Respondent on February 10, 2010.
Pending before the Court is Respondent's motion to dismiss the petition for untimeliness, which was filed on March 9, 2010, along with lodged documents. Petitioner filed an opposition with numerous exhibits on March 26, 2010. Respondent filed a reply on May 5, 2010. Thereafter, in response to the Court's direction, Respondent filed a supplemental brief and additional documentation of the state court proceedings on July 12, 2010; Petitioner filed a response and a request for appointment of counsel on July 22, 2010.
I. Motion for Appointment of Counsel
In the forty-five-page supplemental response filed on July 22, 2010, Petitioner requests that counsel be appointed in order for him to be fairly represented in this Court. (Doc. 28, 2.)
There currently exists no absolute right to appointment of counsel in habeas proceedings. See e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958); Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469 U.S. 823 (1984).
A Magistrate Judge may appoint counsel at any stage of a habeas corpus proceeding if the interests of justice require it.
18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254 Cases (Habeas Rules). A district court evaluates the likelihood of a petitioner's success on the merits and the ability of a petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Here, the Respondent has not filed a response to the petition concerning the merits of the case, but it does not appear that an evidentiary hearing is necessary. The issues raised in the motion to dismiss have been the subject of extensive briefing and documentation. At this stage of the case, it does not appear that the interests of justice require the appointment of counsel.
Accordingly, Petitioner's motion for the appointment of counsel will be denied.
II. Motion to Dismiss for Untimeliness
Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for in 28 U.S.C. § 2244(d).
Habeas Rule 4 allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."
The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated 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 a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a 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 may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss addresses the filing of a petition outside of the one-year limitation period of 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are mainly to be found in copies of the official records of state judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
III. The Limitations Period
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Petitioner filed his petition for writ of habeas corpus on June 24, 2009. Thus, the AEDPA applies to the petition.
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). It further identifies the pendency of some proceedings for collateral review as a basis for tolling the running of the period. As amended, subdivision (d) provides:
(d)(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.
IV. Commencement of the Running of the Statutory Period
Pursuant to § 2244(d)(1)(A), the limitation period runs from the date on which the judgment became final.
The parties disagree on the date of the finality of the judgment and, specifically, the date on which direct review was concluded, or the point at which the time for seeking direct review expired within the meaning of § 2244(d)(1)(A). Respondent contends that the statute began to run on the date the time for seeking direct review expired, namely, sixty days after sentencing pursuant to state law*fn1 that sets forth the time limit, or on January 16, 2006. Petitioner asserts that he filed in the Superior Court a "Notice of Appeal/Certificate of Probable Cause" on December 22, 2005 pursuant to Cal. Pen. Code § 1237.5 and thus filed a timely appeal from the judgment of November 17, 2005; therefore, direct review did not conclude, or if it did, he was denied his right to appeal.
An abstract of judgment of the Superior Court of the County of Stanislaus in cases numbered 1086806 and 1099101 that was filed on November 17, 2005, reflects that upon his plea of guilty, Petitioner was convicted of selling in 2004 a controlled substance in violation of Cal. Health & Saf. Code § 11352(a), and possessing in 2005 marijuana in jail in violation of Cal. Pen. Code § 4573.6. (LD 1, Petr's Opp., Ex. 1.)*fn2 On November 17, 2005, Petitioner was sentenced to a determinate term of thirteen years in prison. (Id.)
Petitioner has submitted a copy of a Superior Court form for a notice of appeal and request for certificate of probable cause that bears the case number pertaining to the charge of sale of a controlled substance, Petitioner's signature, and a date of December 22, 2005. (Petr.'s Opp., Ex. 3, Doc. 16, 11-20.) In the request for certificate of probable cause, Petitioner stated that the legality of his plea was affected by his public defender's failure to move to suppress unspecified evidence, move to dismiss the case, and seek reduced bail, requests which the state court had denied when Petitioner himself requested them. Petitioner criticized the evidence of the drug transaction (a videotaped transfer of funds to Petitioner which Petitioner says does not disclose a drug transaction) and the potential use of prior robbery convictions or "strikes" to enhance his sentence.
A copy of a memo dated January 4, 2006, to an unspecified recipient, states that Petitioner was sending a copy of his appeal that he had already sent on December 22, 2005, and was notifying the Superior Court that he had been moved to Vacaville. (Petr.'s Ex. II, Doc. 16, 11-20.)
A copy of a minute order and an appellate department memorandum of the Stanislaus County Superior Court (SCSC) dated January 10, 2006, reflects that the request for probable cause was denied. (Petr.'s Exh. 2, Doc. 16, pp. 22-23.) A deputy clerk of the SCSC wrote Petitioner on January 12, 2006, informing him that his notice of appeal was "inoperative pursuant to CRC Rule 30(b)(1) as your Request for Certificate of Probable Cause was denied." The deputy returned the notice to Petitioner marked as inoperable. (LD 3.)
On January 3, 2006, Petitioner moved in the SCSC for an order directing his public defender at the trial level to furnish his trial files to Petitioner because despite attempts by Petitioner and his wife to contact counsel by telephone or to obtain the case files during a few attorney visits, Petitioner did not obtain the files; Petitioner sought to present a direct or collateral challenge to his conviction and sentence. (Doc. 28, 24-27.) Petitioner simultaneously moved for production of a transcript of the proceedings in order to prepare a petition for writ of habeas corpus. (Id. at 29-34.) The motions were denied by an undated order. (Id. at 35.)
A docket (register of actions) of the Court of Appeal of the State of California, Fifth Appellate District (DCA) lodged by Respondent (LD 2) reflects that a notice of appeal was lodged or received by the DCA on February 22, 2006, along with a motion to withdraw a guilty plea and notice of motion to appeal. A ruling of February 22, 2006 is described as "Ruling on motion," and the notes state, "To withdraw guilty plea & motion to appeal -timeless." No order of that date is submitted. However, an order of the DCA filed on February 24, 2006, set a deadline for briefing the issue of the timeliness of the filing of the notice of appeal. (LD 2.) In that order, it is stated that although the abstract of judgment was filed on November 17, 2005, "... the notice of appeal was filed on February 16, 2006...." (Id.) In the order, the DCA requested briefing on whether or not the notice of appeal was timely filed and, if the answer to the first question was negative, then whether the appeal should be dismissed as untimely. (Id.) In the same order, citing People v. Everett, 186 Cal.App.3d 274, 279 (1986), the DCA denied Petitioner's request for the DCA to issue a certificate of probable cause "without prejudice to petitioner filing a petition for writ of mandate challenging the superior court's denial of the request filed in that court." (Id.)
When no response to the briefing order was received by the DCA, it ordered the appeal dismissed by order filed on March 20, 2006, ...