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Phanhaha Xabandith v. Francisco Jacquez*Fn1

January 31, 2011

PHANHAHA XABANDITH, PETITIONER,
v.
FRANCISCO JACQUEZ*FN1 ,
RESPONDENT.



ORDER ANDFINDINGS 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. Before the court is respondent's motion to dismiss the petition as untimely filed. Petitioner has filed an opposition to that motion and respondent has filed a reply.

BACKGROUND

Petitioner challenges a 2006 judgment of conviction entered against him in the Sacramento County Superior Court on charges of assault with an assault weapon (Cal. Penal Code § 245(a)(3)), shooting from a motor vehicle (Cal. Penal Code § 12034(c)), possession of an assault weapon (two counts) (Cal. Penal Code § 12280(b)), and being a felon in possession of a firearm (three counts) (Cal. Penal Code § 12012(a)(1)). The jury also found various enhancement allegations to be true. (Petition at 1; Resp't's Lod. Doc. 1.) Petitioner was sentenced to a determinate state prison term of thirty years and four months consecutive to an indeterminate state prison term of twenty-five years to life in prison. (Resp't's Lod. Doc. 1.)

Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On May 2, 2007, the state appellate court affirmed the judgment of conviction. (Resp't's Lod. Doc. 2.) Petitioner then sought review in the California Supreme Court, which was denied on July 11, 2007. (Resp't's Lod. Doc.3-4.)

Petitioner subsequently filed three post-conviction collateral challenges in the state courts.*fn2 On June 30, 2008*fn3 , petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Resp't's Lod. Doc. 5.) On August 15, 2008, that court denied the petition on the merits. (Resp't's Lod. Doc. 6.) On December 27, 2008, petitioner constructively filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 7.) On January 8, 2009, the California Court of Appeal summarily denied the petition. (Resp't's Lod. Doc. 8.) On February 20, 2009. petitioner constructively filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Lod. Doc. 9.) The California Supreme Court summarily denied that petition on August 12, 2009, In re Swain, 34 Cal. 2d 300, 304 (1949). (Resp't's Lod. Doc.10.)

On August 29, 2009, petitioner signed his federal habeas petition and it was filed by this court on September 4, 2009. (Doc. No. 1.) On November 20, 2009, petitioner filed an amended petition which is the operative petition in this action. (Doc. No. 12.)

PARTIES' ARGUMENTS

Respondent contends that the one-year statute of limitation for the filing of a federal habeas petition in this case began to run on October 9, 2007, when petitioner's judgment of conviction became final, and continued to run for 265 days until June 30, 2008, the date on which petitioner filed his habeas petition with the Sacramento County Superior Court. (Resp't's Mot. to Dismiss (hereinafter "MTD") at 3-4.) Respondent argues that petitioner is not entitled to statutory tolling for the 134-day period between the Sacramento County Superior Court's denial of that petition on August 15, 2008 and his filing of his habeas petition with the California Court of Appeal on December 27, 2008, because, according to respondent, petitioner's delay in filing the latter petition was unreasonable. (Id. at4-5.)

Respondent concedes that the one-year limitations period for seeking federal habeas relief was statutorily tolled for 47 days during the pendency of the habeas petition before the Sacramento County Superior Court. Accordingly, respondent asserts that the last day for petitioner to file a timely federal habeas petition in this case was November 25, 2008. (Id. at 5.) Because petitioner's second and third state habeas petitions were filed after that date, respondent argues, they do not extend or toll the running of the AEDPA limitations period. (MTD at 5-6.) Thus, respondent concludes, the instant petition was filed over nine months after the statute of limitations expired and is time-barred. (Id. at 5.)

In opposing the motion to dismiss, petitioner claims that he is entitled to statutory tolling of the limitations period "for the period between the June 30, 2008 filing of his first habeas petition in superior court and the August 12, 2009 denial by the California Supreme Court of the final petition[,]" a total of approximately fourteen months. (Opposition to MTD (hereinafter "Opp.") at 4.)

Petitioner also alleges that "he was denied access to his legal materials from May 26, 2008 through December 2, 2008" and is thus entitled to equitable tolling of the AEDPA statute of limitations during that period. (Id.) Specifically, petitioner represents that "[d]uring the applicable time period" he "was doing extensive legal research and investigation" and that, on May 26, 2008, "the investigation was halted due to [petitioner's] placement in administrative segregation where he was denied access to his legal materials for significant periods of time." (Opp. at 2.) As a result, petitioner states he "had no choice but to file" his first state habeas petition in the Sacramento County Superior Court "with what he could recall from his memory." (Id.) Petitioner further claims that, while in administrative segregation, he "requested [] his legal materials numerous times, which was denied, and caused a four month gap" before filing his habeas petition in the court of appeal. (Id.) Given the applicability of statutory and/or equitable tolling, petitioner argues, the habeas petition filed with this court was submitted in a timely fashion and respondent's motion to dismiss should be denied.

STATUTE OF LIMITATIONS UNDER THE AEDPA

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(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 ...


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